[Federal Register Volume 73, Number 37 (Monday, February 25, 2008)]
[Rules and Regulations]
[Pages 9957-9960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3514]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 071212833-8179-02]
RIN 0648-XB94


Fisheries of the Northeastern United States; Atlantic Bluefish 
Fisheries; 2008 Atlantic Bluefish Specifications

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

ACTION: Final rule; final specifications for the 2008 Atlantic bluefish 
fishery.

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SUMMARY: NMFS issues final specifications for the 2008 Atlantic 
bluefish fishery, including state-by-state commercial quotas, a 
recreational harvest limit, and recreational possession limits for 
Atlantic bluefish off the east coast of the United States. The intent 
of these specifications is to establish the allowable 2008 harvest 
levels and possession limits to attain the target fishing mortality 
rate (F), consistent with the stock rebuilding program contained in 
Amendment 1 to the Atlantic Bluefish Fishery Management Plan (FMP), as 
well as ensuring compliance with the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). The final 
specifications are modified from those contained in the proposed rule 
as a result of more recent information on recreational harvests.

DATES: This rule is effective March 26, 2008, through December 31, 
2008.

ADDRESSES: Copies of the specifications document, including the 
Environmental Assessment (EA) and the Initial Regulatory Flexibility 
Analysis (IRFA) are available from Daniel Furlong, Executive Director, 
Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 
300 South Street, Dover, DE 19901 6790. The specifications document is 
also accessible via the Internet at http://www.nero.noaa.gov. NMFS 
prepared a Final Regulatory Flexibility Analysis (FRFA), which is 
contained in the

[[Page 9958]]

classification section of this rule. The FRFA consists of the IRFA, 
public comments and responses contained in this final rule, and a 
summary of impacts and alternatives contained in this final rule. The 
small entity compliance guide is available from Patricia A. Kurkul, 
Regional Administrator, Northeast Regional Office, National Marine 
Fisheries Service, One Blackburn Drive, Gloucester, MA 01930 2298, and 
on the Northeast Regional Office's website at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Tobey Curtis, Fishery Policy Analyst, 
(978) 281-9273.

SUPPLEMENTARY INFORMATION:

Background

    The Atlantic bluefish fishery is cooperatively managed by the Mid-
Atlantic Fishery Management Council (Council) and the Atlantic States 
Marine Fisheries Commission (Commission). The regulations implementing 
the FMP appear at 50 CFR part 648, subparts A and J. Regulations 
requiring annual specifications are found at Sec.  648.160. The 
management unit for Atlantic bluefish (Pomatomus saltatrix) is the U.S. 
waters of the western Atlantic Ocean.
    The FMP requires that the Council recommend, on an annual basis, 
total allowable landings (TAL) for the fishery, consisting of a 
commercial quota and recreational harvest limit (RHL). A research set-
aside (RSA) quota is deducted from the bluefish TAL (after any 
applicable transfer) in an amount proportional to the percentage of the 
overall TAL as allocated to the commercial and recreational sectors. 
The annual review process for bluefish requires that the Council's 
Bluefish Monitoring Committee (Monitoring Committee) review and make 
recommendations based on the best available data, including, but not 
limited to, commercial and recreational catch/landing statistics, 
current estimates of fishing mortality, stock abundance, discards for 
the recreational fishery, and juvenile recruitment. Based on the 
recommendations of the Monitoring Committee, the Council makes a 
recommendation to the Northeast Regional Administrator (RA). Because 
the Bluefish FMP is a joint plan with the Commission, the Commission 
meets during the annual specification process to adopt complementary 
measures.
    In July 2007, the Monitoring Committee met to discuss the updated 
estimates of bluefish stock biomass and project fishery yields for 
2008. In August 2007, the Council approved the Monitoring Committee's 
recommendations and the Commission's Bluefish Board (Board) adopted 
complementary management measures. Detailed background information 
regarding the status of the bluefish stock and the development of the 
2008 specifications for this fishery was provided in the proposed 
specifications (72 FR 73304, December 27, 2007). That information is 
not repeated here.

RSA Quota

    A request for proposals was published to solicit research proposals 
to utilize RSA in 2006 based on research priorities identified by the 
Council (December 27, 2006; 71 FR 77726). One research project that 
would utilize bluefish RSA has been preliminarily approved by the RA 
and forwarded to the NOAA Grants Office. Therefore, this final rule 
implements a 50,000-lb (22,680-kg) RSA quota for the 2008 bluefish 
fishery. If this project is not approved by the NOAA Grants Office, the 
research quota associated with the disapproved proposal will be 
restored to the bluefish TAL through publication in the Federal 
Register.

