[Federal Register Volume 74, Number 84 (Monday, May 4, 2009)]
[Rules and Regulations]
[Pages 20423-20426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10170]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 090206144-9697-02]
RIN 0648-AX49


Fisheries of the Northeastern United States; Atlantic Bluefish 
Fishery; 2009 Atlantic Bluefish Specifications

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

ACTION: Final rule; final specifications for the 2009 Atlantic bluefish 
fishery.

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SUMMARY: NMFS issues final specifications for the 2009 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 2009 harvest 
levels and possession limits to attain the target fishing mortality 
rate (F), consistent with the Atlantic Bluefish Fishery Management Plan 
(FMP).

DATES: Effective June 3, 2009, through December 31, 2009.

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 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, 55 Great Republic 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 regulations implementing the FMP are prepared by the Mid-
Atlantic Fishery Management Council (Council) and appear at 50 CFR part 
648, subparts A and J. Regulations requiring annual specifications are 
found at Sec.  648.160. The management unit for bluefish (Pomatomus 
saltatrix) is 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) and Scientific and 
Statistical Committee (SSC) 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 and SSC, the Council makes a recommendation to the NMFS 
Northeast Regional Administrator (RA). This FMP is a joint plan with 
the Atlantic States Marine Fisheries Commission (Commission); 
therefore, the Commission meets during

[[Page 20424]]

the annual specification process to adopt complementary measures.
    The Council's recommendations must include supporting documentation 
concerning the environmental, economic, and social impacts of the 
recommendations. NMFS is responsible for reviewing these 
recommendations to assure they achieve the FMP objectives, and may 
modify them if they do not. NMFS then publishes proposed specifications 
in the Federal Register. After considering public comment, NMFS 
publishes final specifications in the Federal Register.
    In July 2008, the Monitoring Committee and SSC met to discuss the 
updated estimates of bluefish stock biomass and project fishery yields 
for 2009. Based on the updated 2007 estimate of bluefish stock biomass, 
the bluefish stock is not considered overfished: B2007 = 
339.2 million lb (153,843 mt) is greater than the minimum biomass 
threshold, \1/2\ BMSY = 162 million lb (73,526 mt), and is 
actually above BMSY. The bluefish stock, therefore, appears 
to be fully rebuilt. Estimates of fishing mortality have declined from 
0.41 in 1991 to 0.15 in 2007. The new model results also conclude that 
the Atlantic stock of bluefish is not experiencing overfishing; i.e., 
the most recent F (F2007 = 0.15) is less than the maximum F 
overfishing threshold specified by SARC-41 (FMSY = 0.19). 
Detailed background information regarding the stock assessment process 
for bluefish and the development of the 2009 specifications for this 
fishery was provided in the proposed specifications (74 FR 9072, March 
2, 2009), and is not repeated here. In August 2008, the Council 
approved the SSC and Monitoring Committee's recommendations and the 
Commission's Bluefish Board (Board) adopted complementary management 
measures.

Final Specifications

2009 TAL

    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 harvested 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 2009), or the F estimated in the most recent fishing year 
(F2007 = 0.15), whichever is lower. Therefore, the 2009 
recommendation is based on an estimated F of 0.15. An overall TAC of 
34.081 million lb (15,459 mt) was recommended as the coast-wide TAC by 
the Council at its August 2008 meeting to achieve the target F, (F = 
0.15) in 2009, and to ensure that the bluefish stock continues to 
remain above the long-term biomass target, BMSY.
    The TAL for 2009 is derived by subtracting an estimate of discards 
of 4.725 million lb (2,143 mt), the average discard level from 2005-
2007, from the TAC. After subtracting estimated discards, the 2009 TAL 
would be approximately 4 percent greater than the 2008 TAL, or 29.356 
million lb (13,316 mt). Based strictly on the percentages specified in 
the FMP (17 percent commercial, 83 percent recreational), the 
commercial quota for 2009 would be 4.991 million lb (2,227 mt), and the 
RHL would be 24.366 million lb (11,052 mt) in 2009. In addition, up to 
3 percent of the TAL may be allocated as RSA quota. The discussion 
below describes the allocation of TAL between the commercial and 
recreational sectors, and the proportional adjustments to account for 
the recommended bluefish RSA Quota.

