[Federal Register Volume 72, Number 188 (Friday, September 28, 2007)]
[Proposed Rules]
[Pages 55166-55169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-19133]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070827484-7485-01]
RIN 0648-AV99


Fisheries of the Northeastern United States; Recreational 
Management Measures for the Summer Flounder Fishery; Fishing Year 2008

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes coastwide summer flounder recreational 
management measures to administratively complete the rulemaking process 
initiated in March 2007. This action is necessary to propose 
appropriate coastwide management measures to be in place on January 1, 
2008, following the expiration of the current state-by-state 
conservation equivalency management measures on December 31, 2007. The 
intent of these measures is to prevent overfishing of the summer 
flounder resource during the interim between the aforementioned 
expiration of the 2007 recreational measures and the implementation of 
measures for 2008.

DATES: Comments must be received by 5 p.m. local time, on October 15, 
2007.

ADDRESSES: You may submit comments by any of the following methods:
     E-mail: [email protected]. Include in the subject line 
the following identifier: ``Comments on 2008 Summer Flounder Interim 
Recreational Measures.''
     Federal e-rulemaking portal: http://www.regulations.gov
     Mail: Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. 
Mark the outside of the envelope: ``Comments on 2008 Summer Flounder 
Interim Recreational Measures.''
     Fax: (978) 281-9135.
    Copies of the Supplemental Environmental Assessment, as well as the 
original Environmental Assessment, Regulatory Impact Review, and 
Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) completed for the 
2007 recreational management measures are available from Daniel T. 
Furlong, Executive Director, Mid-Atlantic Fishery Management Council, 
Room

[[Page 55167]]

2115, Federal Building, 300 South New Street, Dover, DE 19901-6790. The 
Supplemental Environmental Assessment is also accessible via the 
Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Michael P. Ruccio, Fishery Policy 
Analyst, (978) 281-9104.

SUPPLEMENTARY INFORMATION: This proposed action is necessary to 
complete the final detail of the 2007 summer flounder recreational 
management measures rulemaking and should not be confused with upcoming 
process to develop the 2008 recreational management measures. The Mid-
Atlantic Fishery Management Council (Council) will begin development of 
the 2008 recreational management measures, based on updated assessment 
information and 2007 fishery information, through its Monitoring 
Committee meeting in November 2007. The Council will consider the 
Monitoring Committee's recommendations for 2008 management measures 
during its December 2007 meeting in Secaucus, NJ. The following 
summarizes the details of several events that transpired before and 
during the initial recreational management measures rulemaking that 
brought about the need for this action.

2007 Recreational Management Measures Options

    Under the Summer Flounder, Scup, and Black Sea Bass Fishery 
Management Plan (FMP), the Council may recommend and NMFS may approve 
one of two approaches for managing the summer flounder recreational 
fishery: State-by-state conservation equivalency with a precautionary 
default backstop approved by the Atlantic States Marine Fisheries 
Commission (Commission), which cooperatively manages summer flounder in 
state waters, and NMFS; or coastwide management measures. The FMP 
requires that the Council review updated assessment and fishery 
information on an annual basis and recommend to NMFS both a Total 
Allowable Landings (TAL) and recreational management measures. Under 
conservation equivalency, any state that fails to provide measures for 
Commission and NMFS review, or whose measures are found not to be 
sufficient to achieve the required reduction in recreational landings, 
is bound to the precautionary default measures. The precautionary 
default is set at or below the level of reduction needed for the state 
with the highest reduction level. Coastwide measures are designed to 
achieve the necessary reduction in landings for the entire coast.

Council's Proposed 2007 Measures

    The Council indicated, during its December 2006 meeting, that its 
preferred alternative for 2007 summer flounder recreational fishery 
management was conservation equivalency. Under this approach, states 
craft measures that produce the required state-by-state reduction in 
recreational landings to constrain landings within their respective 
targets. NMFS implemented conservation equivalency to manage the 2007 
recreational summer flounder fishery, consistent with the Council's 
recommendation, on June 1, 2007 (72 FR 30492). The precautionary 
default measures were not required for any state, as both the 
Commission and NMFS approved and implemented the individual states' 
measures for equivalent reductions. Detailed information on the 2007 
conservation equivalent and precautionary default measures are found in 
the June 1, 2007, final rule and is not repeated here.
    The Council proposed, as the non-preferred alternative for the 2007 
summer flounder recreational fishery management, coastwide measures of 
a 19-inch (48.26-cm) minimum fish size, a 1-fish possession limit, and 
a year-round season. In a year when conservation equivalency is 
implemented, the coastwide measures are not in effect during the 
fishing year but become the regulatory default measures in place on 
January 1 in the year after conservation equivalency has expired. These 
measures remain effective until superseded by new measures, implemented 
by NMFS as part of the annual management measures review conducted by 
the Council, as required by the FMP.