Final Specifications

    The FMP specifies that the bluefish stock is to be rebuilt to 
BMSY over a 9-year period (i.e., by the year 2010). The FMP 
requires the Council to recommend, on an annual basis, a level of total 
allowable catch (TAC) consistent with the rebuilding program in the 
FMP. An estimate of annual discards is deducted from the TAC to 
calculate the TAL that can be made during the year by the commercial 
and recreational fishing sectors combined. The TAL is composed of a 
commercial quota and a RHL. The FMP rebuilding program requires the TAC 
for any given year to be set based either on the target F resulting 
from the stock rebuilding schedule specified in the FMP (0.31 for 
2008), or the F estimated in the most recent fishing year (F2006 
= 0.15), whichever is lower. Therefore, the 2008 recommendation is 
based on an estimated F of 0.15. An overall TAC of 31.887 million lb 
(14,464 mt) was recommended as the coast-wide TAC by the Council at its 
August 2007 meeting to achieve the target fishing mortality rate (F = 
0.15) in 2008, and to ensure that the bluefish stock continues toward 
the long-term biomass target, BMSY = 324 million lb (147,052 
mt), consistent with the rebuilding schedule specified in Amendment 1. 
Based on the 2006 biomass estimate (307.5 million lb (139,496 mt)), the 
bluefish stock is well above the minimum biomass threshold (1/2 
BMSY = 162 million lb (73,526 mt)), but is still slightly 
below the long-term biomass target (BMSY = 324 million lb 
(147,052 mt)).
    The TAL for 2008 is derived by subtracting an estimate of discards 
of 3.734 million lb (1,694 mt), the average discard level from 2000-
2006, from the TAC. After subtracting estimated discards, the 2008 TAL 
will be 28.156 million lb (12,771 mt), approximately 1.4 percent 
greater than the 2007 TAL. Based strictly on the percentages specified 
in the FMP (17 percent commercial, 83 percent recreational), the 
commercial quota for 2008 would be 4.787 million lb (2,171 mt), and the 
RHL would be 23.370 million lb (10,600 mt) in 2008. In addition, up to 
3 percent of the TAL may be allocated as RSA quota. The discussion 
below describes the recommended allocation of TAL between the 
commercial and recreational sectors, and its proportional adjustment 
downward to account for the recommended bluefish RSA quota.

Council Recommendation: Commercial Quota and Recreational Harvest Limit

    As described in the proposed rule, based on the best information 
available at the time, the Council recommended that 4.088 million lb 
(1,854 mt) be transferred from the initial recreational allocation of 
23.370 million lb (10,600 mt), resulting in a 2008 commercial quota of 
8.875 million lb (4,026 mt) and a RHL of 19.281 million lb (8,746 mt). 
These allocations were also recommended by the Commission to be 
implemented by the states for fisheries within state waters.

Final 2008 Commercial Quota and Recreational Harvest Limit

    Although the Council recommendation was based on the best 
information available at the time, more recent information, which was 
not available at the time of the Council's recommendation or at the 
time of publication of the proposed rule, was used to develop a new 
recreational landings projection for the 2008 fishing year. This new 
recreational landings projection, when added to the commercial quota, 
as adjusted by the proposed transfer of bluefish from the allowable 
RHL, may cause the TAL to be exceeded. Such a result is inconsistent 
with Sec.  648.160(c), which requires that the level of transfer be 
constrained to a level that does not cause the TAL to be exceeded. 
Based on data provided by the Marine Recreational Fisheries Statistic 
Survey (MRFSS) program, projected recreational landings in 2007 were 
approximately 20,414,621 lb (9,260 mt). Using this amount as the

[[Page 9959]]

most reasonable proxy for expected landings in 2008, this final rule 
reduces the amount of the transfer from the recreational to the 
commercial sector by 1,169,756 lb (531 mt), from 4,088,449 lb (1,854 
mt) to 2,918,693 lb (1,324 mt), commensurate with the increase in 
projected recreational landings. This results in a post-transfer 
commercial quota of 7,705,244 lb (3,495 mt) and a recreational harvest 
limit of 20,450,938 lb (9,276 mt). After adjusting for the RSA quota, 
the resulting 2008 specifications include a commercial quota of 
7,691,561 lb (3,489 mt) and a recreational harvest limit of 20,414,621 
lb (9,260 mt). The RSA quota remains unchanged at 50,000 lb (22,680 
kg).