Final Commercial Quota, RHL, and RSA quota

    The FMP stipulates that, in any year in which 17 percent of the TAL 
is less than 10.500 million lb (4,763 mt), the commercial quota may be 
increased up to 10.500 million lb (4,763 mt) as long as the 
recreational fishery is not projected to land more than 83 percent of 
the TAL in the upcoming fishing year, and the combined projected 
recreational landings and commercial quota would not exceed the TAL. At 
the Monitoring Committee meeting in July 2008, Council staff estimated 
projected recreational landings for the 2009 fishing year by using 
simple linear regression of the recent (2001-2007) temporal trends in 
recreational landings. At that time, recreational landings were 
projected to reach 24.719 million lb (11,212 mt) in 2009. Therefore, 
projected 2009 recreational landings were slightly greater than the 
initial 2009 RHL. As such, a transfer of quota to the commercial sector 
could not occur based on those data. Any amount of transfer would 
likely have caused the TAL to be exceeded. This option, therefore, 
represented the preferred alternative recommended by the Council in its 
draft specifications document.
    However, the Council also recommended that, if later projections 
based on more complete data indicated that recreational harvest would 
be below 83 percent of the TAL, the difference be transferred to the 
commercial sector in the final specifications. NMFS Northeast Regional 
Office staff recently updated the recreational harvest projection using 
Marine Recreational Fisheries Statistics Survey (MRFSS) data through 
Wave 5 of 2008, and estimated the recreational harvest to be 
approximately 19.528 million lb (8,858 mt), or 67 percent of the TAL. 
Following the Council's recommendation, this would allow for a transfer 
to the commercial fishery of 4.838 million lb (2,194 mt), increasing 
the commercial quota from 4.991 million lb (2,227 mt) to 9.828 million 
lb (4,458 mt). This commercial quota is 27 percent greater than the 
2008 quota, and 86 percent greater than actual 2008 commercial 
landings.
    A request for proposals was published to solicit research proposals 
to utilize RSA in 2008 based on research priorities identified by the 
Council (February 8, 2008; 73 FR 7528). Oneresearch project that would 
utilize bluefish RSA has been preliminarily approved by the RA and 
forwarded to the NOAA Grants Office. Therefore, a 97,750-lb (44,339-kg) 
RSA quota is approved for use by this project, or other potential 
research projects, during 2009. This final rule does not represent 
NOAA's approval of any RSA-related grant award, which will be included 
in a separate action. Consistent with the allocation of the bluefish 
RSA, the final commercial quota for 2009 is 9,730,601 lb (4,414 mt), 
the final RHL is 19,528,060 lb (8,858 mt), and the RSA quota is 97,750 
lb (44,339 kg).

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.

Final State Commercial Allocations

    The final state commercial allocations for the 2009 commercial 
quota are shown in Table 1, based on the percentages specified in the 
FMP. In accordance with the regulations at Sec.  648.160(e)(2), NMFS 
shall 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 2008 indicate a bluefish quota overage for New York 
in the amount of 34,149 lb (15,490 kg). This final rule adjusts New 
York's 2009 bluefish quota downward by this amount, to 976,384 lb

[[Page 20425]]

(442,880 kg), to account for this overage. The table below includes the 
adjustment for New York's 2008 quota overage.

 Table 1. Final Bluefish Commercial State-by-State Allocations for 2009
                       (including RSA deductions).
------------------------------------------------------------------------
                                                    2009         2009
               State                  Percent    Commercial   Commercial
                                       Share     Quota (lb)   Quota (kg)
------------------------------------------------------------------------
ME                                     0.6685       65,049       29,506
------------------------------------------------------------------------
NH                                     0.4145       40,333       18,295
------------------------------------------------------------------------
MA                                     6.7167      653,575      296,462
------------------------------------------------------------------------
RI                                     6.8081      662,469      300,496
------------------------------------------------------------------------
CT                                     1.2663      123,219       55,892
------------------------------------------------------------------------
NY                                    10.3851      976,384      442,888
------------------------------------------------------------------------
NJ                                    14.8162    1,441,702      653,956
------------------------------------------------------------------------
DE                                     1.8782      182,760       82,900
------------------------------------------------------------------------
MD                                     3.0018      292,093      132,493
------------------------------------------------------------------------
VA                                    11.8795    1,155,945      524,337
------------------------------------------------------------------------
NC                                    32.0608    3,119,709    1,415,100
------------------------------------------------------------------------
SC                                     0.0352        3,425        1,554
------------------------------------------------------------------------
GA                                     0.0095          924          419
------------------------------------------------------------------------
FL                                    10.0597      978,869      444,015
------------------------------------------------------------------------
Total                                100.0001    9,696,457    4,398,313
------------------------------------------------------------------------

