[Federal Register Volume 73, Number 51 (Friday, March 14, 2008)]
[Notices]
[Pages 13864-13867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1026]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG11


Atlantic Coastal Fisheries Cooperative Management Act Provisions; 
Tautog Fishery

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

ACTION: Notice of determination of Non-compliance; Declaration of a 
moratorium.

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SUMMARY: In accordance with the Atlantic Coastal Fisheries Cooperative 
Management Act (Atlantic Coastal Act), NMFS, upon a delegation of 
authority from the Secretary of Commerce (Secretary), has determined 
that the State of New Jersey has failed to carry out its 
responsibilities under the Atlantic States Marine Fisheries 
Commission's (Commission) Interstate Fishery Management Plan for Tautog 
(Plan) and that the measures New Jersey has failed to implement and 
enforce are necessary for the conservation of the tautog resource. This 
determination is consistent with the findings of the Commission on 
February 7, 2008. Pursuant to the Atlantic Coastal Act, a Federal 
moratorium on fishing for tautog within the state waters of New Jersey 
is hereby declared and will be effective on April 1, 2008. Tthe

[[Page 13865]]

moratorium will be withdrawn when New Jersey is found to have come back 
into compliance with the Commission's Tautog Plan.

DATES: Effective April 1, 2008.

ADDRESSES: Harold C. Mears, Director, State, Federal and Constituent 
Programs Office, NMFS, Northeast Region, One Blackburn Drive, 
Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Bob Ross, Fishery Management 
Specialist, NMFS, Northeast Region, (978) 281-9327, fax (978) 281-9117, 
e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Non-Compliance Statutory Background

    The Atlantic Coastal Act, 16 U.S.C. 5101 et seq. sets forth a non-
compliance review and determination process that is triggered when the 
Commission finds that a state has not implemented measures specified in 
the Plan and refers that determination to the Secretary for review and 
potential concurrence. The Secretary delegated all decision-making 
under this process to NMFS, although NMFS is required to notify the 
Secretary before any final action is taken.
    The Atlantic Coastal Act's non-compliance process involves two 
stages of decision-making. In the first stage, the Secretary (delegated 
to NMFS) must make two findings: 1) whether the state in question has 
failed to carry out its responsibility under the Commission's 
Interstate Fishery Management Plan; and if so 2) whether the measures 
that the state failed to implement and enforce are necessary for the 
conservation of the fishery in question. These initial findings must be 
made within 30 days after receipt of the Commission's non-compliance 
referral and consequently, this first stage of decision-making is 
referred to as the ``30-day Determination.''
    A positive 30-day Determination triggers a mandatory moratorium on 
fishing within state waters for the fishery in question. This 
moratorium may begin immediately or at any time within six (6) months 
of the 30-day Determination.

Commission Referral of Non-Compliance

    On February 7, 2008, the Commission voted the State of New Jersey 
out of compliance with the Commission's Tautog Plan. Specifically, the 
Commission found that New Jersey had not implemented management 
measures to achieve the required 25.6 percent reduction in tautog 
exploitation as was required by Addendum IV and Addendum V to the 
Tautog Plan. Addenda IV and V were developed in response to the best 
and most recently available science as set forth in the January 2006 
peer reviewed tautog stock assessment. The stock assessment indicated 
that stock levels were at historic lows, that the coastwide stock was 
overfished and that overfishing was occurring. Addendum IV mandated 
that states reduce their harvest by 25.6 percent and Addendum V allowed 
states discretion to parse Addendum IV's reductions between the 
different fishing sectors (i.e., commercial versus recreational).
    The Commission's vote on February 7, 2008, was the culmination of 
months of debate between the Commission and its Scientific Technical 
Committee (TC) on the one hand and the State of New Jersey and the New 
Jersey Marine Fisheries Council (NJ Council) on the other. Throughout 
this process, New Jersey argued that it has already taken measures - 
outside of addenda IV and V - that have substantially reduced mortality 
in the state's tautog population and that no additional restrictions on 
harvest are necessary to meet the Plan's fishing mortality targets. To 
support this position, New Jersey submitted a numerous state-specific 
proposals to the Commission including a proposal based upon a Virtual 
Population Assessment (VPA), as well as proposals based upon a Trawl 
Based Assessment Method (TBAM).
    New Jersey admitted that its state VPA model was of much lower 
precision than the Commission's coastwide VPA model and not suitable as 
a stand alone analysis. The TC concurred and rejected the state VPA. 
Similarly, the TC was unable to support New Jersey's TBAM analysis due 
to the lack of comparable metrics between the state's methodology and 
the Commission's coastwide analysis. The TC also expressed concerns 
over certain assumptions contained in the TBAM analysis, and, as a 
result, could not approve New Jersey's proposal. The NJ Council 
nevertheless remained committed to the TBAM analysis, which justified 
taking no further harvest restrictions, and the Council blocked state 
efforts to implement complying tautog regulations. The Council informed 
the Commission of their veto of the States' complying tautog 
regulations in a letter dated November 7, 2007. This position formed 
the basis of the Commission's vote on February 7, 2008 to find the 
State of New Jersey out of compliance.

