Number range CHAPTER

**ENVIRONMENTAL ASSESSMENT FOR THE PROPOSED ACTION TO REPEAL THE FEDERAL
ATLANTIC COAST RED DRUM**

**FISHERY MANAGEMENT PLAN AND**

**TRANSFER SECRETARIAL AUTHORITY TO**

**REGULATE THE HARVEST AND POSSESSION OF RED DRUM IN AND FROM FEDERAL
WATERS OF THE U.S. ATLANTIC FROM THE**

**MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT TO THE
ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT ACT**

**INCLUDING A FINDING OF NO SIGNIFICANT IMPACT, REGULATORY IMPACT
REVIEW, AND REGULATORY FLEXIBILTIY ACT ANALYSIS**

February 2008

![](media/image1.png){width="1.3527777777777779in"
height="1.3118055555555554in"}

National Oceanic and Atmospheric Administration

National Marine Fisheries Service

Southeast Regional Office

263 13^th^ Avenue South

St. Petersburg, Florida 33701

727-824-5308

727-824-5305 (fax)

[http://sero.nmfs.noaa.gov](http://sero.nmfs.noaa.gov/)

# Finding of No Significant Impact (FONSI) for the Proposed Action to Repeal the Federal Atlantic Coast Red Drum Fishery Management Plan and Transfer Secretarial Authority to Regulate the Harvest and Possession of Red Drum in and from the U.S. Atlantic from the Magnuson-Stevens Fishery Conservation and Management Act to the Atlantic Coastal Fisheries Cooperative Management Act {#finding-of-no-significant-impact-fonsi-for-the-proposed-action-to-repeal-the-federal-atlantic-coast-red-drum-fishery-management-plan-and-transfer-secretarial-authority-to-regulate-the-harvest-and-possession-of-red-drum-in-and-from-the-u.s.-atlantic-from-the-magnuson-stevens-fishery-conservation-and-management-act-to-the-atlantic-coastal-fisheries-cooperative-management-act .unnumbered}

**National Marine Fisheries Service**

National Oceanic and Atmospheric Administration Administrative Order
216-6 (NAO 216-6) (May 20, 1999) contains criteria for determining the
significance of the impacts of a proposed action. In addition, the
Council on Environmental Quality regulations at 40 CFR 1508.27 state the
significance of an action should be analyzed both in terms of "context"
and "intensity." Each criterion listed below is relevant in making a
finding of no significant impact and has been considered individually,
as well as in combination with the others. The significance of this
action is analyzed based on the NAO 216-6 criteria and CEQ's context and
intensity criteria. These include:

**1) Can the proposed action reasonably be expected to jeopardize the
sustainability of any target species that may be affected by the
action?**

[Response]{.underline}: No. The proposed action would change the legal
authority for managing the Atlantic red drum resource, but would not
substantially change management goals or objectives. Additionally, the
proposed action would not change current restrictions prohibiting the
harvest or possession of red drum in and from federal waters of the U.S.
Atlantic. Consequently, the proposed action is not expected to
jeopardize the sustainability of the red drum resource.

**2) Can the proposed action reasonably be expected to jeopardize the
sustainability of any non-target species?**

[Response]{.underline}: No. The proposed action is largely
administrative in nature and would not change current restrictions on
fisheries occurring in federal waters of the U.S. Atlantic. Therefore,
it is not expected to directly or indirectly affect the sustainability
of non-target fish or other species impacted by fishery management
actions.

**3) Can the proposed action reasonably be expected to cause substantial
damage to the ocean and coastal habitats and/or essential fish habitat
as defined under the Magnuson-Stevens Fishery Conservation and
Management Act and identified in fishery management plans?**

[Response]{.underline}: No. The proposed action would not change current
restrictions on fisheries occurring in federal waters of the U.S.
Atlantic and, consequently, would not alter the effects of fisheries on
ocean and coastal habitats. While the proposed action would eliminate
the definition of red drum essential fish habitat defined by the South
Atlantic Fishery Management Council Red Drum FMP, drafted in cooperation
with the Mid-Atlantic Fishery Management Council, this same habitat is
identified as essential fish habitat for other species managed by the
Mid-Atlantic and South Atlantic Fishery Management Councils and,
therefore, subject to the same protections currently provided by the
Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens Act).

4)  **Can the proposed action be reasonably expected to have a
    substantial adverse impact on public health or safety?**

[Response]{.underline}: No. The proposed action is largely
administrative in nature, and would not alter current fishery operations
or their effect on public health and safety.

**5) Can the proposed action reasonably be expected to adversely affect
endangered or threatened species, marine mammals, or critical habitat of
these species?**

[Response]{.underline}: No. The proposed action is not expected to alter
the effects of current fishing activities on endangered or threatened
species, marine mammals, or their critical habitat. The action would not
change current restrictions prohibiting the harvest or possession of red
drum in federal waters of the U.S. Atlantic. As a result, neither
protected species nor their critical habitat would be impacted by red
drum fishing in these waters. Any proposal to change current fishing
regulations would require the lead agency comply with the protective
provisions of the Endangered Species Act and the Marine Mammal
Protection Act.

**6) Can the proposed action be expected to have a substantial impact on
biodiversity and/or ecosystem function within the affected area (e.g.,
benthic productivity, predator-prey relationships, etc.)?**

[Response]{.underline}: No. The proposed action is largely
administrative in nature, and is not expected to directly or indirectly
affect target or non-target species because it would not change current
restrictions prohibiting the harvest or possession of red drum in or
from federal waters of the U.S. Atlantic. As a result, the proposed
action would not alter the availability of predator or prey species or
cause other effects that could impact biodiversity, or ecological roles
and functions.

**7) Are significant social or economic impacts interrelated with
natural or physical environmental effects?**

[Response]{.underline}: The proposed action would not impact the social
or economic environment because it would not change current restrictions
prohibiting the harvest or possession of red drum in federal waters of
the U.S. Atlantic. The proposed action would benefit the administrative
environment by minimizing the costs and eliminating unnecessary
duplication of red drum management, consistent with National Standard 7
of the Magnuson-Stevens Act. These benefits would be accomplished by
eliminating one of the two fishery management plans providing authority
for managing the Atlantic red drum resource.

8)  **Are the effects on the quality of the human environment likely to
    be highly controversial?**

[Response]{.underline}: No. The proposed action is being considered at
the request of the South Atlantic and Mid-Atlantic Fishery Management
Councils, which view the statutory authority provided by the
Magnuson-Stevens Act as an unnecessary duplication of authority for red
drum management given the statutory authority provided by the Atlantic
Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act).
Because the proposed action would not change current restrictions on red
drum harvest, it is not expected to be opposed by Council constituents.

**9) Can the proposed action reasonably be expected to result in
substantial impacts to unique areas, such as historic or cultural
resources, park land, prime farmlands, wetlands, wild and scenic rivers
or ecologically critical areas?**

[Response]{.underline}: No. The proposed action is largely
administrative in nature and would not impact current management of the
red drum resource in federal waters of the U.S. Atlantic. Consequently,
it could not be expected to impact any natural resources, regardless of
their location or value.

**10) Are the effects on the human environment likely to be highly
uncertain or involve unique or unknown risks?**

[Response]{.underline}: No. The proposed action would not impact the
human environment but would improve the efficiency of the federal
fishery management process by eliminating the South Atlantic Fishery
Management Council Red Drum FMP, drafted in cooperation with the
Mid-Atlantic Fishery Management Council, and allowing the Secretary to
use the authority provided by the Atlantic Coastal Act to regulate red
drum in federal waters of the U.S. Atlantic in cooperation with the
Atlantic States Marine Fisheries Commission.

**11) Is the proposed action related to other actions with individually
insignificant, but cumulatively significant impacts?**

[Response]{.underline}: No. The proposed action is not dependent on or
related to any other foreseeable actions that would impact the same
affected environment. The action would repeal the South Atlantic Fishery
Management Council Red Drum FMP, drafted in cooperation with the
Mid-Atlantic Fishery Management Councils, enabling the Secretary to use
the statutory authority provided by the Atlantic Coastal Act to
implement and enforce red drum regulations in federal waters. The
proposed action would not change current restrictions prohibiting the
harvest or possession of red drum in federal waters of the U.S.
Atlantic, or the Secretary's authority to change those regulations at a
future date after consulting with the South Atlantic and Mid-Atlantic
Fishery Management Councils.

**12) Is the proposed action likely to adversely affect districts,
sites, highways, structures, or objects listed in or eligible for
listing in the National Register of Historic Places or may cause loss or
destruction of significant scientific, cultural or historical
resources?**

[Response]{.underline}: No. The proposed action is largely
administrative in nature and would not impact current management of the
red drum resource in federal waters of the U.S. Atlantic. Consequently,
it could not be expected to affect any of the above-listed structures or
objects or to impact any resources.

**13) Can the proposed action reasonably be expected to result in the
introduction or spread of a non-indigenous species?**

[Response]{.underline}: No. The proposed action would not directly or
indirectly affect target or non-target species because it would not
change current restrictions prohibiting the harvest or possession of red
drum in or from federal waters of the U.S. Atlantic. As a result, it
would not alter the availability of predator or prey species or cause
other effects that could indirectly impact the occurrence or status of
non-indigenous species within the affected environment.

**14) Is the proposed action likely to establish a precedent for future
actions with significant effects or represent a decision in principle
about a future consideration?**

[Response]{.underline}: No. The Atlantic Coastal Act already provides
the Secretary authority to regulate federal fisheries in the U.S.
Atlantic when such fisheries are not managed through a federal fishery
management plan developed in accordance with the Magnuson-Stevens Act.
The proposed action would not establish any new or different authorities
for U.S. fishery management, just simply repeal the federal fishery
management plan with the intent of transferring Secretarial authority to
promulgate and enforce federal regulations governing red drum management
from the Magnuson-Stevens Act to the Atlantic Coastal Act.

