[Federal Register Volume 73, Number 65 (Thursday, April 3, 2008)]
[Proposed Rules]
[Pages 18253-18256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-6955]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 622 and 697

[Docket No. 0612242961-7381-01]
RIN 0648-AT13


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Atlantic Coastal Fisheries Cooperative Management Act Provisions; 
Atlantic Coast Red Drum Fishery off the Atlantic States; Transfer of 
Management Authority

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS issues this proposed rule to repeal the Atlantic Coast 
Red Drum Fishery Management Plan (FMP) and to transfer the management 
authority of Atlantic red drum in the exclusive economic zone (EEZ) 
from the South Atlantic Fishery Management Council (South Atlantic 
Council), in cooperation with the Mid-Atlantic Fishery Management 
Council (Mid-Atlantic Council), under the Magnuson-Stevens Conservation 
and Management Act (Magnuson-Stevens Act) to the Atlantic States Marine 
Fisheries Commission (Commission) under the Atlantic Coastal Fisheries 
Cooperative Management Act (Atlantic Coastal Act), as requested by the 
Councils and the Commission. The intent of this action is to enhance 
the effectiveness and efficiency of managing Atlantic red drum.

DATES: Written comments on this proposed rule must be received no later 
than 5 p.m., eastern time, on May 5, 2008.

ADDRESSES: You may submit comments, identified by ``0648-AT13'', by any 
one of the following methods:
     Electronic Submissions: Submit electronic public comments 
via the Federal e-Rulemaking Portal: http://www.regulations.gov.
     Fax: 727-824-5308; Attention: Kate Michie.
     Mail: Kate Michie, Southeast Regional Office, NMFS, 263 
13th Avenue South, St. Petersburg, FL 33701.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    Copies of the environmental assessment, which describes the impacts 
of the transfer of management authority, may be obtained from Kate 
Michie at the address above or by e-mail at: [email protected].

FOR FURTHER INFORMATION CONTACT: Kate Michie, telephone: 727-824-5305, 
fax: 727-824-5308, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The Atlantic red drum fishery off the South 
Atlantic and Mid-Atlantic coastal states is currently managed under two 
separate FMPs. Atlantic red drum located in the EEZ are managed under 
the Atlantic Coast Red Drum FMP prepared by the South Atlantic Council, 
in cooperation with the Mid-Atlantic Council (Council FMP), and 
implemented under the authority of the Magnuson-Stevens Act by 
regulations at 50 CFR part 622. The Council FMP prohibits harvest or 
possession of red drum in the South Atlantic and Mid-Atlantic EEZ. 
Atlantic red drum located in state waters are managed under the 
Interstate Fishery Management Plan (ISFMP) for Red Drum (Commission 
FMP) by the Atlantic coast states (New Jersey through Florida) and the 
Atlantic States Marine Fisheries Commission. The Commission was 
established under the Atlantic States Marine Fisheries Commission 
Compact, an interstate compact approved by Congress in 1942. This 
proposed rule would repeal the Council FMP and implementing regulations 
issued under the Magnuson-Stevens Act and replace them with

[[Page 18254]]

substantially identical regulations under the Atlantic Coastal Act. to 
the Commission under the Atlantic Coastal Act. The Atlantic Coastal Act 
allows the Federal government to better coordinate its management 
practices with the states via the Commission process. The repeal of the 
Council FMP would occur at the same time as this rule is implemented.

Statutory Authority

    Section 803(b) of the Atlantic Coastal Act, 16 U.S.C. 5101 et seq., 
states that in the absence of an approved and implemented FMP under the 
Magnuson-Stevens Act (16 U.S.C. 1801 et seq.), and, after consultation 
with the appropriate Fishery Management Council(s), the Secretary of 
Commerce (Secretary) may implement regulations to govern fishing in the 
EEZ, which in this case is from 3 to 200 nautical miles (nm) offshore. 
These regulations must be (1) compatible with the effective 
implementation of an ISFMP developed by the Commission and (2) 
consistent with the national standards set forth in section 301 of the 
Magnuson-Stevens Act. Regulations may include measures recommended by 
the Commission to the Secretary that are necessary to support the 
provisions of the Commission FMP.