Agency Action In Response to Commission Non-Compliance Referral

    The Commission forwarded the findings of their vote on February 7, 
2008, in a formal non-compliance referral letter that the Secretary 
received on February 11, 2008. In response, NMFS began the Atlantic 
Coastal Act's 30-day determination clock. Immediately thereafter, NMFS 
sent letters to the State of New Jersey, the Mid-Atlantic and New 
England Fishery Management Councils and to the Commission, advising 
them of the Atlantic Coastal Act's non-compliance process, inviting 
them to provide commentary on the issue, and in the case of New Jersey, 
inviting the State to meet with NMFS to present its position in person 
or provide written comments on the Commission's findings.
    Although New Jersey declined the invitation to meet, they did 
provide written comments to NMFS on February 28, 2008. New Jersey's 
February 28, 2008 letter simply restated the arguments that New Jersey 
had made in support of the TBAM method before the TC and Commission. 
The letter presented no new facts, nor propounded any new arguments. 
The Mid-Atlantic Fishery Management Council commented on February 27, 
2008 in support of the Commission's non-compliance determination, but 
provided no new information in support of their conclusion. The 
Commission also responded on February 27, 2008 indicating that it had 
no further comments to add. No comments have yet been received from the 
New England Fisheries Management Council.

Agency's Findings

    New Jersey did not fulfill its responsibilities under the 
Commission's Tautog Plan. New Jersey does not dispute that it has not 
implemented additional measures pursuant to Addendum IV and Addendum V. 
The addenda require states to reduce fishing mortality for tautog by 
25.6 percent. In 2007, New Jersey, along with all other states on the 
Commission's Tautog Management Board, voted to adopt the addenda as a 
mandatory part of the Tautog Plan. New Jersey, also voted to approve 
the findings of the 2006 tautog stock assessment upon which the Addenda 
were based. Specifically, the 2006 stock assessment concluded that 
existing Tautog Plan management measures were not enough to save the 
tautog resource; that still more reduction measures (Addenda IV and V) 
were necessary. Thus, New Jersey is in the position of agreeing with 
the scientific call for action (the 2006 stock

[[Page 13866]]