**15) Can the proposed action reasonably be expected to threaten a
violation of Federal, State, or local law or requirements imposed for
the protection of the environment?**

[Response]{.underline}: No. The proposed action to transfer Secretarial
authority to regulate the federal red drum fishery from the
Magnuson-Stevens Act to the Atlantic Coastal Act would require the
Secretary to support state coastal fisheries programs and collaborate
with the appropriate regional fishery management councils and Atlantic
States Marine Fisheries Commission in implementing regulations to govern
fishing in federal waters that are compatible with the effective
implementation of a coastal fishery management plan and consistent with
the national standards set forth in the Magnuson-Stevens Act.
Consequently, the proposed action is expected to promote greater
consistency and collaboration between state and federal fishery
management of the red drum resource.

**16) Can the proposed action reasonably be expected to result in
cumulative adverse effects that could have a substantial effect on the
target species or non-target species?**

[Response]{.underline}: No. The proposed action is largely
administrative in nature, and is not expected to directly or indirectly
affect target or non-target species because it would not change current
restrictions prohibiting the harvest or possession of red drum in or
from federal waters of the U.S. Atlantic. Additionally, the proposed
action is not dependent on or related to any other foreseeable actions
that would impact the same affected environment. Consequently, the
proposed action is not expected to result in any cumulative adverse
impacts.

**DETERMINATION**

In view of the information presented in this document and the analysis
contained in the supporting EA prepared for the transfer of regulatory
authority of Atlantic red drum from the Magnuson-Stevens Act, to the
Atlantic Coastal act, it is hereby determined that the proposed action
to improve the efficiency and coordination of red drum management by
providing just one statutory authority for red drum management in both
state and federal waters of the U.S. Atlantic, would not significantly
affect the quality of the human environment as described above and in
the supporting EA. In addition, all beneficial and adverse impacts of
the proposed action have been addressed to reach the conclusion of no
significant impacts. Accordingly, preparation of an EIS is not necessary
for this action.

William T. Hogarth, Ph.D. Date

Assistant Administrator for Fisheries

#  {#section .unnumbered}

**TABLE OF CONTENTS**

[Finding of No Significant Impact (FONSI) for the Proposed Action
i](#finding-of-no-significant-impact-fonsi-for-the-proposed-action-to-repeal-the-federal-atlantic-coast-red-drum-fishery-management-plan-and-transfer-secretarial-authority-to-regulate-the-harvest-and-possession-of-red-drum-in-and-from-the-u.s.-atlantic-from-the-magnuson-stevens-fishery-conservation-and-management-act-to-the-atlantic-coastal-fisheries-cooperative-management-act)

[1.0 PURPOSE AND NEED FOR ACTION 2](#purpose-and-need-for-action)

[2.0 ALTERNATIVES, INCLUDING THE PROPOSED ACTION
3](#alternatives-including-the-proposed-action)

[2.1 Description of Alternatives 3](#description-of-alternatives)

[2.2 Comparison of Alternatives 4](#comparison-of-alternatives)

[3.0 AFFECTED ENVIRONMENT 5](#affected-environment)

[3.1 Administrative Environment 6](#administrative-environment)

[3.1.1 The fishery management process and applicable laws
6](#the-fishery-management-process-and-applicable-laws)

[3.1.1.1 Federal fishery management 6](#federal-fishery-management)

[3.1.1.2 State fishery management 7](#state-fishery-management)

[3.1.2 History of red drum management
7](#history-of-red-drum-management)

[3.2 Biological and Physical Environment
10](#biological-and-physical-environment)

[3.2.1 Red Drum 10](#red-drum)

[3.2.1.1 Biology 10](#biology)

[3.2.1.2 Status 10](#status)

[3.2.1.3 Habitat 11](#habitat)

[3.2.2 Protected resources 15](#protected-resources)

[3.2.2.1 Marine mammals 15](#marine-mammals)

[3.2.2.2 Marine turtles 15](#marine-turtles)

[3.2.2.3 Other listed species 16](#other-listed-species)

[3.3 Economic and Social Environment
16](#economic-and-social-environment)

[4.0 ENVIRONMENTAL CONSEQUENCES 19](#environmental-consequences)

[4.1 Direct and indirect effects on the administrative environment
19](#direct-and-indirect-effects-on-the-administrative-environment)

[4.2 Direct and indirect effects on the biological and physical
environment
20](#direct-and-indirect-effects-on-the-biological-and-physical-environment)

[4.3 Direct and indirect effects on the economic and social environment
21](#direct-and-indirect-effects-on-the-economic-and-social-environment)

[4.4 Cumulative impacts 22](#cumulative-impacts)

[4.5 Mitigating measures 22](#mitigating-measures)

[4.6 Unavoidable adverse impacts 23](#unavoidable-adverse-impacts)

[4.7 Irreversible and Irretrievable Commitment of Resources
23](#irreversible-and-irretrievable-commitment-of-resources)

[5.0 REGULATORY IMPACT REVIEW 23](#regulatory-impact-review)

[5.1 Introduction 23](#introduction)

[5.2 Problems and Objectives 23](#problems-and-objectives)

[5.3 Methodology and Framework for Analysis
24](#methodology-and-framework-for-analysis)

[5.4 Description of Fisheries 24](#description-of-fisheries)

[5.5 Impacts of Management Measures 24](#impacts-of-management-measures)

[5.6 Alternative 1: Maintain two FMPs and keep Secretarial authority to
promulgate and enforce regulations under the MSA.
25](#alternative-1-maintain-two-fmps-and-keep-secretarial-authority-to-promulgate-and-enforce-regulations-under-the-msa.)

[5.7 Alternative 2: Repeal Council Red Drum FMP and transfer the
Secretary's authority to regulate the harvest and possession of the
Atlantic red drum resource from under the MSA to under the ATLANTIC
COASTAL ACT (Preferred Alternative).
25](#alternative-2-repeal-council-red-drum-fmp-and-transfer-the-secretarys-authority-to-regulate-the-harvest-and-possession-of-the-atlantic-red-drum-resource-from-the-council-under-the-magnuson-stevens-act-to-the-atlantic-states-commission-under-the-atlantic-coastal-act-preferred-alternative.)

[5.8 Alternative 3: Repeal Council Red Drum FMP and transfer authority
to regulate fishing for and possession of Atlantic red drum in federal
waters to individual states.
25](#alternative-3-repeal-council-red-drum-fmp-and-transfer-authority-to-regulate-fishing-for-and-possession-of-atlantic-red-drum-in-federal-waters-to-individual-states.)

[5.9 Public and Private Cost of Regulations
26](#public-and-private-cost-of-regulations)

[5.10 Determination of Significant Regulatory Action
27](#determination-of-significant-regulatory-action)

[6.0 REGULATORY FLEXIBILITY ACT ANALYSIS
27](#regulatory-flexibility-act-analysis)

[6.1 Regulatory Flexibility Act Certification
27](#regulatory-flexibility-act-certification)

[7.0 OTHER APPLICABLE LAW](#__RefHeading___Toc180300833) 28

[7.1 Administrative Procedures Act 28](#administrative-procedure-act)

[7.2 Data Quality Act 28](#data-quality-act)

[7.3 Coastal Zone Management Act 28](#coastal-zone-management-act)

[7.4 Endangered Species Act 29](#endangered-species-act)

[7.5 Essential Fish Habitat 29](#essential-fish-habitat)

[7.6 Marine Mammal Protection Act (MMPA)
30](#marine-mammal-protection-act-mmpa)

[7.7 Executive Order 12612: Federalism
30](#executive-order-12612-federalism)

[7.8 Executive Order 12866: Regulatory Planning and Review
30](#executive-order-12866-regulatory-planning-and-review)

[7.9 Executive Order: 12898: Environmental Justice
31](#executive-order-12898-environmental-justice)

[7.10 Executive Order 12962: Recreational Fisheries
31](#executive-order-12962-recreational-fisheries)

[7.11 Executive Order 13158: Marine Protected Areas
31](#executive-order-13158-marine-protected-areas)

[8.0 OTHER CONSIDERATIONS 32](#other-considerations)

[8.1 National standards 32](#national-standards)

[8.2 State jurisdiction pertaining to the Atlantic Coastal Act
32](#state-jurisdiction-pertaining-to-the-atlantic-coastal-act)

[9.0 LIST OF PREPARERS 32](#list-of-preparers)

[10.0 LIST OF AGENCIES AND ORGANIZATIONS CONSULTED
32](#list-of-agencies-and-organizations-consulted)

[10.1 Coastal Zone Management Programs
33](#coastal-zone-management-programs)

[10.2 Other Agencies, Organizations or Persons
33](#other-agencies-organizations-or-persons)

[11.0 REFERENCES 33](#references)

# PURPOSE AND NEED FOR ACTION

The purpose of this action is to repeal the South Atlantic Fishery
Management Council's Atlantic Coast Red Drum Fishery Management Plan
(Council FMP), drafted in cooperation with the Mid-Atlantic Fishery
Management Council (Council) under the Magnuson-Stevens Act to the
Atlantic States Marne Fisheries Commission (Atlantic States Commission)
under the Atlantic Coastal Act (Magnuson-Stevens Act; 16 USC 1801) to
the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic
Coastal Act; 16 USC 5101). This action was requested by the South
Atlantic and Mid-Atlantic Fishery Management Councils, and by the
Atlantic States Commission.

