[Federal Register Volume 72, Number 224 (Wednesday, November 21, 2007)]
[Rules and Regulations]
[Pages 65466-65469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-22741]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070827484-7581-02]
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: Final rule.

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SUMMARY: Through this final rule, NMFS is implementing coastwide summer 
flounder recreational management measures to complete the rulemaking 
process initiated in March 2007. This action is necessary to implement 
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: Effective 0001 hours, Eastern Standard Time (EST), January 1, 
2008.

ADDRESSES: 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 Patricia A. 
Kurkul, Regional Administrator, NMFS Northeast Region, 1 Blackburn 
Drive, Gloucester, MA 01930-2298. 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: The summer flounder recreational fishery is 
managed cooperatively under the provisions of the Summer Flounder, 
Scup, and Black Sea Bass Fishery Management Plan (FMP) by the Mid-
Atlantic Fishery Management Council (Council) and the Atlantic States 
Marine Fisheries Commission (Commission), in consultation with the New 
England and South Atlantic Fishery Management Councils. The Council 
prepared the FMP under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevenson Act), 16 U.S.C. 
1801 et seq. Regulations implementing the FMP appear at 50 CFR part 
648, with subparts A (general provisions) and G (summer flounder) 
pertaining to the summer flounder fishery. General regulations 
governing U.S. fisheries also appear at 50 CFR part 600. States manage 
summer flounder within 3 nautical miles of their coasts, under the 
Commission's plan for summer flounder, scup, and black sea bass. The 
Federal regulations govern vessels fishing in the exclusive economic 
zone (EEZ), as well as vessels possessing a Federal fisheries permit, 
regardless of where they fish.
    Under the FMP and regulations, the Council may recommend and NMFS 
may approve one of two approaches for managing the summer flounder 
recreational fishery: Conservation equivalency (either state-by-state 
or regional) with a precautionary default backstop approved by 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.
    For the 2007 recreational fishery, the Council recommended and NMFS 
approved state-by-state conservation equivalency. When the conservation 
equivalency measures expire at the end of a fishing year, coastwide 
measures found at Sec. Sec.  648.103(a) and 648.105(a) become 
effective. Typically, the coastwide measures are adjusted during the 
annual rulemaking process that establishes recreational management 
measures to ensure that the coastwide measures are sufficient to 
constrain recreational landings to the established harvest limit. This 
is done even if conservation equivalency is implemented, as was done 
for 2007, because the coastwide measures serve as the interim measures 
in place in the following year (i.e., 2008) until new measures are put 
in place. This is typically completed by late spring or early summer. 
However, because of timing issues that arose from the reauthorization 
of the Magnuson-Stevens Act that granted authority to extend the summer 
flounder rebuilding period, and a subsequent increase to the 2007 TAL, 
NMFS did not implement

[[Page 65467]]

any revised 2007 coastwide measures to serve as the 2008 regulatory 
backstop after conservation equivalency expires. Prior to this rule, 
the coastwide measures in the regulations were a 4-fish possession 
limit, a 17-inch (43.18-cm) minimum fish size, and no closed season. 
These measures were determined to be insufficient to ensure that the 
2007 recreational harvest limit would not be exceeded. Additional 
detail on the background and development of the 2007 recreational 
management measures and the 2008 coastwide interim management measures 
are contained in the preamble of the respective proposed rules (72 FR 
12158; March 15, 2007, and 72 FR55166; September 28, 2007) and are not 
repeated here.
    This action is necessary to complete the final detail of the 2007 
summer flounder recreational management measures rulemaking and should 
not be confused with the upcoming process to develop the 2008 
recreational management measures. The 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.
    A proposed rule to implement summer flounder coastwide recreational 
interim management measures of an 18.5-inch (46.99-cm) minimum fish 
size, a 4-fish possession limit, and a year-round season was published 
in the Federal Register on September 28, 2007 (72 FR 55166), with 
public comment accepted through October 15, 2007. This final rule 
implements the interim summer flounder coastwide management measures 
proposed by NMFS, as presented in the proposed rule and outlined as 
follows.
    The Commission's Technical Committee (TC) conducted 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 emergency rule increased harvest limit (2,181,735 fish). 
By implementing these measures, the normal regulatory process that 
occurs when conservation equivalency is utilized to manage the summer 
flounder recreational fishery will be completed. These measures 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. 
These new coastwide measures will remain effective until they are 
either superceded by conservation equivalency measures or revised, as 
needed, to ensure that the 2008 recreational harvest limit will not be 
exceeded.
    These measures are sufficiently risk averse as interim measures to 
ensure that overfishing will not occur while new measures, based on the 
updated 2007 stock assessment, are developed for implementation in mid-
2008. 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 2001-2006 show that less than 2 
percent of the annual harvest occurs in the first two MRFSS data 
collection periods (called waves) of the year (January-April). 
Approximately 31 percent of the coastwide summer flounder harvest 
occurs in Wave 3 (May-June).
    Based on recent years' development and rulemaking schedules 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).