assessment), agreeing with the proposed action itself (Addenda IV and 
V's 25.6 percent reduction), yet a few months later, the State advances 
the argument that, all along, it need do nothing more under the Tautog 
Plan than was required of the State under the pre-existing Tautog Plan.
    New Jersey used state-specific assessments to argue that it need do 
nothing under Addendum IV to meet the Plan's mortality targets. 
Addendum IV allows New Jersey to make such an attempt, but places the 
burden on the state to establish that its methodology is `` at the same 
level of precision as the most recent [2006 tautog stock] assessment.'' 
New Jersey failed to meet this burden. The scientists of the TC 
reviewed New Jersey's proposals, but could approve none as being 
sufficiently precise. NMFS agrees with the TC's findings and further 
notes that the most recent landings data - data that was unavailable to 
the TC and not present in New Jersey's proposals shows a three fold 
increase in New Jersey recreational landings in 2006 over the prior 
years harvest. Accordingly, even if, for argument's sake, the TC's 
analysis was overly cautious at the time, New Jersey's substantial 
increase in tautog harvest in 2006 seems to underscore the 
applicability of Addendum IV, or at the very least, justifies the lack 
of confidence in the State's proposals and the need for additional 
constraints on harvest in New Jersey.
    Absent an acceptable submission by the state, New Jersey is 
required to comply with measures under Addenda IV and V. It has not, 
and has thus not fulfilled its responsibilities under the Tautog Plan. 
NMFS determined the measures that New Jersey failed to implement are 
necessary for the conservation of the fishery. The conservation basis 
of Addenda IV and V is straight-forward and obvious. The following 
facts are accepted by New Jersey and disputed by nobody:
    1. According to the 2006 peer-reviewed stock assessment, the tautog 
resource continues to be at very low biomass levels.
    2. Since the mid-1980s, tautog has undergone a substantial decrease 
in total and spawning stock biomass, with both currently at levels 
about one-third of their historical averages.
    3. Tautog is currently listed both as overfished and with 
overfishing occurring. The most recent landings data suggests that New 
Jersey's recreational landings more than tripled in 2006.
    4. Addendum IV and Addendum V directly respond to this conservation 
need and the addenda were voted upon and unanimously approved by all 
states including New Jersey in 2007.
    New Jersey Council erroneously contends that it has already met the 
required reductions through measures it implemented under the pre-
existing Tautog Plan. First, the 2006 stock assessment took account of 
the earlier Tautog Plan reductions for which New Jersey would like to 
claim credit. In other words, Addendum IV=s measures incorporated these 
earlier reductions and new, lower targets were still deemed necessary 
in order to rebuild the tautog resource. New Jersey, thus, has yet to 
contribute to any of the reductions deemed necessary under Addenda IV 
and V to conserve the resource.
    Second, New Jersey's harvest as a percentage of the coastwide total 
harvest is significant. New Jersey landings by recreational and 
commercial harvesters frequently place New Jersey among the top 
harvesters of tautog. New Jersey=s recreational harvest as a percentage 
of the coastwide total rose by more than 300 percent from 2005 to 2006, 
ballooning from 5 percent to 17 percent, respectively. Commercial 
landings have remained between 15 and 23 percent of the 2003-2006 
coastwide harvest. These numbers represent a significant contribution 
by New Jersey to the overall coastwide fishing mortality for tautog. 
Accordingly, its failure to implement conservation measures under 
Addenda IV and V will most certainly jeopardize any rebuilding efforts.

A Moratorium Shall be Implemented on April 1, 2008

    Pursuant to the Atlantic Coastal Act, NMFS must implement a 
moratorium within 180 days of the positive 30-day Determination that is 
being made in this matter. NMFS has determined that an April 1, 2008, 
closure would both benefit tautog conservation and allow for the 
necessary logistics that accompany such a closure.
    The April 1, 2008, date provides more conservation than dates 
towards the end of the six month moratorium window, which would not 
conserve tautog when they congregate to spawn in late spring/early 
summer. Nor would these later potential closure dates capture the 
potential spike in tautog landings that occurred in the spring 
according to the most recent NMFS Marine Recreational Fisheries 
Statistical Survey data. An immediate closure i.e., on the first date 
after the positive 30-day Determination, (March 12, 2008) would likely 
provide the most conservation, although not significantly more, but the 
short time frame would make the closure difficult to implement as a 
matter of logistics and notice. Closure dates to the end of the six 
month moratorium window provide ample time for logistics and notice, 
more time than is necessary. In sum, an April 1, 2008, closure date 
would on balance maximize conservation while allowing sufficient time 
for the notice and logistics necessary to implement such closure.