Currently, management of Atlantic red drum in federal and state waters
is divided between regional fishery management councils and the Atlantic
States Commission. The Magnuson-Stevens Act provides the South Atlantic
and Mid-Atlantic Fishery Management Councils the authority to propose
management measures for red drum in federal waters of the U.S. Atlantic
through the Council Red Drum FMP, and the Secretary the authority to
promulgate and enforce regulations implementing the Council Red Drum
FMP. The South Atlantic Council is the lead Council proposing management
measures for the federal red drum fishery. The Mid-Atlantic Council
provides input to management decisions by participating on the South
Atlantic Council Red Drum Steering Committee. The Atlantic States
Commission has the authority to propose management measures for red drum
in state waters of the U.S. Atlantic through the FMP for Red Drum
(Commission Red Drum FMP). The Atlantic Coastal Act requires Atlantic
Coast states to promulgate and enforce regulations implementing the
Commission Red Drum FMP in their waters. Additionally, the Atlantic
Coastal Act provides the Secretary authority to promulgate and enforce
in federal waters red drum regulations that are compatible with the
Commission Red Drum FMP and consistent with the national standards of
the Magnuson-Stevens Act, if the fishery is not managed under a Council
FMP implemented under the Magnuson-Stevens Act.

Repealing the Council Red Drum FMP would improve the efficiency and
coordination of red drum management by providing just one statutory
authority for red drum management in both state and federal waters of
the U.S. Atlantic. Repealing the Council FMP and transferring management
of Atlantic red drum from the South Atlantic Council under the
Magnuson-Stevens Act to the commission under the Atlantic Coastal Act
would not substantially change fishery management goals or objectives
because any regulations implemented by the Secretary under the Atlantic
Coastal Act must be consistent with the national standards that guide
fishery management and conservation under the Magnuson-Stevens Act. The
proposed action would not change current restrictions established
through the Council Red Drum FMP, which prohibit the harvest or
possession of red drum in federal waters of the U.S. Atlantic. The
Commission Red Drum FMP recommends the Secretary continue the same
prohibitions. Additionally, the proposed action would not change
management authority for the Gulf of Mexico red drum fishery, which is
managed by the Gulf of Mexico Fishery Management Council in its Gulf of
Mexico Red Drum FMP.

# ALTERNATIVES, INCLUDING THE PROPOSED ACTION

## Description of Alternatives

##  {#section-1 .unnumbered}

**Alternative 1: No Action (Status Quo)**

**Alternative 1** would continue the status quo management regime, under
which the Secretary promulgates and enforces in federal waters of the
U.S Atlantic the red drum regulations proposed in the Council Red Drum
FMP. This management regime was needed to conserve and manage red drum
resources in federal waters prior to the passage of the Atlantic Coastal
Act and development of Amendment 2 to the Commission Red Drum FMP.
Because the Atlantic Coastal Act now provides the Secretary the
authority to promulgate and enforce in federal waters red drum
regulations that are compatible with the Atlantic States Commission Red
Drum FMP in the absence of an approved federal fishery management plan
implemented under the Magnuson-Stevens Act retaining the Council Red
Drum FMP now results in an unnecessary duplication of management
authorities and associated management costs.

**Alternative 2 (Preferred): Repeal the Council Red Drum FMP and
transfer Secretarial authority to manage red drum in federal waters of
the U.S. Atlantic from the Magnuson-Stevens Act to the Atlantic Coastal
Act**

**Alternative 2** would repeal the Council Red Drum FMP to provide the
Secretary authority to promulgate and enforce federal red drum
regulations under the Atlantic Coastal Act. This alternative would not
change current restrictions prohibiting the harvest or possession of red
drum in federal waters of the U.S. Atlantic. Rather, it would eliminate
one of two statutory authorities for managing the red drum resource in
federal waters of the U.S. Atlantic. The South Atlantic Council,
Mid-Atlantic Council, and Atlantic States Commission have determined the
Commission Red Drum FMP is a better mechanism for managing the red drum
resource in federal waters of the U.S. Atlantic because, absent the
presence of the Council FMP the Commission FMP could manage the resource
throughout its range and in conjunction with the Atlantic Coast states.

**Alternative 3: Repeal the Council Red Drum FMP and transfer authority
to manage red drum in federal waters of the U.S. Atlantic to the
Atlantic Coast states**

**Alternative 3** would repeal the Council Red Drum FMP and provide the
Atlantic Coast states the ability to manage red drum in federal waters
of the U.S. Atlantic. The Atlantic Coast states bordering the red drum
management unit defined in the Council FMP include Delaware, District of
Columbia, Florida, Georgia, Maryland, New Jersey, North Carolina,
Pennsylvania, South Carolina, and Virginia. Section 306(a)(3) of the
Magnuson-Stevens Act provides states authority to regulate fishing
vessels outside their boundaries in certain circumstances, including but
not limited to when "the fishing vessel is registered under the law of
that state" and "there is no fishery management plan or other applicable
federal fishing regulations for the fishery in which the vessel is
operating."

Currently, the Atlantic Coastal Act requires Atlantic Coast states to
implement and enforce in state waters, regulations established through
the Commission Red Drum FMP. However, the Act does not require states to
implement and enforce those regulations in federal waters off their
states in the absence of a Red Drum FMP established under the authority
of the Magnuson-Stevens Act. Consequently, this alternative would not
guarantee the red drum resource would be protected in federal waters
because state action to modify existing regulations or create new
regulations would be voluntary. Additionally, the alternative would
require regulatory action be coordinated among the states because an
individual state is not authorized to regulate the activities of fishing
vessels in federal waters unless those vessels are registered in that
particular state. For instance, Georgia could prohibit Georgia fishing
vessels from harvesting or possessing red drum in federal waters off
Georgia, but could not prohibit vessels from other states from
harvesting or possessing red drum in those waters. Consequently, all the
states would have to prohibit the harvest or possession of red drum in
federal waters to make such an alternative effective, and such a
coordinated effort would be both difficult and costly to implement and
enforce. If one or more of the Atlantic Coast states did not continue
the moratorium on the harvest and possession of the red drum resource in
federal waters, then the residents of the Atlantic Coast states subject
to the moratorium would be unfairly burdened.

## Comparison of Alternatives

Table 1 provides a summary comparison of the environmental impacts of
the alternatives. These impacts are described in more detail in Section
4.0.

**Table 1. Comparison of Impacts of Alternatives.**

<table style="width:100%;">
<colgroup>
<col style="width: 15%" />
<col style="width: 12%" />
<col style="width: 5%" />
<col style="width: 6%" />
<col style="width: 17%" />
<col style="width: 5%" />
<col style="width: 6%" />
<col style="width: 15%" />
<col style="width: 6%" />
<col style="width: 8%" />
</colgroup>
<tbody>
<tr class="odd">
<td><strong>Alternatives</strong></td>
<td colspan="3"><strong>Administrative</strong></td>
<td colspan="3"><strong>Biological/Physical</strong></td>
<td colspan="3"><strong>Social/Economic</strong></td>
</tr>
<tr class="even">
<td></td>
<td><strong>Effect</strong></td>
<td><strong>+/-</strong></td>
<td><strong>Rank</strong></td>
<td><strong>Effect</strong></td>
<td><strong>+/-</strong></td>
<td><strong>Rank</strong></td>
<td><strong>Effect</strong></td>
<td><strong>+/-</strong></td>
<td><strong>Rank</strong></td>
</tr>
<tr class="odd">
<td><strong>Alt 1: Secretary uses Magnuson-Stevens Act authority to
implement and enforce in federal waters red drum regulations proposed in
Council FMP.</strong></td>
<td>Unnecessary duplication of management efforts</td>
<td>-</td>
<td>2</td>
<td><p>Continued protection of red drum in federal waters through
harvest prohibition</p>
<p>Continued protection of red drum habitat under Council Red Drum
FMP</p></td>
<td><p>+</p>
<p>+</p></td>
<td>1</td>
<td>Continued effects associated with harvest prohibition in federal
waters</td>
<td>- ST + LT</td>
<td>2</td>
</tr>
<tr class="even">
<td><strong>Preferred Alt 2: Secretary uses Atlantic Coastal Act
authority to implement and enforce in federal waters regulations that
are compatible with the Commission FMP and consistent with the national
standards set forth in the Magnuson-Stevens Act.</strong></td>
<td><p>Streamlined management process</p>
<p>More effective coordination among state and federal
management</p></td>
<td><p>+</p>
<p>+</p></td>
<td>1</td>
<td><p>Continued protection of red drum in federal waters through
harvest prohibition</p>
<p>Continued protection of red drum habitat under other Council
FMPs</p></td>
<td><p>+</p>
<p>+</p></td>
<td>1</td>
<td><p>Continued effects associated with harvest prohibition in federal
waters</p>
<p>Decreased management costs</p></td>
<td><p>- ST</p>
<p>+ LT</p>
<p>+</p></td>
<td>1</td>
</tr>
<tr class="odd">
<td><strong>Alt 3: Atlantic Coast states manage red drum in federal
waters.</strong></td>
<td><p>Increased management costs</p>
<p>Decreased management efficiency</p></td>
<td><p>-</p>
<p>-</p></td>
<td>3</td>
<td><p>Possible termination of current harvest prohibition protecting
red drum in federal waters</p>
<p>Continued protection of red drum habitat under other Council
FMPs</p></td>
<td><p>-</p>
<p>+</p></td>
<td>2</td>
<td><p>Unknown (dependent upon if/how federal regulations would be
changed)</p>
<p>Increased management costs</p></td>
<td><p>+/-</p>
<p>-</p></td>
<td>3</td>
</tr>
</tbody>
</table>

ST = Short term

LT = Long term

# AFFECTED ENVIRONMENT

The following summarizes and incorporates by reference relevant
information on the affected environment described in the Council Red
Drum FMP and Amendment 2 to the Commission Red Drum FMP. These documents
can be obtained from the South Atlantic Council (www.safmc.net) and
Atlantic States Commission (www.asfmc.org), respectively.