Purpose and Need for the Transfer of Management Authority

    The management of red drum (Sciaenops ocellatus) is greatly 
influenced by the biology of the fish. The younger fish are found 
primarily in state waters (estuaries and inlets) while the larger fish 
and schools may be found in either the offshore state waters (shore to 
3 nm) or Federal waters (3 to 200 nm offshore). Because of this 
distribution, juveniles tend to experience higher rates of exploitation 
than the offshore adult population. According to the most recent stock 
assessment of Atlantic red drum, conducted in 2000, recruitment of 
individuals to the spawning stock continues to decline, largely due to 
excessive fishing mortality on juvenile red drum, predominantly in 
state waters.
    Since most of the day-to-day management and all harvest of red drum 
takes place in state waters, the South Atlantic Council, the Mid-
Atlantic Council, and the Commission have requested that Atlantic red 
drum in the South Atlantic and Mid-Atlantic EEZ be managed under the 
Atlantic Coastal Act instead of under the Magnuson-Stevens Act. 
Managing Atlantic red drum under a single FMP would minimize management 
costs and eliminate unnecessary duplication of management efforts.

Background

    In the early 1980's, Atlantic coastal states realized that 
significant overfishing of juvenile red drum had been occurring in 
state waters for some time. At the same time, a purse seine fishery for 
red drum developed in the Gulf of Mexico EEZ. Although Gulf red drum is 
a different stock than Atlantic red drum, there was concern that a 
purse seine fishery might develop in the South Atlantic. Given these 
conditions, the Commission implemented an ISFMP for Atlantic red drum 
in 1984. Although this ISFMP addressed overfishing in state waters, it 
lacked the authority to protect the Atlantic red drum spawning stock in 
the EEZ.
    The South Atlantic Council, in cooperation with the Mid-Atlantic 
Council, developed the Council FMP in 1990 under the authority of the 
Magnuson-Stevens Act. The management unit for Atlantic red drum was 
defined as the population of red drum occurring along the United States 
Atlantic coast from the Federal boundary, separating the Gulf of Mexico 
EEZ from the South Atlantic EEZ to the New Jersey/New York line. 
Regulations implementing the Council FMP (55 FR 47059, November 9, 
1990) prohibited the possession or harvest of red drum in this 
management area.
    Objectives of the Council FMP included: (1) Maintaining a spawning 
stock biomass sufficient to prevent recruitment failure by working 
cooperatively with the states to provide a 30-percent escapement of 
juvenile red drum to the spawning stock and control fishing mortality 
to achieve at least a 30-percent spawning stock biomass per recruit 
level; (2) providing a flexible management system to address 
incompatibility and inconsistency among state and Federal regulations 
which minimizes regulatory delay while retaining substantial Council 
and public input into management decisions and which can adapt to 
changes in resource abundance, new scientific information, and changes 
in fishing patterns among user groups or by area; and (3) promoting 
cooperative collection of biological, economic, and sociological data 
required to effectively monitor and assess the status of the red drum 
resource and evaluate management efforts.
    In 1991, the Commission implemented Amendment 1 to their ISFMP for 
red drum to make it compatible with the Council FMP. Escapement rates 
of juvenile red drum increased as a result of Amendment 1 to the ISFMP 
for red drum, however, overall exploitation estimates indicated that 
overfishing was still occurring in state waters.
    In 1993, the Atlantic Coastal Act was enacted to facilitate 
coordination of inter-jurisdictional fisheries management (16 U.S.C. 
5101 et seq). The Atlantic Coastal Act acknowledges the Commission's 
authority for preparing and adopting coastal FMPs and facilitates the 
states' implementation and enforcement of these FMPs in their waters. 
Under the Atlantic Coastal Act, Federal support is still required for 
cooperative interstate management. The Commission FMP for Atlantic red 
drum was adopted under the authority of the Atlantic States Marine 
Fisheries Compact, originally approved by Congress in 1940.
    In 1998, the Secretary approved Amendment 1 to the Council FMP, 
which identified essential fish habitat and habitat areas of particular 
concern. In 2000, Amendment 2 to the Council FMP established new proxy 
reference points for red drum, based on a 40-percent static spawning 
potential ratio (SPR) of the stock. However, under the Commission FMP, 
state management measures were still based on an SPR of 30 percent and 
red drum continued to be overfished. Therefore, to reduce mortality of 
juvenile red drum in state waters and achieve optimum yield from the 
stock, the South Atlantic Council's Red Drum Management Committee and 
the Commission's South Atlantic State-Federal Management Board 
recommended the Commission implement compatible management measures.
    In June 2002, the Commission developed and approved Amendment 2 to 
the Commission FMP, which among other things, updated the Commission 
FMP to meet the standards for Commission FMPs under the Atlantic 
Coastal Act. The management goal of Amendment 2 was to achieve and 
maintain the optimum yield for the Atlantic red drum fishery, i.e. the 
amount of harvest U.S. fishermen could take while maintaining the SPR 
at or above 40 percent. To meet this goal, Amendment 2 required states 
to implement appropriate bag and size limits. In addition, all states 
agreed to maintain their current level of harvest restrictions to 
preclude the establishment of any new commercial fisheries for red 
drum.
    The Commission's Red Drum Plan Review Team examined the status of 
the Atlantic red drum stock the next year. They found that although 
escapement of juvenile red drum to the EEZ was increasing (by 
approximately 15 percent in the southern region and 18 percent in the 
northern region), it was increasing