Moratorium Prohibitions

    Once the moratorium takes effect, the moratoriums' proscribed 
conduct shall reflect the prohibited acts mandated by the Atlantic 
Coastal Act as set forth as 16 U.S.C. 5106(e). Accordingly, as of 
Tuesday, April 1, 2008, it shall be unlawful any person or vessel to do 
the following:
    1. Engage in fishing for tautog (Tautogis onitis)-also commonly 
known as ``blackfish'' within New Jersey waters-0 to 3 nautical miles 
(0 to 5.5 kilometers) from shore;
    2. Land, attempt to land, or possess tautog that are caught, taken, 
or harvested in New Jersey state waters-waters 0 to 3 nautical miles (0 
to 5.5 kilometers) from shore;
    3. Fail to return to the water immediately, with a minimum of 
injury, any tautog that are taken incidental to fishing for species 
(i.e., as bycatch) other than tautog;
    4. Refuse to permit any officer authorized to enforce the 
provisions of this moratorium to board a fishing vessel subject to such 
person's control for purposes of conducting any search or inspection in 
connection with the enforcement of this moratorium;
    5. Forcibly assault, resist, oppose, impede, intimidate, or 
interfere with any such authorized officer in the conduct of any search 
or inspection under this moratorium;
    6. Resist a lawful arrest for any act prohibited by this 
moratorium;
    7. Ship, transport, offer for sale, sell, purchase, import, or have 
custody, control, or possession of, any tautog taken or retained in 
violation of this moratorium; or
    8. Interfere with, delay, or prevent, by any means, the 
apprehension or arrest of another person, knowing that such other 
person has committed any act prohibited by this moratorium.

Classification

    This declaration of a moratorium is consistent with the Atlantic 
Coastal Act at 16 U.S.C. 5106 insofar as New Jersey has been found to 
have failed to carry out its responsibilities under the Commission 
Tautog Plan and the measures that New Jersey has failed to implement 
and enforce are necessary for

[[Page 13867]]

the conservation of the tautog fishery. Further, the moratorium 
prohibits fishing for tautog within New Jersey state waters and is 
being implemented within six (6) months of the agency findings.
    The declaration of moratorium is consistent with the Administrative 
Procedures Act at 5 U.S.C. 555 insofar as New Jersey was promptly 
notified of the Commission's non-compliance referral and given an 
opportunity to meet with the agency and provide comments on the matter. 
New Jersey has also been promptly notified of the agency's 
determination in this matter. The Assistant Administrator for 
Fisheries, NOAA (AA), finds that providing prior public notice and 
opportunity for comment is impracticable and unnecessary. Providing 
prior notice and opportunity for comment would be impracticable, 
because it would prevent the agency from executing its functions under 
the Act in a timely manner. The Act contemplates quick action on the 
declaration of a moratorium that would not be possible if prior notice 
and an opportunity for comment are provided. Furthermore, providing 
prior notice and opportunity for comment would be unnecessary because 
it would serve no purpose. The nature of a moratorium is described in 
the Act and, therefore, cannot be modified in response to public 
comments.
    The declaration of moratorium does not trigger the analytical 
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. 
because prior notice and opportunity for public comment are not 
required for this determination by the Administrative Procedures Act or 
any other law.
    The declaration of a moratorium does not fall under review under 
Executive Order 12866 insofar as the moratorium is not a regulatory 
action of the agency but is an action mandated by Congress upon the 
findings of certain conditions precedent set forth in the Atlantic 
Coastal Act, which also prescribes the nature and extent of the 
moratorium. The fishery is smaller relative to other Commission 
fisheries and a moratorium is not expected to materially adversely 
affect the economy or have an impact of over $100 million. The matter 
creates no serious inconsistency with actions by other agencies and it 
is not expected to have material budgetary impacts. The declaration of 
moratorium is not significant within the meaning of the Executive 
Order.
    The declaration of moratorium is not the result of a policy 
formulated or implemented by the agency, but is instead the result of 
the application of found facts to the Congressional standards set forth 
in the Atlantic Coastal Act and as such, the declaration does not 
implicate federalism in the manner contemplated by Executive Order 
13132. Further, the agency has consulted with New Jersey to the maximum 
extent practicable in this matter given the truncated timeframe set 
forth in the Atlantic Coastal Act. Rather, the Act provides clear 
evidence that Congress intended the Secretary to have the authority to 
preempt state law. That authority has been delegated from the Secretary 
to NMFS. The scope of the moratorium reflects the standards set forth 
in the Atlantic Coastal Act, and as such restricts state law to the 
minimum level necessary to further the objectives of the statute.

    Authority: 16 U.S.C. 5101 et seq.

    Dated: March 10, 2008.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 08-1026 Filed 3-11-08; 12:07 p.m.]
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