## Administrative Environment

### The fishery management process and applicable laws

#### Federal fishery management

Current regulations governing the harvest of red drum in federal waters
of the U.S. Atlantic are implemented under the authority of the
Magnuson-Stevens Act. The Magnuson-Stevens Act claims sovereign rights
and exclusive fishery management authority over most fishery resources
within the U.S. exclusive economic zone (EEZ), an area extending 200
nautical miles from the seaward boundary of each of the coastal states,
and authority over U.S. anadromous species and continental shelf
resources that occur beyond the U.S. EEZ.

The Magnuson-Stevens Act divides responsibility for federal fishery
management between the Secretary and eight regional fishery management
councils. The South Atlantic and Mid-Atlantic Councils manage the red
drum resource in federal waters of the U.S. Atlantic, in cooperation
with the Secretary. The South Atlantic Council is responsible for
preparing, monitoring, and revising the Council Red Drum FMP, and has
thirteen voting members: one from NMFS, four from the state fishery
agencies of North Carolina, South Carolina, Georgia, and Florida, and
eight public members appointed by the Secretary. Non-voting Council
members include representatives of the U.S. Fish and Wildlife Service,
U.S. Coast Guard, Department of State, and Atlantic States Commission.
The eight public Council members serve three-year terms and are
appointed by the Secretary from lists of nominees submitted by state
governors. Public interests also are involved in the fishery management
process through participation on South Atlantic Council advisory panels
and through Council meetings, which, with very few exceptions, are open
to the public. The Mid-Atlantic Council provides input to management
decisions by participating on the South Atlantic Council Red Drum
Steering Committee.

The Secretary is responsible for implementing regulations proposed in
the Council Red Drum FMP and FMP amendments after ensuring they are
consistent with the Magnuson-Stevens Act, and with other applicable
laws, including but not limited to the National Environmental Policy
Act, Endangered Species Act, Marine Mammal Protection Act, Regulatory
Flexibility Act, Executive Order 12866, and the Administrative Procedure
Act, which sets forth a "notice and comment" rulemaking process. In most
cases, the Secretary has delegated this management authority to NMFS.

The Atlantic Coastal Act also provides the Secretary authority to
implement regulations governing fishing in federal waters in situations
when there is no approved federal fishery management plan in place under
the Magnuson-Stevens Act, and after the Secretary has consulted with the
appropriate regional fishery management councils. The Act requires such
regulations be compatible with the effective implementation of an
interstate fishery management plan developed by the Atlantic States
Commission, and consistent with the national standards set forth in
Section 301 of the Magnuson-Stevens Act. The Commission can request the
Secretary to implement regulations necessary to implement its FMPs. The
proposed action would not change management authority for the Gulf of
Mexico red drum fishery, which is managed by the Gulf of Mexico Fishery
Management Council in its FMP for the Red Drum fishery of the Gulf of
Mexico.

####  State fishery management

The Atlantic States Commission manages red drum in state waters, which
extend three nautical miles from the shorelines of Atlantic Coast
states. The Atlantic Coastal Act acknowledges the Commission's
management authority, and requires Atlantic Coast states implement and
enforce in state waters regulations proposed in the Commission Red Drum
FMP.

### History of red drum management

The Atlantic States Commission established the first Commission Red Drum
FMP in 1984. The FMP defined the red drum management unit as state
waters extending from Florida to Maryland, and recognized juvenile red
drum had been subject to significant overfishing in state waters for
some time. Four years later, the Commission's Interstate Fisheries
Management Program Policy Board requested all Atlantic Coast states from
Florida to Maine to implement FMP requirements to prevent northern
markets from developing for southern fish species, including red drum.
However, compliance with FMP requirements was voluntary at this time
because the Atlantic Coastal Act had not yet been passed and the FMP's
management unit did not include waters off states north of Maryland.

The South Atlantic Council, in cooperation with the Mid-Atlantic
Council, prepared a Council Red Drum FMP in 1990 to manage the red drum
resource in federal waters of the U.S. Atlantic. The Council FMP defined
the red drum management unit as the population of red drum occurring in
the U.S. EEZ along the Atlantic Coast from the boundary separating
federal waters of the Gulf of Mexico and South Atlantic to the New
Jersey/New York border. The FMP described the following major problems
in the fishery:

1)  Excessive fishing mortality on juvenile red drum, predominantly in
    state waters, resulting in decreased recruitment to the spawning
    stock;

2)  Split jurisdictions, which resulted in a federal FMP implemented by
    the Secretary under the Magnuson-Stevens Act, and a state management
    regime, which lacked authority to ensure Atlantic Coast states
    implemented conservation measures developed by the Commission; and

3)  A critical need for additional biological, economic, and
    sociological data to monitor the status of the red drum resource and
    the effectiveness of proposed management measures.

Additionally, the FMP described the following objectives:

1)  Maintain a spawning stock biomass sufficient to prevent recruitment
    failure by working cooperatively with the states to provide 30%
    escapement of juvenile red drum to the spawning stock and control
    fishing mortality to achieve at least a 30% spawning stock biomass
    per recruit level;

2)  Provide 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 in 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)  Promote 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.

The Councils' FMP recommended, and the Secretary implemented,
regulations prohibiting the harvest or possession of red drum in or from
federal waters of the U.S. Atlantic. Additionally, the FMP recommended
Atlantic Coast states implement regulatory measures needed to achieve
the target level of escapement.

In 1991, the Atlantic States Commission adopted Amendment 1 to the
Commission Red Drum FMP, which was developed with the assistance of the
South Atlantic Council and intended to make the Commission's FMP
compatible with that of the Council. Amendment 1 expanded the management
unit to include state waters from Florida to the New York-New Jersey
boarder, and defined an escapement goal of 10 percent. The Commission\'s
definition of the red drum management unit was later extended eastward
to include the EEZ through Amendment 2 to the Commission FMP.

In 1993, the Atlantic Coastal Act was enacted, and the Commission was
charged with preparing and adopting FMPs to provide for the conservation
of coastal fishery resources, including those distributed across waters
under the jurisdiction of one or more states and the federal government.
Additionally, the Act required states to implement and enforce
Commission FMPs in their waters.

In 1998, the Secretary approved Amendment 1 to the Council Red Drum FMP,
which identified and described essential fish habitat and habitat areas
of particular concern, in accordance with the 1996 amendments to the
Magnuson-Stevens Act. In June 2002, Amendment 2 to the Council Red Drum
FMP established new proxy reference points for red drum, which were
based on the spawning potential ratio (SPR) of the stock. NMFS partially
approved these reference points because available data and information
were not sufficient to estimate their associated numerical values.

In 2000, the South Atlantic Council Red Drum Assessment Group concluded
that, although most states had implemented regulations consistent with
the requirements of Amendment 1 to the Commission's FMP, red drum
continued to be overfished. The Assessment Group noted the escapement
rate was well below the optimum yield of 40 percent SPR defined by the
Council in Amendment 2 to the Red Drum FMP. Later that year, the Council
Red Drum Management Committee and the Commission's South Atlantic
State-Federal Management Board indicated the Commission needed to
implement additional management measures to reduce mortality on juvenile
red drum in state waters.

In 2002, the Atlantic States Commission adopted Amendment 2 to the
Commission Red Drum FMP, which expanded the management unit to encompass
the red drum resource in state and federal waters throughout its
Atlantic coast range in accordance with the Atlantic Coastal Act and the
recommendations of the South Atlantic Council. Amendment 2 established a
goal of achieving and maintaining the optimum yield of the Atlantic red
drum fishery, defined as the amount of harvest that can be taken by U.S.
fishermen while maintaining the static SPR at or above 40 percent. The
amendment provided the states with the flexibility to develop and
implement bag and size limits for red drum in order to meet this
management goal. Other management measures in Amendment 2 included a
coast-wide 27-inch total length (TL) or less maximum size limit and a
payback provision for any commercial fisheries that exceed their current
landings cap. The amendment also required states to maintain current or
more restrictive commercial fishery regulations. In addition to these
measures within the management unit, Amendment 2 proposed that states
outside the management unit (New York through Maine) implement
supportive measures to protect the red drum resource. Specifically,
those states were asked to implement a provision to prohibit the
harvest, possession and sale of red drum greater than 27 inches TL.
Atlantic Coast states from Florida through New Jersey implemented
recreational bag and size limit regulations aimed at achieving the 40
percent SPR goal, and agreed to maintain status quo or more restrictive
commercial fishery regulations.

Following the implementation of Amendment 2 to the Commission Red Drum
FMP, the South Atlantic and Mid-Atlantic Councils determined they had
done all they could to protect the red drum spawning stock, but lacked
the jurisdiction to prevent overfishing of juveniles in state waters.
The Councils recognized that, because the Atlantic Coastal Act provides
the Secretary the authority to implement and enforce in federal waters
red drum regulations that are compatible with the Atlantic States
Commission Red Drum FMP and consistent with the national standards of
the Magnuson-Stevens Act, the Council FMP prepared under the authority
of the Magnuson-Stevens Act presented an unnecessary duplication of
management efforts and costs. 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
Red Drum FMP, and use the authority provided by the Atlantic Coastal Act
to manage red drum in federal waters of the U.S. Atlantic. The
Commission supported this request in a letter dated December 17, 2004,
and recommended the Secretary continue regulations established through
the Council FMP. Specifically, the requested action would require the
Secretary withdraw existing management measures for red drum in federal
waters of the U.S. Atlantic established under the authority of the
Magnuson-Stevens Act and re-issue the same management measures under the
authority of the Atlantic Coastal Act.