Comments and Responses

    The public comment period on the proposed rule ended on March 17, 
2009, with three comments received.
    Comment 1: One commenter suggested that the bluefish quotas should 
be reduced by 50 percent, based on the notion that commercial fisheries 
are causing bluefish, and other species, to become extinct.
    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 suggestion that bluefish are at 
risk of extinction. The reasons presented by the Council and NMFS for 
recommending the final 2009 bluefish specifications are based on the 
best scientific information available, and are discussed in the 
preambles to both the proposed and final rules. Bluefish are not 
considered overfished or subject to overfishing, and biomass appears to 
be at its highest level in 20 years. Sufficient analysis and scientific 
justification for NMFS's action in this final rule are contained within 
the supporting documents.
    Comment 2: Two commenters were supportive of the proposed 
specifications and increased commercial quotas. They further agreed, 
based on personal observations, that the bluefish resource appears to 
be healthy.
    Response: As stated above, NMFS used the best scientific 
information available, and selected specifications for the bluefish 
fishery that are consistent with the FMP and the recommendations of the 
Council. The 2009 commercial bluefish quotas implemented through this 
final rule will allow for increased fishing opportunities compared to 
2008, while maintaining the conservation objectives of the FMP.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
Assistant Administrator for Fisheries, NOAA, 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 E.O. 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

    Three comments were submitted on the proposed rule, but none were 
specific to the IRFA or the economic effects of the rule. NMFS has 
responded to the comments 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 comments received.

Description and Estimated 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. Therefore, there are no disproportionate 
effects on small versus large entities. Information on costs in the 
fishery are not readily available and individual vessel profitability 
cannot be determined directly. Therefore, changes in gross revenues 
were used as a proxy for profitability. In the absence of quantitative 
data, qualitative analyses were conducted.
    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 2007 (the last year for which there are 
complete data). These dealer reports identified 709 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 856 vessels\1\ that landed bluefish in North Carolina, 
and 586 vessels that landed bluefish on Florida's east coast. Bluefish 
landings in South Carolina and Georgia were near zero, representing a 
negligible proportion of the total bluefish landings along the Atlantic 
Coast in 2007.
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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.

[[Page 20426]]

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 contained in this final rule is 27 percent higher than the 2008 
commercial quota, and 86 percent higher than actual 2008 commercial 
bluefish landings. All affected states will receive increases in their 
individual commercial quota allocations in comparison to their 
respective 2008 individual state allocations, which may result in 
positive economic impacts for commercial bluefish fishery participants.
    The RHL contained in this final rule is approximately 4 percent 
lower than the RHL in 2008. The small reduction in RHL is a reflection 
of a declining trend in recreational bluefish harvest in recent years. 
Since the 2009 RHL is set equal to the total projected recreational 
bluefish harvest for 2009, it does not constrain recreational bluefish 
harvest below a level that the fishery is anticipated to achieve. 
Furthermore, the possession limit for bluefish remains at 15 fish per 
person. Therefore, no negative economic impacts on the recreational 
fishery are anticipated.
    The impacts on revenues of the proposed RSA were analyzed; the 
social and economic impacts are minimal. Assuming that the full RSA of 
97,750 lb (44,339 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. 
In conclusion, because the 2009 commercial quota being implemented in 
this final rule is greater than the 2008 commercial quota, the 2009 RHL 
is consistent with recent trends in recreational landings, and the 
impacts of the RSA quota will be minimal, no negative economic impacts 
are expected relative to the status quo.

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.

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

    Dated: April 27, 2009.
John Oliver,
Deputy Assistant Administrator For Operations, National Marine 
Fisheries Service.
[FR Doc. E9-10170 Filed 5-1-09; 8:45 am]
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