Additional Adjustment for 2007 New York Overage

    In accordance with the regulations at Sec.  648.160(e)(2), NMFS may 
deduct any overages of the commercial quota landed in any state from 
that state's annual quota for the following year. Updated landings 
information for FY 2007 indicate a bluefish quota overage for New York 
in the amount of 51,719 lb (23,459 kg). This final rule adjusts New 
York's 2008 bluefish quota downward by this amount to 747,057 lb 
(338,859 kg), to account for this overage.

Final State Commercial Allocations

    The 2008 commercial quota is allocated by state as shown in Table 
1, according to the percentages specified in the FMP. The table 
accounts for New York's 2007 quota overage.

                                        Table 1. Final Bluefish Commercial State-by-State Allocations for 2008\1\
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                     State                         Percent Share     2008 Commercial Quota (lb) RSA Deducted    2008 Commercial Quota (kg) RSA Deducted
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                      ME                                    0.6685                                     51,418                                     23,323
                      NH                                    0.4145                                     31,882                                     14,461
                      MA                                    6.7167                                    516,619                                    234,338
                      RI                                    6.8081                                    523,649                                    237,527
                      CT                                    1.2663                                     97,398                                     44,180
                      NY                                   10.3851                                    747,057                                    338.865
                      NJ                                   14.8162                                  1,139,595                                    516,920
                      DE                                    1.8782                                    144,463                                     65,528
                      MD                                    3.0018                                    230,885                                    104,730
                      VA                                   11.8795                                    913,716                                    414,462
                      NC                                   32.0608                                  2,465,973                                  1,118,565
                      SC                                    0.0352                                      2,707                                      1,228
                      GA                                    0.0095                                        731                                        331
                      FL                                   10.0597                                    773,748                                    350,972
                     Total                                100.0001                                  7,639,842                                  3,465,432
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\1\ The sum of the individual states does not add up to the final commercial quota of 7,639,841 lb due to rounding.

Recreational Possession Limit

    NMFS has approved the Council's recommendation to maintain the 
current recreational possession limit of 15 fish per person to achieve 
the RHL.

Comments and Responses

    The public comment period on the proposed rule ended on January 28, 
2008, with only one comment received.
    Comment 1: The commenter suggested that the TAC be reduced by 50 
percent initially, and by 10 percent in each subsequent year. The 
commenter also suggested that a December 2007, hypothermal fish kill in 
New Jersey had a detrimental impact on the overall bluefish population, 
and that the scientific methods used to estimate bluefish biomass were 
inaccurate.
    Response: The commenter gave no specific rationale for why the 
quotas should be reduced in the manner suggested, and there is no known 
scientific basis for the commenter's suggestions. According to the New 
Jersey Department of Environmental Protection, the December 2007 fish 
kill near the Oyster Creek Nuclear Power Generating Station in Ocean 
County, NJ, killed approximately 5,300 bluefish. Based upon estimates 
of total bluefish abundance in the June 2007 Bluefish Assessment 
Summary prepared by the Commission's Bluefish Stock Assessment Sub-
Committee, this kill represented less than 0.01 percent of the total 
bluefish population in 2007 (89.2 million fish). The impact of the fish 
kill is therefore negligible relative to the total bluefish stock. The 
reasons presented by the Council and NMFS for recommending the final 
2008 bluefish specifications are based on the best available science, 
and are discussed in the preambles to both the proposed and final 
rules. Sufficient analysis and scientific justification for NMFS's 
action in this final rule are contained within the supporting 
documents.

Classification

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this rule is 
consistent with the Atlantic Bluefish FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law.
    This final rule is exempt from review under Executive Order 12866.
    Included in this final rule is the FRFA prepared pursuant to 5 
U.S.C. 604(a). The FRFA incorporates the IRFA, a summary of the 
significant issues raised by the public comments in response to the 
IRFA, and NMFS's responses to those comments, and a summary of the 
analyses completed to support the action. A copy of the EA/RIR/IRFA is 
available from the Council (see ADDRESSES).
    The preamble to the proposed rule included a detailed summary of 
the analyses contained in the IRFA, and that discussion is not repeated 
here.

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being taken, and 
the objectives of and legal basis for these specifications 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

    One comment was submitted on the proposed rule, but it was not 
specific to the IRFA or the economic effects of the rule. NMFS has 
responded to the comment in the Comments and Responses section of the 
preamble to this final rule. No changes were made to the final rule as 
a result of the comment received.