##  Biological and Physical Environment

### Red Drum

#### Biology

There is a separate and distinct red drum (*Sciaenops ocellatus)*
population in the Gulf of Mexico and in the Atlantic Ocean. The Gulf red
drum population ranges along the Gulf Coast into northern Mexico. The
Atlantic red drum population ranges from the Gulf of Maine to Key West,
Florida. Management is greatly influenced by the biology of the fish.
The younger fish are found in state waters while the larger fish and the
schools may be found in either the offshore state waters (shore to three
miles) or federal waters (three to 200 miles). Because of this
distribution, juveniles tend to experience higher rates of exploitation
than the offshore adult population. The specific habitat requirements of
the species at different life history stages are described in Section
3.2.1.3.

The red drum exhibits life history characteristics similar to those of
other members of the Sciaenidae family, including croaker, black drum,
and spotted seatrout. The spawning season of western Atlantic sciaenids
is protracted over the spring and summer or fall and winter. The actual
time when spawning begins varies, depending on water temperatures.
However, large schools of spawning red drum tend to congregate around
major passes in relatively shallow water during late summer and fall.
Sciaenids are opportunistic carnivores, which alter their diets as they
grow. Larval sciaenids feed selectively on pelagic zooplankton.
Juveniles feed on invertebrates, then change to a finfish diet as they
mature. While the numbers of larger and older fish have declined, some
fish are still taken that are as much as 60 years old.

#### Status

The red drum fishery is difficult to manage because there are limited
data on the adult population with which to assess stock status. Landings
of red drum are principally sub-adults (ages one to four), and while
there are some catches of older fish, they must be released alive due to
maximum size restrictions. Consequently, fishery regulations are
generally designed to ensure a certain percentage of immature females
survive to become reproductive adults. This concept is referred to as
spawning potential ratio (SPR) and forms the basis for management. SPR
is defined as the ratio of estimated female spawning stock biomass or
egg production in a fished versus unfished stock. The last stock
assessment for this population was conducted in 2000 and included data
through 1998. The following discussion of population status summarizes
information from the 2005 Review of the Commission Red Drum FMP prepared
by the Commission's Red Drum Plan Review Team.

The population models used in the coast-wide assessments (specifically
yield-per-recruit and static SPR) are based on equilibrium assumptions.
Previous estimates of escapement rates (relative survival of red drum
from age at entry to fishery to age four) for 1992 to 1994 ranged from
10.4 percent for the northern region (North Carolina to New Jersey) to
17.2 percent for the southern region (Florida to South Carolina)
(Vaughan 1996). Escapement rate estimates for Florida Atlantic red drum
(to age four) during the period 1992 to 1994 ranged from 30 to 64
percent depending on the assumed size structure of released fish (Murphy
2002). This may mean escapement rates in Georgia and South Carolina are
lower than the regional estimate. Estimates of the static SPR ranged
from 9-14 percent for the northern and southern regions, respectively.
These may be overestimates because most states north of North Carolina
allow adult fish to be taken in the fishery and the analysis assumes no
adult fishing mortality or any discard mortality from commercial fishing
operations and recreational use of commercial (gillnet) gear.

Results of the most recent full assessment (Vaughan and Carmichael 2000)
describe escapement rates for the northern region on the order of 18
percent, but those rates may be overestimated due to a lack of discard
data for both commercial and recreational netting practices. The 15
percent escapement rate estimate provided for the southern region may
not reflect escapement rates throughout the region, because there
appears to be significant differences between Florida and Georgia/South
Carolina. The red drum population off the east coast of Florida appears
to be recovering faster than that in neighboring state waters, which
could be attributed to very strict harvest controls in Florida. The
1999-2000 estimates of annual escapement rates on Florida=s Atlantic
coast ranged from 16 to 54 percent and were highly dependent on the
assumed size structure of the released catch (Murphy 2002). The
assessment also indicated recruitment has seriously declined in the
southern region from a high of 1.2 million recruits to age-1 in 1987 to
200,000 in 1998. Recruitment in the northern region has fluctuated
without trend ranging from 550,000 recruits in 1991 to 75,000 in 1998.
The population will be reassessed in 2008/2009, to determine its status
relative to the 40 percent SPR goal. Currently, information suggests
that overfishing is occurring, although it is not clear if the stock is
overfished.

#### Habitat

Amendment 1 to the Council Red Drum FMP defined red drum essential fish
habitat to include the following habitats to a depth of 50 meters
offshore from Virginia through the Florida Keys: tidal freshwater;
estuarine emergent vegetated wetlands (flooded saltmarshes, brackish
marsh, and tidal creeks); estuarine scrub/shrub (mangrove fringe);
submerged rooted vascular plants (sea grasses); oyster reefs and shell
banks; unconsolidated bottom (soft sediments); ocean high salinity surf
zones; and artificial reefs.

[Spawning Habitat]{.underline}: Early studies led investigators to
conclude that red drum spawn in nearshore areas in the vicinity of
inlets and passes throughout their range (Pearson 1929; Miles 1950;
Simmons and Breuer 1962; Yokel 1966; Jannke 1971; Setzler 1977; Music
and Pafford 1984; Holt et al. 1985). However, evidence now suggests red
drum also utilize high-salinity estuarine areas along the coast (Murphy
and Taylor 1990; Johnson and Funicelli 1991; Nicholson and Jordan 1994;
Woodward 1994). These expansive areas offer adequate conditions for
survival of eggs and larvae and favorable circulation patterns that help
transport larvae to suitable nursery areas (Ross and Stevens 1992). Red
drum spawning has been documented from nearshore waters, in the vicinity
of passes and inlets and inside estuaries such as Pamlico Sound, North
Carolina, and Mosquito Lagoon, Florida (Murphy and Taylor 1990; Wenner
et al. 1990; Johnson and Funicelli 1991; Ross and Stevens 1992; Ross et
al. 1995).

[Egg and Larval Habitat]{.underline}: Nelson et al. (1991) reported red
drum eggs to be commonly encountered in several southeastern estuaries,
in salinities above 25 parts per thousand (ppt). Indeed, laboratory
experiments in Texas (Neill 1987; Holt et al. 1981) established that
optimum temperature and salinity for hatching and survival of red drum
larvae are 25° C and 30 ppt, respectively. The spatial distribution and
relative abundance of eggs in estuaries, as expected, mirrors that of
spawning adults (Nelson et al. 1991) and eggs and early larvae utilize
high salinity waters inside inlets and passes and in the estuary proper.
Johnson and Funicelli (1991) collected viable red drum eggs in Mosquito
Lagoon, Florida, in average daily water temperatures from 20-25° C and
average salinities from 30 to 32 ppt. The largest number of eggs
collected during the study was in depths ranging from 1.5-2.1 meters (m)
and highest concentrations of eggs were found at the edge of the
channel.

Upon hatching, red drum larvae are pelagic (Johnson 1978) and evidence
from laboratory studies indicates that development is temperature
dependent (Holt et al. 1981). They make the transition between pelagic
and demersal habitats upon reaching the nursery grounds (Pearson 1929;
Peters and McMichael 1987; Comyns et al. 1991; Rooker and Holt 1997).
Then they may utilize tidal currents (Setzler 1977); Holt et al. 1989)
or density-driven currents (Mansueti 1960) to attain low-salinity
nurseries in the upper reaches of estuaries (Mansueti 1960; Bass and
Avault 1975; Setzler 1977; Weinstein 1979; Holt et al. 1983b; Holt et
al. 1989; Peters and McMichael 1987; McGovern 1986). Once in the
nurseries, red drum larvae grow rapidly and evidence suggests that red
drum may select nursery areas based on the presence of environmental
conditions that contribute to rapid growth (Baltz et al. 1998).

Red drum larvae along the Atlantic coast are reportedly common in most
major southeastern estuaries, with the exception of Albemarle Sound,
North Carolina, and they are abundant in the St. Johns and Indian River
estuaries, Florida (Nelson et al. 1991). More recently,
Lyczkowski-Shultz and Steen (1991) reported evidence of diel vertical
stratification among red drum larvae found in depths less than 25 m at
both offshore and nearshore locations. Larvae (1.7 to 5.0 mm mean
length) were found at depth during the night and higher in the water
column during the day. At the time of this study, water was well mixed
and temperature ranged between approximately 26**°** and 28° C. No
consistent relationship between the distribution of larvae and tidal
stage was detected.

[Juvenile Habitat]{.underline}: Juvenile red drum utilize a variety of
inshore habitats throughout their range, including tidal freshwater
habitats, low-salinity reaches of estuaries, estuarine emergent
vegetated wetlands, estuarine scrub/shrub, submerged aquatic vegetation,
oyster reefs, shell banks, and unconsolidated bottom (Council 1998). In
general, juvenile red drum are found throughout southeastern estuaries
in all the habitat types described above. In the Chesapeake Bay,
juveniles (20-90 millimeters total length (mm TL)) were collected in
shallow waters from September to November, but no indication as to the
characteristics of the habitat was given (Mansueti 1960). According to
Nelson et al, (1991), southeastern estuaries where juveniles (including
subadults) are abundant are Bogue Sound, NC: Winyah Bay, SC; Ossabaw
Sound, and St. Catherine/Sapelo Sound, GA; and the St. Johns River, FL.
They are highly abundant in the Altamaha River and St. Andrews/St. Simon
Sound, GA, and the Indian River, FL.