[[Page 18255]]

by only approximately half of the desired rate of 30 percent. Thus, 
overfishing of juvenile red drum in state waters was still occurring.
    Following implementation of Amendment 2 to the Commission FMP, the 
Councils determined they had done all they could to protect the 
Atlantic red drum spawning stock, but lacked the ability to prevent 
overfishing of juveniles in state waters under the present management 
structure. As a result, the Mid-Atlantic and South Atlantic Councils 
requested in letters dated December 9, 2003, and October 26, 2004, 
respectively, that the Secretary repeal the Council FMP, as authorized 
under section 304(h) of the Magnuson-Stevens Act, and use the authority 
provided by the Atlantic Coastal Act to manage red drum in Federal 
waters of the U.S. Atlantic, with the provision that the current EEZ 
harvest or possession prohibitions remain in place. The letters stated 
that the basis for the Councils' requests was that the Commission has 
an Atlantic red drum FMP that mirrors the Council FMP, and 100 percent 
of the harvest and most of the day-to-day management of Atlantic red 
drum takes place in state waters under the Commission's jurisdiction. 
The letters also stated that consolidating the management of Atlantic 
red drum under one management authority, namely the Commission, would 
minimize costs and avoid unnecessary duplication as mandated by 
national standard 7 of the Magnuson-Stevens Act, without having any 
adverse impacts on the red drum resource. This would provide for a more 
efficient and timely mechanism to address managing Atlantic red drum 
throughout its range.
    The Commission supported these requests in a December 17, 2004, 
letter to NOAA's Assistant Administrator for Fisheries. The Commission 
requested that the current EEZ harvest or possession prohibitions 
remain in place, and that the process of withdrawing the Council FMP 
and establishing management authority under the Atlantic Coastal Act be 
a simultaneous action to ensure continuous protection of Atlantic red 
drum in the EEZ.

Benefits of the Change in Management Authority

    Consistent with national standard 7, this action would reduce 
management costs and avoid unnecessary duplication of management 
efforts. Under the Atlantic Coastal Act, the Secretary will maintain 
the existing harvest or possession prohibitions in the EEZ, and the 
states, NMFS, and the U.S. Coast Guard will continue to enforce those 
prohibitions. Repealing the Council FMP under the Magnuson-Stevens Act 
and simultaneously implementing comparable regulations under the 
Commission FMP under the Atlantic Coastal Act, will provide for a more 
efficient and timely rebuilding of the Atlantic red drum resource.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, I 
have determined that this proposed rule is consistent with the 
Magnuson-Stevens Act and other applicable law, subject to further 
consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The basis for this is as follows:
    No small entities, as defined by the Regulatory Flexibility Act, 
are directly or indirectly impacted by the rule and the rule has no 
direct or indirect economic costs. Specifically, this rule would 
transfer management of the Atlantic Red Drum Resource from the South 
Atlantic Fishery Management Council to the Atlantic States Marine 
Fisheries Commission (Commission) to reduce management costs by 
avoiding unnecessary duplication of management efforts. The 
Commission is the creation of 15 member states and each member state 
is represented by 3 Commissioners: the director for the state's 
marine fisheries management agency, a state legislator, and an 
individual appointed by the governor. Neither the Commission, which 
is directly affected by this rule, nor its member states are small 
governmental jurisdictions as defined by the RFA. The transfer would 
not require the Commission to change its existing Red Drum Fishery 
Management Plan, nor, in turn, would it require member states to 
change their existing regulations regarding harvest of red drum by 
small or large entities. Consequently, this rule would not require 
the Commission, its member states, or entities operating within the 
states to change existing practices. The Secretary would maintain 
the existing prohibitions in the EEZ, and NMFS and the U.S. Coast 
Guard would continue to enforce those prohibitions.
    As a result, an initial regulatory flexibility analysis is not 
required and none has been prepared.