Comments and Responses

    Three comments were received regarding the proposed 2008 interim 
coastwide recreational management measures. Two of the comments 
received did not address any aspect of the proposed 2008 interim 
coastwide recreational management measures: One stated that summer 
flounder quotas should be reduced in 2008, and the other expressed 
general displeasure with recreational fishing opportunities. NMFS 
anticipates publishing a proposed rule for the 2008 summer flounder TAL 
before December 2007. That proposed rule, when published, would be the 
appropriate rule to address comments on quota reductions, therefore 
those two comments are not addressed here.
    Comment 1: The commenter inquired why a coastwide measure would be 
implemented that may penalize states that have used conservation 
equivalency measures as an effective means of constraining recreational 
harvests to or below the state's respective target.
    Response: This commenter appears to have confused the 2008 interim 
coastwide management measures with the yet to be developed 2008 
management measures. As previously stated in the preamble to this final 
rule, the measures implemented by this rule will remain effective until 
replaced, by either conservation equivalency or updated coastwide 
measures, sometime in late spring or early summer of 2008. Coastwide 
measures have always become the management measures in place in the 
interim between the expiration of conservation equivalency and the 
implementation of new measures that are based on updated assessment and 
fishery information. The measures of this rule are necessary to ensure 
that the relatively minor amount of summer flounder recreational 
harvest that occurs in late winter will be adequately constrained by 
appropriate measures. The Council has not yet initiated the process 
that will develop the measures that will be utilized to manage the bulk 
of the 2008 recreational fisheries that occur during summer and fall. 
The Council may consider both state-by-state or regional conservation 
equivalency or modification of the coastwide measures to manage the 
2008 summer flounder recreational fishery.

Classification

    The Administrator, Northeast Region, NMFS, determined that this 
final rule is necessary for the conservation and management of the 
summer flounder fishery and that it is consistent with the Magnuson-
Stevens Fishery Conservation and Management Act and other applicable 
law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the IRFA, a summary of the significant issues raised 
by the public comments in response to the IRFA, and NMFS responses to 
those comments, and a summary of the analyses completed to support the 
action. A copy of this analysis is available from the NMFS (see 
ADDRESSES).

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being taken, and 
the objectives

[[Page 65468]]

of and legal basis for this final rule are explained in the preambles 
to the proposed rule and this final rule and are not repeated here.

Summary of Significant Issues Raised in Public Comments

    A summary of the comments received, and the responses thereto, are 
contained in the ``Comments and Responses'' section of this preamble. 
No significant issues were raised by those submitting comments, 
therefore; no changes to the proposed rule were required to be made as 
a result of the public comments.

Description and Estimate of Number of Small Entities to Which This Rule 
Will Apply

    The proposed measures could affect any of the 967 vessels 
possessing a Federal charter/party permit for summer flounder in 2006, 
the most recent year for which complete permit data are available. 
However, only 331 of these vessels reported active participation in the 
recreational summer flounder fishery in 2006.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    No additional reporting, recordkeeping, or other compliance 
requirements are included in this final rule.