North Carolina Division of Marine Fisheries surveys of juvenile red drum
indicate juvenile red drum were consistently abundant in shallow waters
(less than 5 feet) near the mouths of the Pamlico and Neuse Rivers and
in smaller bays and rivers between them. In general, habitats supporting
juvenile red drum in North Carolina can be characterized as detritus or
mud-bottom tidal creeks in western Pamlico Sound and mud or sand bottom
habitat in other areas (Ross and Stevens 1992). Within submerged aquatic
vegetation beds, investigations have shown juveniles to prefer areas
with patchy grass coverage to areas with homogeneous vegetation (Mercer,
1984, Ross and Stevens 1992, Rooker and Holt 1997). Also in a Texas
estuary, young red drum (6 to 27 mm standard length (SL)) were never
present over non-vegetated muddy-sand bottom; highest densities occurred
in the ecotone between seagrass and non-vegetated sand bottom (Rooker
and Holt 1997).

[Subadult Habitat]{.underline}: Red drum begin the subadult phase of
their life cycle upon leaving the shallow nursery habitat at
approximately 200 mm TL (10 months of age). It is at this stage in their
life cycle that red drum utilize a variety of habitats within the
estuary and become most vulnerable to exploitation (Pafford et al.1990;
Wenner 1992). Tagging studies conducted throughout the species range
indicate that most sub-adult red drum tend to remain in the vicinity of
a given area (Beaumarriage 1969; Osburn et al. 1982; Music and Pafford
1984; Wenner at al. 1990; Ross and Stevens 1992; Woodward 1994; Marks
and DiDomenico 1996). Movement within the estuary is most likely related
to changes in temperature and food availability (Pafford et al. 1990;
Woodward 1994).

During 1994 and 1995, the Inshore Fisheries Section of the South
Carolina DNR conducted several aerial surveys to attempt to evaluate
abundance and habitat utilization of subadult red drum along the South
Carolina coast. Aerial surveys were generally deemed inefficient at
estimating the number of fish inhabiting particular areas, especially
inlets and beachfront areas because the visibility of schools from the
air depends on the interplay of temporal, climactic, topographic and
behavioral factors. On the occasions when red drum schools were reliably
located, they were found in flats at the confluence of rivers, inside
inlets, creeks, sounds and bays. Aerial surveys proved useful to
characterize the general topography of sub-adult red drum habitat in the
intertidal and shallow-subtidal portions of the coast. It appears that
typical habitats where sub-adult red drum are found in South Carolina
are of two general types. In the northern portions of the coast, typical
subadult habitat consists of broad (up to 200 m or more in width),
gently sloping flats often leading to the main channel of a river or a
sound. Along the southern portion of the coast, subadult red drum
habitat consists of more narrow (50 m or less), fairly level flats
traversed by numerous small channels, typically 5- to 10-m wide by less
than 2-m deep at low tide.

[Adult Habitat]{.underline}: Along the Atlantic coast, red drum migrate
north and inshore in the spring. In the fall, they migrate offshore and
south. Overall, adults tend to spend more time in coastal waters after
reaching sexual maturity. However, they do continue to frequent inshore
waters on a seasonal basis. Less is known about the biology of red drum
once they reach the adult stage and accordingly, there is a lack of
information on habitat utilization by adult fish. The South Atlantic
Council Habitat Plan (Council 1998) cited high salinity surf zones and
artificial reefs as EFH for red drum in oceanic waters, which comprise
the area from the beachfront seaward. In addition, nearshore and
offshore hard/live bottom areas have been known to attract
concentrations of red drum.

In addition to natural hard/live bottom habitats, red drum also occupy
artificial reefs and other man-made structures. Currently, approximately
120,000 acres or 155 squared nautical miles (nm^2^) of ocean and
estuarine bottom along the South Atlantic have been permitted for the
development of artificial reefs. Artificial reefs are considered
hard/live bottom and were included in the Southeast Area Monitoring and
Assessment Program's (SEAMAP=s) bottom mapping project. Most Atlantic
States have established, or are in the process of developing, artificial
reef management programs

.

Nicholson and Jordan (1994) found adult red drum from late November
until the following May at natural and artificial reefs along tide rips
or associated with the plume of major rivers in Georgia. Data from this
study suggested high seasonal fidelity to a specific area. Fish that
were tagged in the fall along shoals and beaches were relocated to
waters from 9 to 22 kilometers (km) offshore during winter months and
back at the original capture site in the spring. In the summer, fish
moved up the Altamaha River as far as 20 km to what the authors refer as
Apre-spawn staging areas and returned to the same shoal or beach again
in the fall.

### Protected resources

A variety of species inhabiting the management area of the Council Red
Drum FMP are afforded protection under the Marine Mammal Protection Act
(MMPA), the Endangered Species Act (ESA), and/or the Migratory Bird
Treaty Act (MBTA) of 1918. A brief discussion of these species is
provided below. Additional information on protected species in federal
waters of the U.S. Atlantic, their habitats, and the laws that protect
them, can be found at <http://www.nmfs.noaa.gov/pr/species/>.

The proposed action is largely administrative in nature, and is not
expected to alter the effects of current fishing activities on
endangered or threatened species, marine mammals, or their critical
habitat. Because the action would not change current restrictions
prohibiting the harvest or possession of red drum in federal waters of
the U.S. Atlantic, neither protected species nor their critical habitat
would be impacted by red drum fishing in these waters. Any future
proposal to change current fishing regulations would require the lead
agency comply with the protective provisions of the ESA, MMPA, and other
laws.

#### Marine mammals

ESA-listed species of whales known to occur in the affected area include
the sperm whale (*Physeter macrocephalus*), blue whale (*Balaenoptera
musculus*), fin whale (*Balaenoptera physalus*), sei whale
(*Balaenoptera borealis*), humpback whale (*Megaptera noveangliae*), and
northern right whale (*Eubaleana glacialis*). Each of these species is
classified as endangered, which is defined as being in imminent danger
of extinction throughout all or a significant portion of their range.
These species, as well as other marine mammal species in the affected
area are also protected under the MMPA.

#### Marine turtles

Sea turtles known to occur in the affected area include the Kemp's
ridley turtle (*Lepidochelys kempii*), hawksbill turtle (*Eretmochelys
imbricate*), green turtle (*Chelonia mydas*), leatherback turtle
(*Dermochelys coriacea*), and loggerhead turtle (*Caretta caretta*). The
Kemp's ridley, hawksbill, and leatherback turtles are classified as
endangered under the ESA. The loggerhead turtle is listed as threatened,
which signifies it is likely to become endangered in the foreseeable
future. The green turtle is also classified as threatened, with the
exception of the breeding population off Florida, which is listed as
endangered. Because scientists are unable to distinguish which
population a green turtle is from away from the nesting beach, all green
turtles are classified as endangered wherever they occur in U.S.
Atlantic waters.

#### Other listed species

## Two threatened coral species known to occur in the affected area include the elkhorn (Acropora palmata) and staghorn (A. cervicornis) coral. The U.S. distinct population segment of smalltooth sawfish (Pristis pectinata), which occurs in shallow coastal waters of the U.S. Atlantic, was listed as endangered on April 1, 2003. Two seabird species under the jurisdiction of the U.S. Fish and Wildlife Service, Bermuda, also are believed to occur in the affected area: the Bermuda petrel (Pterodrama cahow) and the roseate tern (Sterna dougallii). The Bermuda petrel is endangered throughout its range. The roseate tern is endangered on the Atlantic coast, south to North Carolina, and threatened elsewhere. {#two-threatened-coral-species-known-to-occur-in-the-affected-area-include-the-elkhorn-acropora-palmata-and-staghorn-a.-cervicornis-coral.-the-u.s.-distinct-population-segment-of-smalltooth-sawfish-pristis-pectinata-which-occurs-in-shallow-coastal-waters-of-the-u.s.-atlantic-was-listed-as-endangered-on-april-1-2003.-two-seabird-species-under-the-jurisdiction-of-the-u.s.-fish-and-wildlife-service-bermuda-also-are-believed-to-occur-in-the-affected-area-the-bermuda-petrel-pterodrama-cahow-and-the-roseate-tern-sterna-dougallii.-the-bermuda-petrel-is-endangered-throughout-its-range.-the-roseate-tern-is-endangered-on-the-atlantic-coast-south-to-north-carolina-and-threatened-elsewhere. .unnumbered}

## Economic and Social Environment

The Council Red Drum FMP defines the management unit as the population
of red drum occurring in federal waters of the U.S. Atlantic from the
New York/New Jersey line to the federal boundary between the South
Atlantic and Gulf of Mexico. The Commission Red Drum FMP as amended
defines the management unit as the population of red drum occurring in
both state and federal waters from the New York/New Jersey line to the
federal boundary between the South Atlantic and Gulf of Mexico.

The red drum is a very popular recreational species throughout the
region because of its intense fight and popularity as a food fish.
Several Atlantic Coast states have declared red drum "game fish," and
have prohibited the commercial harvest and sale of this species. The
recreational fisheries target small "puppy drum" in shallow estuarine
waters and large trophy fish along the Mid- and South Atlantic barrier
islands. They primarily use hook and line gear, although some North
Carolina fishermen take red drum recreationally with gill nets. Since
the 1980s, recreational fishing has accounted for about 90 percent of
all red drum landings on the Atlantic coast. The number of red drum
harvested by recreational fishermen has generally ranged from 300,000 to
500,000 since 1981. Over a million fish were taken in both 1984 and
1985, but this was exceptional. Recreational harvest in 2004 was about
465,600 fish (1.5 mp), the majority taken by Florida, Georgia, and South
Carolina anglers. The number of red drum released by recreational
fishermen in 2004 was approximately 1.9 million fish, an increase from
the estimated 1.5 million red drum released in 2003.