Events that Transpired Before and During Rulemaking Requiring Change to 
Proposed Coastwide Measures

    The 2007 summer flounder TAL was increased by NMFS from 12.983 
million lb (5,889 mt), as published in the Federal Register on December 
14, 2006 (71 FR 75134), to 17.112 million lb (7,762 mt) on January 19, 
2007 (72 FR 2458). The increase in TAL was the result of the Secretary 
of Commerce's determination that the rebuilding time line for summer 
flounder could be extended for 3 years, consistent with authority 
granted in the Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act of 2006 (Reauthorized Magnuson-Stevens Act). The 
rationale for the respective TALs, including the justifications for 
increasing the summer flounder rebuilding time line and increasing the 
2007 TAL, are included within the individual rules and are not repeated 
here.
    The development of the 2007 summer flounder recreational management 
measures occurred concurrently with the passage of the Reauthorized 
Magnuson-Stevens Act by Congress, analysis of recreational management 
measures alternatives by Council and NMFS staff, the December 2006 
Council meeting, and the aforementioned increase in TAL following the 
Secretarial determination to extend the summer flounder rebuilding time 
line. Because of this succession of overlapping events from December 
2006 through January 2007, during the development of recreational 
management measures, insufficient time was available for the 
development of coastwide management alternatives based on the higher 
TAL and subsequently higher recreational harvest limit before NMFS 
published the proposed 2007 recreational management measures (72 FR 
12158, March 15, 2007).
    Individual states do not begin to develop conservation equivalency 
measures until after the Council and Commission's Summer Flounder 
Management Board (Board) have identified conservation equivalency as 
the preferred management system for the upcoming year. The Council and 
the Board identified conservation equivalency as their preferred 
alternative for 2007 management during the December 2006 Council 
meeting. NMFS's emergency action to increase the 2007 TAL occurred in 
mid-January 2007. As a result, states were able to craft their 2007 
conservation equivalency proposals consistent with the level of 
reduction necessary to constrain recreational landings to the targets 
resulting from the increased 17.112-million-lb (7,762-mt) TAL. However, 
the analysis had already been conducted for the coastwide measures 
alternative based on the recreational harvest limit associated with the 
lower 12.983-million-lb (5,889-mt) TAL and was not revised prior to the 
publication of the recreational management measures proposed rule (72 
FR 12158, March 15, 2007). In response to the proposed rule, members of 
the public commented that the proposed coastwide measures of a 19-inch 
(48.26-cm) minimum fish size, 1-fish possession limit, and year-round 
season would be unduly restrictive if implemented, as it would 
constrain landings to approximately 55 percent of the recreational 
harvest limit under the

[[Page 55168]]

increased 17.112-million-lb (7,762-mt) TAL.
    This issue was rendered moot for 2007 as conservation equivalency 
was implemented by NMFS instead of the coastwide measures (72 FR 30492, 
June 1, 2007). However, on January 1, 2008, after conservation 
equivalency has expired for the 2007 fishing year, the coastwide 
measures will become the interim default measures and remain in place 
until new recreational management measures are developed and 
implemented as part of the annual recreational management measures 
review in late spring/early summer 2008. NMFS indicated in the 2007 
recreational management measures final rule (72 FR 30492, June 1, 2007) 
that a separate notice and comment rulemaking, to propose and implement 
an coastwide measure that is based on the increased TAL to serve as the 
interim 2008 management measures after conservation equivalency has 
expired, would be undertaken. This proposed rule is the initiation of 
that action, which is largely administrative and designed to complete 
the normal recreational management measures rulemaking process that had 
been constrained by the options available for consideration during the 
initial rulemaking that resulted in conservation equivalency for 2007.