[[Page 9960]]

Description and Estimate of Number of Small Entities to Which the Rule 
will Apply

    The Small Business Administration (SBA) defines small businesses in 
the commercial fishing and recreational fishing sectors as firms with 
receipts (gross revenues) of up to $4.0 million and $6.5 million, 
respectively. No large entities participate in this fishery, as defined 
in section 601 of the RFA. This rule could affect any vessels that fish 
for bluefish in Federal or state waters. The final measures regarding 
the 2008 quotas could affect any vessels holding an active Federal 
permit for bluefish, as well as vessels that fish for this species in 
state waters.
    The participants in the commercial sector were defined using two 
sets of data. First, the
    Northeast dealer reports were used to identify any vessel that 
reported having landed 1 lb (0.45 kg) or more of bluefish during 
calendar year 2006 (the last year for which there is complete data). 
These dealer reports identified 725 vessels that landed bluefish in 
states from Maine to North Carolina. However, this database does not 
provide information about fishery participation in South Carolina, 
Georgia, or Florida. South Atlantic Trip Ticket reports were used to 
identify 820 vessels\1\ that landed bluefish in North Carolina and 567 
vessels that landed bluefish on Florida's east coast. There were no 
reported landings of bluefish in South Carolina in 2006, and bluefish 
landings in Georgia were near zero, representing a negligible 
proportion of the total bluefish landings along the Atlantic Coast in 
2006.
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    \1\ Some of these vessels were identified in the Northeast 
dealer data; therefore, double counting is possible.
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    In addition, it was estimated that, in recent years, approximately 
2,063 party/charter vessels may have been active and/or caught 
bluefish. All of these vessels are considered small entities under the 
RFA, having gross receipts of less than $5 million annually. Since the 
recreational possession limit will remain at 15 fish per person, there 
should be no impact on demand for party/charter vessel fishing, and, 
therefore, no impact on revenues earned by party/charter vessels.

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

    Specification of commercial quota, recreational harvest levels, and 
possession limits is constrained by the conservation objectives of the 
FMP, under the authority of the Magnuson-Stevens Act. The commercial 
quota and RHL contained in this final rule are 13.2 percent lower and 
6.1 percent higher, respectively, than the Council's preferred 
alternative contained in the proposed rule. Although the commercial 
quota under this new alternative is lower than the commercial quota 
recommended by the Council, and lower than the FY 2007 commercial quota 
of 8,574,939 lb (3,890 mt), it remains approximately 24 percent greater 
than FY 2007 commercial landings (6,209,915 lb; 2,817 mt). All affected 
states will receive reductions in their individual commercial quota 
allocation in comparison to their respective 2007 individual state 
allocations. However, the magnitude of the reduction varies depending 
on the state's respective percent share in the total commercial quota, 
as specified in the FMP, and depending on whether the state had any 
overages from FY 2007 that needed to be accounted for in this final 
rule (e.g., New York). NMFS considered a TAL that would have allowed a 
higher allocation of quota to the commercial sector, but this 
alternative, proposed by the Council, would have been inconsistent with 
the goals and objectives of the FMP and the Magnuson-Stevens Act. The 
new alternative, which will transfer less quota from the recreational 
sector to the commercial sector than the alternative contained in the 
proposed rule, is being implemented consistent with recent recreational 
landings trends and should ensure that the 2008 RHL is not exceeded. 
Furthermore, the RHL being implemented in this final rule is 8.5 
percent higher than the RHL specified in FY 2007. In conclusion, 
because the 2008 commercial quota being implemented in this final rule 
is significantly greater than FY 2007 commercial landings, and the 2008 
RHL represents an increase over the 2007 RHL, and because the revised 
2008 RHL is consistent with recent trends in recreational landings, no 
negative economic impacts are expected relative to the status quo and 
the Council's preferred alternative.
    The impacts on revenues of the proposed RSA were analyzed; the 
social and economic impacts are minimal. Assuming that the full RSA of 
50,000 lb (22,680 kg) is landed and sold to support the proposed 
research project (a supplemental finfish survey in the Mid-Atlantic), 
then all of the participants in the fishery would benefit from the 
anticipated improvements in the data underlying the stock assessments.

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 small entity compliance guide will be sent 
to all holders of Federal permits issued for the Atlantic bluefish 
fishery. In addition, copies of this final rule and guide (i.e., permit 
holder letter) are available from NMFS (see ADDRESSES) and at the 
following website: http://www.nero.noaa.gov.

    Dated: February 19, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E8-3514 Filed 2-22-08; 8:45 am]
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