Commercial red drum fisheries landed 58,000 to 422,000 pounds annually
from 1960 to 2003, with no apparent trends. Historically, the majority
of the commercial red drum harvest was landed in North Carolina and
Florida. However, Florida prohibited the commercial harvest of red drum
in January 1989. North Carolina, Virginia, and Maryland are currently
the only Atlantic Coast states with commercial red drum fisheries. These
are generally non-directed fisheries, using pound nets, shrimp trawls,
hand lines, haul seines, and gill nets. Coast-wide commercial landings
for 2004 were approximately 54,736 pounds, the majority (98.8***%***) of
which was landed in North Carolina. This is the lowest number of
commercial landings recorded for red drum. Commercial harvest in North
Carolina fisheries is controlled by a 250,000 pound annual catch quota.

  ------- ------- ------- ----- ------- -------- --------- ----------- -------- -------- ----------- ------------
  Year    RI      NY      NJ    DE      MD       VA        NC          SC       GA       FL EC       Total

  1960                                  200      29,400    79,300      4,200    400      129,000     242,500

  1961                                           12,000    89,700      900      1,000    114,500     218,100

  1962                                           12,900    60,900                        149,300     223,100

  1963                                           2,700     71,200                        134,200     208,100

  1964                                           4,600     101,500     11,500            119,000     236,600

  1965                                  1,200    94,900    71,400                        146,300     313,800

  1966                                  200      3,100     35,200      200      2,700    153,000     194,400

  1967                                           1,100     12,800      900      5,800    147,100     167,700

  1968                                           100       12,500               5,500    167,000     185,100

  1969                                  400      700       3,900       700      2,700    119,000     127,400

  1970                                           100       7,500       400      2,200    146,800     157,000

  1971                                           700       17,200      1,300    1,200    85,200      105,600

  1972                                           5,900     42,900      1,200    3,400    128,400     181,800

  1973                          900              6,200     70,300      600      3,700    166,500     248,200

  1974                                           15,700    142,000     2,300    3,100    137,300     300,400

  1975                          200              19,600    214,000     12,400   10,000   83,300      339,500

  1976                                           18,600    168,200     2,600    7,300    106,000     302,700

  1977                          200              300       19,700      800      5,000    103,500     129,500

  1978                          300              2,100     21,774      4,325    328      104,696     133,523

  1979                                  100      1,900     126,517     1,767    935      92,684      223,903

  1980                                           400       243,223     4,107    1,493    191,222     440,445

  1981                                           200       93,420               261      258,374     352,255

  1982                                           1,700     52,561      2,228    251      139,170     195,910

  1983                                  100      41,700    219,871     2,274    1,126    105,164     370,235

  1984                                           2,600     283,020     3,950    1,961    130,885     422,416

  1985                                           1,100     152,676     3,512    3,541    88,929      249,758

  1986                                  1,000    5,400     249,076     12,429   2,939    77,070      347,914

  1987                                           2,600     249,657     14,689   4,565    42,993      314,504

  1988                                  8,100    4,000     220,271              3,281    284         235,936

  1989                                  1,000    8,200     274,356     165      3,963                287,684

  1990                                  29       1,481     183,216              2,763                187,489

  1991                                  7,533    24,771    96,045               1,637                129,986

  1992                                  742      2,352     128,497              1,759                133,350

  1993                                  121      8,637     238,099              2,533                249,390

  1994    5,094                         1,152    4,080     142,160              2,141                154,627

  1995            668                   6        2,992     248,200              2,578                254,444

  1996            8                              2,073     113,401              2,271                117,753

  1997    43                            24       4,049     52,548               1,395                58,059

  1998    165     57      311           419      6,436     294,415              672                  302,475

  1999            47      241           707      12,368    372,996              1,115                387,474

  2000            1,215                 877      11,457    271,013              707                  285,269

  2001            58      14            727      5,318     149,674                                   155,791

  2002            116                            7,752     79,767                                    87,635

  2003            43                    819      2,839     105,759                                   109,460

  2004            25      12                     788       54,117                                    54,942

  2005                                           665       128,821                                   129,486

  2006                                           2,085     168,548                                   170,633

  Total   5,302   2,237   578   1,600   25,456   400,643   6,233,898   89,446   98,215   3,566,871   10,424,246
  ------- ------- ------- ----- ------- -------- --------- ----------- -------- -------- ----------- ------------

**Table 2. Commercial landings in pounds of red drum along Atlantic
coast 1960-2006.**

# ENVIRONMENTAL CONSEQUENCES

**Alternative 1: No Action (Status Quo)**

**Alternative 2 (Preferred): Repeal the Council Red Drum FMP and
transfer Secretarial authority to manage red drum in federal waters of
the U.S. Atlantic from the Magnuson-Stevens Act to the Atlantic Coastal
Act**

**Alternative 3: Repeal the Council Red Drum FMP and transfer authority
to manage red drum in federal waters of the U.S. Atlantic to the
Atlantic Coast states**

## Direct and indirect effects on the administrative environment

**Alternative 1 (no action)** would maintain the status quo management
regime, under which the Secretary promulgates and enforces in federal
waters of the U.S Atlantic the red drum regulations proposed in the
Council Red Drum FMP under the authority of the Magnuson-Stevens Act.
This management regime was needed to conserve and manage red drum
resources in federal waters prior to the passage of the Atlantic Coastal
Act and development of Amendment 2 to the Commission Red Drum FMP, which
expanded the red drum management unit to cover the stock throughout its
Atlantic coast range. However, because the Atlantic Coastal Act now
provides the Secretary authority to regulate the federal red drum
fishery in the absence of a Council FMP, the Councils' and NMFS' efforts
to monitor, adjust, and enforce regulations in the Council Red Drum FMP
are unnecessarily burdensome. Consequently, Alternative 1 would
directly, negatively affect the administrative environment by continuing
to require fishery managers to invest limited time and resources in a
fishery management plan that is no longer needed.

**Preferred Alternative 2** would repeal the Council Red Drum FMP to
provide the Secretary authority to promulgate and enforce in federal
waters red drum regulations that are compatible with the Commission Red
Drum FMP under the Atlantic Coastal Act and consistent with the national
standards set forth in the Magnuson-Stevens Act. The South Atlantic
Council, Mid-Atlantic Council, and Atlantic States Commission have
determined the statutory authority provided the Secretary under the
Atlantic Coastal Act would improve state-federal cooperation in red drum
management, and eliminate the unnecessary duplication of management
efforts associated with monitoring and enforcing two separate red drum
FMPs. Preferred Alternative 2 is expected to directly, positively affect
the administrative environment by streamlining the management process
and more effectively coordinating state and federal fishery management.

**Alternative 3** would repeal the Council Red Drum FMP and provide the
Atlantic Coast states the ability to manage red drum in federal waters
of the U.S. Atlantic. Currently, the Atlantic Coastal Act requires
Atlantic Coast states implement and enforce in state waters, regulations
established through the Commission Red Drum FMP. However, the Act does
not require states to implement and enforce those regulations in federal
waters off their states in the absence of a Red Drum FMP established
under the authority of the Magnuson-Stevens Act. Consequently, this
alternative would require the Atlantic Coast states modify existing
regulations or create new regulations if they chose to continue
regulating red drum harvest in federal waters. Additionally, the
alternative would require regulatory action be coordinated among the
states because an individual state is not authorized to regulate the
activities of fishing vessels in federal waters unless those vessels are
registered in that particular state. Therefore, Alternative 3 would have
the greatest direct negative effect on the administrative environment
relative to the other alternatives by increasing the number of red drum
jurisdictional authorities in federal waters of the U.S. Atlantic,
resulting in decreased management efficiency and increased management
costs.

## Direct and indirect effects on the biological and physical environment

**Alternative 1 (no action)** would maintain the status quo management
regime, under which the Secretary promulgates and enforces in federal
waters of the U.S Atlantic the red drum regulations proposed in the
Council Red Drum FMP under the authority of the Magnuson-Stevens Act.
Federal regulations implemented under the Council Red Drum FMP directly
benefit the biological and physical environment by prohibiting the
harvest or possession of red drum in and from federal waters of the U.S.
Atlantic and providing a mechanism to mitigate or minimize adverse
impacts on red drum habitat. These benefits would continue unchanged
under this alternative.

**Preferred Alternative 2** would repeal the Council Red Drum FMP to
provide the Secretary authority to promulgate and enforce in federal
waters red drum regulations that are compatible with the Commission Red
Drum FMP under the Atlantic Coastal Act and consistent with the national
standards set forth in the Magnuson-Stevens Act. This alternative would
not directly or indirectly affect the biological or physical environment
because it would not change current restrictions on fishing activities
in federal waters of the U.S. Atlantic. Rather it would simply eliminate
one of two statutory authorities for managing the red drum resource in
federal waters.