Proposed Interim Coastwide Measure

    The Commission's Technical Committee (TC) conducted analysis on 
coastwide measure alternatives after the implementation of the 
increased TAL. Several options considered by the TC were designed to 
constrain landings to or below the increased 2007 recreational harvest 
limit of 2,421,460 fish. The TC provided analysis that indicated an 
18.5-inch (46.99-cm) minimum fish size with a 4-fish possession limit 
and a year-round season would constrain landings to 90 percent of the 
harvest limit (2,181,735 fish). NMFS proposes to now implement these 
measures as the 2007 coastwide measures. As a result, these measures, 
if adopted, would complete the normal regulatory process that occurs 
when conservation equivalency is utilized to manage the summer flounder 
recreational fishery, as was the case for 2007. These measures, if 
adopted, will replace the existing coastwide measures regulatory 
language of a 17-inch (43.18-cm) minimum fish size, a 4-fish possession 
limit, and no closed season, and serve as the default management 
measures in place on January 1, 2008, after conservation equivalent 
measures have expired.
    The 2008 TAL and the resulting recreational harvest limit will not 
be finalized and the Council will not recommend recreational harvest 
measures until December 2007. It is not certain, at this time, if the 
coastwide measure will require revision as part of the updated 2008 
recreational management measures, as the annual development of those 
measures will not begin until later this year.
    These measures, if implemented, should be sufficiently risk averse 
as interim measures until new measures, based on the updated 2007 stock 
assessment, are developed and implemented. Summer flounder are 
typically found offshore during colder winter months and only limited 
recreational fisheries occur in the southern range of the stock during 
spring. Marine Recreational Fisheries Statistical Survey (MRFSS) data 
from 1994-1998 show that less than 0.9-percent of the annual harvest 
occurs in the first two MRFSS data collection periods (called waves) of 
the year (January-April). Approximately 28 percent of the coastwide 
summer flounder harvest occurs in Wave 3 (May-June). The difference in 
implementation time between conservation equivalency and coastwide 
measures is the time it takes states to develop, and get approved, 
individual measures under conservation equivalency, should that 
management method be utilized in 2008.
    Based on recent years' development and rulemaking schedule when 
conservation equivalency has been utilized for summer flounder 
recreational management measures, it is expected that updated measures, 
based on 2007 recreational landings and adjusted for any quota 
overages, would be in place before Wave 4 (July-August) and the bulk of 
summer flounder recreational fisheries begin in 2008. If different 
coastwide measures are recommended by the Council and Commission and 
implemented by NMFS for 2008 management, it is expected that those 
measures would be in place during Wave 2 (March-April 2008).

Classification

    NMFS has determined that the proposed rule is consistent with the 
FMP and preliminarily determined that the rule is consistent with the 
Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This proposed rule does not duplicate, overlap, or conflict with 
other Federal rules.
    An IRFA was prepared for the 2007 recreational management measures 
rulemaking process, as required by section 603 of the RFA. The IRFA 
describes the economic impact this proposed rule, if adopted, would 
have on small entities. A description of the action, why it is being 
considered (i.e., what problem it addresses), and the legal basis for 
this action are contained in the initial recreational management 
measures proposed rule (72 FR 12158, March 15, 2007 ) and at the 
beginning of that rule's preamble and in the SUMMARY section of this 
proposed rule's preamble. A detailed summary of the analysis conducted 
is included in the initial recreational management measures proposed 
rule (72 FR 12158, March 15, 2007). An additional summary follows. A 
copy of the complete IRFA is available from the Council (see 
ADDRESSES).
    The proposed action could affect any recreational angler who fishes 
for summer flounder, in the EEZ or on a party/charter vessel issued a 
Federal permit for summer flounder. However, the IRFA focuses upon the 
impacts on party/charter vessels issued a Federal permit for summer 
flounder because these vessels are considered small business entities 
for the purposes of the Regulatory Flexibility Act, i.e., businesses 
with gross revenues of up to $6.5 million. These small entities can be 
specifically identified in the Federal vessel permit database and would 
be impacted by the recreational measures, regardless of whether they 
fish in Federal or state waters. Although individual recreational 
anglers are likely to be impacted, they are not considered small 
entities under the RFA. Also, there is no permit requirement to 
participate in these fisheries; thus, it would be difficult to quantify 
any impacts on recreational anglers in general.
    The proposed measures could affect any of the 1,006 vessels 
possessing a Federal charter/party permit for summer flounder in 2005, 
the most recent year for which complete permit data are available. 
However, only 66 of these vessels reported active participation in the 
recreational summer flounder fishery in 2005.
    In the IRFA, the no-action alternative (i.e., Alternative 1, 
maintenance of the regulations as codified) is defined as continuation 
of the following measures for summer flounder: Coastwide measures of a 
17-inch (43.18-cm) minimum fish size; a 4-fish possession limit; and no 
closed season (i.e., season of January 1 through December 31). In 
consideration of the recreational harvest limits established for the 
2007 fishing

[[Page 55169]]