List of Subjects

50 CFR Part 622
    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.
50 CFR Part 697
    Fisheries, Fishing.

    Dated: March 28, 2008.
James W. Balsiger,
Acting Assistant Administrator For Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR parts 622 and 697, 
are proposed to be amended as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

    1. The authority citation for part 622 continues to read as 
follows.

    Authority: 16 U.S.C. 1801 et seq.
Sec.  622.1 [Amended]
    2. In Sec.  622.1, Table 1, the entries for ``Atlantic Coast Red 
Drum FMP'' are removed.
Sec.  622.32 [Amended]
    3. In Sec.  622.32, remove paragraph (b)(3), and redesignate 
paragraph (b)(4) as paragraph (b)(3); remove newly redesignated 
paragraph (b)(3)(iii), and redesignate newly redesignated paragraphs 
(b)(3)(iv) through (vi) as paragraphs (b)(3)(iii) through (v).
Sec.  622.48 [Amended]
    4. In Sec.  622.48, remove paragraph (k), and redesignate 
paragraphs (l) and (m) as paragraphs (k) and (l), respectively.

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

    5. The authority citation for part 697 continues to read as 
follows:

    Authority: 16 U.S.C. 5101 et seq.
    6. In Sec.  697.2(a), the definition of ``Atlantic red drum'' is 
added and the definition of ``Regional Administrator'' is revised, in 
alphabetical order, to read as follows:


Sec.  697.2  Definitions.

    (a) * * *
    Atlantic red drum, also called redfish, means Sciaenops ocellatus, 
or a part thereof, found in the waters of the Atlantic Ocean off the 
Atlantic coastal states, to the outer boundary of the EEZ, as specified 
in Sec.  600.10 of this chapter, from the boundary of the United States 
and Canada, to the boundary between the South Atlantic Fishery 
Management Council and the Gulf of Mexico Fishery Management Council, 
as specified in Sec.  600.105(c) of this chapter.
* * * * *
    Regional Administrator, means Regional Administrator, Northeast 
Region, NMFS, or Regional Administrator, Southeast Region, NMFS, 
whichever has the applicable jurisdiction, or a respective designee.
* * * * *
    7. In Sec.  697.7, paragraph (f) is added to read as follows:

[[Page 18256]]

Sec.  697.7  Prohibitions.

* * * * *
    (f) Atlantic red drum fishery. In addition to the prohibitions set 
forth in Sec.  600.725 of this chapter, it is unlawful for any person 
to do any of the following:
    (1) Harvest or possess Atlantic red drum in the EEZ south of a line 
extending in a direction of 115[deg] from true north commencing at a 
point at 40[deg]29.6' N. lat., 73[deg]54.1' W. long., such point being 
the intersection of the New Jersey/New York boundary with the 3-nm line 
denoting the seaward limit of state waters, and north of the 
demarcation line between the South Atlantic Fishery Management Council 
and the Gulf of Mexico Fishery Management Council described in Sec.  
600.105(c) of this chapter.
    (2) Fail to release immediately without further harm, all Atlantic 
red drum caught in the EEZ area described in paragraph (f)(1) of this 
section.
    8. In Sec.  697.22, the introductory text and paragraph (a)(1) are 
revised to read as follows:


Sec.  697.22  Exempted fishing.

    The Regional Administrator or Director may exempt any person or 
vessel from the requirements of this part for the conduct of exempted 
fishing beneficial to the management of the American lobster, weakfish, 
Atlantic red drum, Atlantic striped bass, Atlantic sturgeon, or 
horseshoe crab resource or fishery, pursuant to the provisions of Sec.  
600.745 of this chapter.
    (a) * * *
    (1) Have a detrimental effect on the American lobster, weakfish, 
Atlantic red drum, Atlantic striped bass, Atlantic sturgeon, or 
horseshoe crab resource or fishery; or
* * * * *
[FR Doc. E8-6955 Filed 4-2-08; 8:45 am]
BILLING CODE 3510-22-S