Description of the Steps Taken to Minimize Economic Impact on Small 
Entities

    NMFS undertook this additional recreational management measure 
rulemaking to implement interim coastwide measures that are designed to 
constrain recreational harvest to the 2007 recreational harvest limit 
as increased by emergency rule on January 19, 2007 (72 FR 2458), and 
extended for the remainder of 2007 (72 FR 40077; July 23, 2007). The 
need to develop and implement these measures resulted from public 
comments received on the 2007 recreational management measures proposed 
rule (72 FR 12158; March 15, 2007) that indicated the originally 
proposed measures (Alternative 2) for a 1-fish possession limit, a 19-
inch (48.26-cm) minimum fish size, and no closed season would be 
severely restrictive following the implementation of the increased 2007 
TAL.
    During the 2007 recreational management measures rulemaking, NMFS 
ultimately implemented a final rule (72 FR 30492; June 1, 2007) to 
implement state-by-state conservation equivalency to manage the 2007 
summer flounder recreational fishery. This rendered the coastwide 
measures moot for 2007; however, the coastwide measures are necessary 
as the interim management measures for the first third of 2008, after 
conservation equivalency has expired but before updated measures are 
developed and recommended for implementation by the Council. 
Recreational harvest data indicate that only a small percentage of the 
summer flounder fishery is likely to occur during the interim 
recreational management measures effective period. However, the 
Alternative 2 coastwide measure available to NMFS during the 
recreational management measure rulemaking development was, as the 
public indicated, highly restrictive under the higher 17.112-million-lb 
(7,762-mt) TAL implemented and extended by emergency rule. Alternative 
2 had been developed and analyzed to constrain landings to the 
recreational harvest limit resulting from the lower, pre-emergency TAL 
of 12.983 million lb (5,889 mt). NMFS indicated in the 2007 
recreational management measures final rule that it would undertake 
separate notice-and-comment rulemaking to propose and implement 
coastwide measures for the interim period of 2008 that were analyzed 
for effectiveness relative to the final, higher 2007 TAL.
    The 18.5-inch (46.99-cm) minimum fish size with a 4-fish possession 
limit and a year-round season (Alternative 3) implemented by this rule 
minimizes, to the extent possible, the economic impact on small 
entities while ensuring that the mortality objectives of the FMP and 
summer flounder rebuilding program will be met in the first third of 
2008. The Council-proposed coastwide management measures of Alternative 
2 (a 1-fish possession limit, a 19-inch (48.26-cm) minimum fish size, 
and no closed season) would have been unduly restrictive, constraining 
recreational harvest to an estimated 55 percent of the 2007 
recreational harvest limit resulting from the emergency rule increased 
TAL. By contrast, the measures implemented by this rule are projected 
to constrain the recreational harvest to 90 percent of the increased 
TAL. The increased number of fish available for landing under 
Alternative 3 results in a lower impact to small entities that 
participate in the early season fishery by allowing slightly larger 
fish to be retained. The previous coastwide management measures in 
regulation (Alternative 1) for a 4-fish possession limit, a 17-inch 
(43.18-cm) minimum fish size, and no closed season was projected not to 
constrain recreational harvest to the 2007 recreational harvest limit. 
Therefore, the measures implemented by this rule are the only 
alternative that minimizes economic impacts by allowing the maximum 
potential harvest, to the extent practicable, yet achieves the 
biological objectives of the FMP.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit holders that also serves as 
the small entity compliance guide was prepared and will be sent to all 
holders of Federal party/charter permits issued for the summer 
flounder, scup, and black sea bass fisheries. In addition, copies of 
this final rule and the small entity compliance guide are available 
from NMFS (see ADDRESSES) and at the following Web site: http://www.nero.noaa.gov.

    Dated: November 14, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs,National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq.

0
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.
* * * * *

0
3. In Sec.  648.105, the first sentence of paragraph (a) is revised to 
read as follows:

[[Page 65469]]

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. E7-22741 Filed 11-20-07; 8:45 am]
BILLING CODE 3510-22-S