year and necessary for the beginning of the 2008 fishing year, taking 
no action in the summer flounder fishery would be inconsistent with the 
goals and objectives of the FMP and its implementing regulations 
because the no-action alternative would not have been expected to 
prevent the 2007 summer flounder recreational harvest limits from being 
exceeded. In addition, it is unlikely that these measures would serve 
as adequate interim regulatory measures for 2008 until appropriate 
measures, either conservation equivalency or different coastwide 
measures, are implemented to constrain harvest within the yet to be 
established 2008 recreational harvest limit.
    The impacts of the Council's originally proposed summer flounder 
coastwide alternative (i.e., Alternative 2) for a 19-inch (48.26-cm) 
minimum fish size, a 1-fish possession limit, and no closed season, 
were evaluated using the quantitative methods of the IRFA as summarized 
in the initial proposed rule (72 FR 12158, March 15, 2007). Impacted 
trips were defined under Alternative 2 as individual angler trips taken 
aboard party/charter vessels in 2006 that landed at least one summer 
flounder smaller than 19 inches (48.26 cm), or that landed more than 
one summer flounder. The analysis concluded that the measures would 
affect 4.13 percent of the party/charter vessel trips in the NE, 
including those trips where no summer flounder were caught.
    However, the Alternative 2 measures were designed to constrain 
recreational landings to the original recreational harvest limit 
resulting from the pre-extended rebuilding time frame TAL of 12.983 
million lb (5,889 mt). Under the increased TAL implemented on January, 
19, 2007, following the Secretarial determination that the rebuilding 
time frame could be extended and the 2007 TAL increased, further 
analysis indicated that the Alternative 2 measures would constrain 
recreational landings to 55 percent of the larger recreational harvest 
limit resulting from increasing the TAL. While this would satisfy both 
the objectives of the FMP and the Magnuson-Stevens Act, the public 
submitted comments in response to the 2007 recreational management 
measures proposed rule (72 FR 12158, March 15, 2007) that the 
Alternative 2 measures were unduly restrictive. NMFS agreed and 
indicated at that time that other alternatives would be evaluated for 
their effectiveness in allowing a higher percentage of the recreational 
harvest limit under the increased TAL to be attained while constraining 
landings to the 2007 limit and still ensuring compliance with the FMP 
and Magnuson-Stevens Act.
    The measures detailed in this proposed rule (i.e., Alternative 3) 
for an 18.5-inch (46.99-cm) minimum fish size with a 4-fish possession 
limit and a year-round season, would constrain landings to 90 percent 
of the harvest limit (2,181,735 fish). Again, the IRFA contained 
analysis on the impact of the Alternative 3 size limit for 2007. Under 
Alternative 3, impacted trips are defined as trips taken in 2006 that 
landed at least one summer flounder smaller than 18.5 inches (46.99 cm) 
or landed more than one summer flounder. The analysis concluded that 
implementation of the Alternative 3 measures could affect 4.06 percent 
of the party/charter vessel trips in the NE, including those trips were 
no summer flounder were caught. While the percent of potentially 
affected trips is only slightly different, the Alternative 3 measures 
would afford additional fish to be kept by anglers (i.e., 4 fish as 
compared to 1 fish) and would allow a greater number of fish to be 
landed under the increased recreational harvest limit and thereby is 
the alternative with the least economic impact on small entities while 
still achieving the required objectives of the FMP and the Magnuson-
Stevens Act.
    Compared to the measures implement through conservation equivalency 
for 2007, the Alternative 3 measures would provide less restrictive 
minimum fish sizes for Rhode Island and New York, while maintaining the 
same size limit for Virginia. All other states' measures for 2007 were 
smaller than the Alternative 3 minimum fish size of 18.5 inches (46.99 
cm). A 4-fish possession limit would maintain the same limits in place 
for New York, Delaware, and Maryland; all other states' possession 
limits were higher than 4-fish under conservation equivalency. The 
year-round season would be equal to or longer than the 2007 state 
measures implemented under conservation equivalency.
    Under the Council's proposed coastwide measures (i.e., Alternative 
2: A19-inch (48.26-cm) minimum fish size, a 1-fish possession limit, 
and no closed season), each state's conservation equivalency measures 
were smaller than 19 inches (48.26 cm) except New York. Each state had 
possession limits higher than one fish, and four states (Rhode Island, 
Connecticut, New Jersey, and Virginia) had seasons that were less 
shorter January 1-December 31; all other states had year-long seasons.
    There are no new reporting or recordkeeping requirements contained 
in any of the alternatives considered for this action.

List of Subjects in 50 CFR Part 648

    Fisheries and Fishing.

    Dated: September 21, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs,National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.
    2. In Sec.  648.103, paragraph (b) is revised to read as follows:


Sec.  648.103  Minimum fish sizes.

* * * * *
    (b) Unless otherwise specified pursuant to Sec.  648.107, the 
minimum size for summer flounder is 18.5 inches (46.99 cm) TL for all 
vessels that do not qualify for a moratorium permit, and charter boats 
holding a moratorium permit if fishing with more than three crew 
members, or party boats holding a moratorium permit if fishing with 
passengers for hire or carrying more than five crew members.
* * * * *
    3. In Sec.  648.105, the first sentence of paragraph (a) is revised 
to read as follows:


Sec.  648.105  Possession restrictions.

* * * * *
    (a) Unless otherwise specified pursuant to Sec.  648.107, no person 
shall possess more than four summer flounder in, or harvested from, the 
EEZ, unless that person is the owner or operator of a fishing vessel 
issued a summer flounder moratorium permit, or is issued a summer 
flounder dealer permit. * * *
* * * * *
[FR Doc. E7-19133 Filed 9-27-07; 8:45 am]
BILLING CODE 3510-22-S