Early discussions about the effects of Preferred Alternative 2 raised
the issue of whether current protections to the essential habitat of the
red drum resource would continue if Secretarial authority to manage the
red drum resource in federal waters were transferred from the
Magnuson-Stevens Act to the Atlantic Coastal Act. The Magnuson-Stevens
Act requires all FMPs prepared by regional fishery management councils
or the Secretary describe and identify essential fish habitat for the
managed fishery, minimize to the extent practicable adverse effects on
such habitat caused by fishing, and identify other actions to encourage
the conservation and enhancement of such habitat. The Atlantic Coastal
Act does not contain similar protective provisions. However, because
those habitats identified as essential to the red drum resource also are
identified as essential to other Council-managed species, current
protections would continue unchanged if the Council Red Drum FMP were
repealed, unless the essential fish habitat of other Council-managed
species was more narrowly defined at a future date to exclude the
essential fish habitat of the red drum resource. This is unlikely to
occur, as available information indicates the habitat requirements of
red drum overlap with those of many other Council-managed species.
Therefore, Preferred Alternative 2 is not expected to adversely affect
the essential fish habitat. The same benefits associated with the No
Action Alternative 1 are expected to continue unchanged under this
alternative.

**Alternative 3** would repeal the South Atlantic Council Red Drum FMP
and provide the Atlantic Coast states the ability to manage red drum in
federal waters of the U.S. Atlantic. Because state action to manage the
red drum resource in federal waters would be voluntary if this
alternative were adopted, the potential effects of the alternative on
the biological and physical environments are unknown. However, they
could not be more beneficial than those associated with Alternatives 1
and 2, which would maintain the current red drum harvest prohibition in
federal waters of the U.S. Atlantic, and they may be negative if the
states did not take the necessary action to continue the prohibition.

## Direct and indirect effects on the economic and social environment

**Alternative 1 (no action)** would maintain the status quo management
regime, under which the Secretary promulgates and enforces in federal
waters of the U.S Atlantic the red drum regulations proposed in the
Council Red Drum FMP under the authority of the Magnuson-Stevens Act.
Federal regulations implemented under the Council Red Drum FMP directly
affect the economic and social environment by prohibiting the harvest or
possession of red drum in federal waters of the U.S. Atlantic. The
immediate effects of this prohibition are negative because it precludes
the development of commercial and recreational red drum fisheries in
federal waters. The long-term benefits of this prohibition are positive
because it protects adult red drum, which are essential to rebuilding
the population and providing larger, sustainable harvests in the future.
These short-term and long-term effects would continue unchanged under
this alternative.

**Preferred Alternative 2** would repeal the Council Red Drum FMP to
provide the Secretary authority to promulgate and enforce in federal
waters red drum regulations that are compatible with the Commission Red
Drum FMP under the Atlantic Coastal Act and consistent with the national
standards set forth in the Magnuson-Stevens Act. This alternative would
not affect the current prohibition on the harvest or possession of red
drum in or from federal waters of the U.S. Atlantic. Consequently, the
effects of this prohibition, which are described under the No Action
Alternative 1, would continue unchanged. However, Preferred Alternative
2 would provide an additional direct economic benefit by eliminating the
unnecessary management costs associated with maintaining the Council Red
Drum FMP.

**Alternative 3** would repeal the Council Red Drum FMP and provide the
Atlantic Coast states the ability to manage red drum in federal waters
of the U.S. Atlantic. The economic and social environment could be
directly affected by this alternative depending upon if and how it
affected regulations governing red drum harvest in federal waters of the
U.S. Atlantic. Regardless of whether the states maintained the current
regulations prohibiting the harvest or possession of red drum in federal
waters or implemented less restrictive regulations, the socioeconomic
effects of Alternative 3 are expected to be adverse relative to the
effects of Alternatives 1 and 2 because the management regime proposed
in Alternative 3 is costly and would require a great deal of
coordination.

## Cumulative impacts

Currently, the Atlantic red drum population is managed under two
separate authorities. First, the South Atlantic and Mid-Atlantic
Councils manage red drum in federal waters of the U.S. Atlantic through
the Council Red Drum FMP. Second, the Atlantic States Commission manages
red drum in state waters through the Commission Red Drum FMP.

The proposed action would repeal the Council Red Drum FMP to end what
has become an unnecessary duplication of management efforts with higher
than necessary management costs. Eliminating the Council Red Drum FMP
would transfer Secretarial authority to regulate red drum harvest in
federal waters from the Council under the Magnuson-Stevens Act to the
Atlantic States Commission under Atlantic Coastal Act. Under this
proposed management scenario, the Secretary would implement and enforce
in federal waters red drum regulations that are compatible with the
Commission Red Drum FMP, rather than red drum regulations proposed in
the Council Red Drum FMP. The proposed action would not change current
restrictions specified in the Council Red Drum FMP, which prohibit the
harvest or possession of red drum in and from federal waters of the U.S.
Atlantic. The Commission Red Drum FMP also supports these restrictions.

The proposed action is administrative in nature, and is not expected to
cause or contribute to any direct or indirect significant impacts on the
human environment. Additionally, the proposed action is not dependent on
or related to any other foreseeable actions that would impact the same
affected environment. The only foreseeable impacts of the proposed
action are benefits related to streamlining and better coordinating
management of the Atlantic red drum resource.

## Mitigating measures

The proposed action would end unnecessary duplication of management
efforts and reduce management costs without adversely affecting the red
drum resource. The current prohibition on the harvest or possession of
red drum in or from federal waters of the U.S. Atlantic would continue.
No fisherman, fishing sector, related sector, or fishing community would
be affected by the action. Consequently, no adverse impacts requiring
mitigation are expected. While NMFS anticipates no adverse impacts from
this action, the agency would be in a position to mitigate any
unforeseen impacts by:

-   Monitoring the impacts of this action on the fishery and considering
    public comments received on the proposed rule;

-   Continuing to work closely with the Atlantic States Commission's
    South Atlantic State/Federal Fisheries Management Board, which is
    responsible for red drum management; and

-   Working with the Atlantic States Commission to adjust the Atlantic
    States Commission Red Drum FMP in response to changing environmental
    conditions or other factors influencing stock rebuilding.

## Unavoidable adverse impacts

The proposed action is consistent with the objectives of the Atlantic
Coastal Act and Magnuson-Stevens Act, and is not expected to have any
unavoidable adverse impacts.

## Irreversible and Irretrievable Commitment of Resources 

The proposed action is consistent with the objectives of the Atlantic
Coastal Act and Magnuson-Stevens Act, and is not expected to have any
irreversible or irretrievable commitments of resources. The proposed
action does not preclude the Secretary from re-establishing a federal
Red Drum FMP under the Magnuson-Stevens Act.

# REGULATORY IMPACT REVIEW

##  Introduction

NMFS requires a Regulatory Impact Review (RIR) for all regulatory
actions that are of public interest. The RIR does three things: (1) it
provides a comprehensive review of the level and incidence of impacts
associated with a regulatory action; (2) it provides a review of the
problems and policy objectives prompting the regulatory proposals and an
evaluation of the major alternatives which could be used to solve the
problem; and (3) it ensures that the regulatory agency systematically
and comprehensively considers all available alternatives so that the
public welfare can be enhanced in the most efficient and cost effective
way.

The RIR also serves as the basis for determining whether any proposed
regulations are a \"significant regulatory action\" under certain
criteria provided in Executive Order 12866 (E.O. 12866) and whether the
approved regulations will have a \"significant economic impact on a
substantial number of small business entities\" in compliance with the
Regulatory Flexibility Act of 1980 (RFA).

##  Problems and Objectives

The purpose and need, issues, problems, and objectives of the rule are
presented elsewhere in this document and are incorporated herein by
reference. In summary, the purpose of this rule is to avoid unnecessary
duplication of management efforts, which creates unnecessary costs and
is in violation of National Standard 7 of the Magnuson-Stevens Act. To
end the unnecessary duplication of management efforts and the higher
than necessary management costs, this action: 1) repeals the Council FMP
and 2) moves the Secretary's authority to promulgate and enforce
regulations to manage the Atlantic red drum resource in the Atlantic
coast EEZ from the Council under the Magnuson-Stevens Act to the
Atlantic States Commission under the Atlantic Coastal Act in order to
implement the Commissions FMP in the EEZ.

## Methodology and Framework for Analysis

This RIR assesses management measures from the standpoint of determining
the resulting changes in costs and benefits to society. To the extent
practicable, the net effects of regulatory measures should be stated in
terms of producer and consumer surplus, changes in profits, employment
in the direct and support industries, and participation by recreational
fishers where practicable. This rule does not change existing fishing
practices.

## Description of Fisheries

A description of communities in the South Atlantic with substantial
involvement in marine fishing is provided in Jepson et al. (2006) and
incorporated herein by reference.

## Impacts of Management Measures

Currently, management of the Atlantic red drum fishery is split between
two separate management authorities: the Council and the Atlantic States
Commission. First, under the authority of the Magnuson-Stevens Act, the
Council manages the Atlantic red drum resource in the EEZ through its
Red Drum FMP and the Secretary promulgates and enforces regulations to
implement that FMP. Second, under the authority of the Atlantic Coastal
Act, the Atlantic States Commission manages red drum in Atlantic state
waters and can manage red drum in the EEZ through its red drum FMP, as
amended in 2002, and the Secretary can promulgate and enforce
regulations to implement the Commission's FMP in their waters. (The
Atlantic Coastal Act requires the Commission's FMP to have management
and conservation measures that conserve Atlantic red drum throughout its
range, which includes the EEZ). Neither alternative affects fishermen,
fishing vessels, or existing fishing practices.

## Alternative 1: Maintain two FMPs and keep Secretarial authority to promulgate and enforce regulations under the MSA. 

This alternative is the status quo alternative. It will retain the
Council and Commission's Red Drum FMPs and would keep the Secretary's
authority to promulgate and enforce regulations under the
Magnuson-Stevens Act. Consequently, it will continue unnecessary
duplication of management efforts.

## Alternative 2: Repeal Council Red Drum FMP and transfer the Secretary's authority to regulate the harvest and possession of the Atlantic red drum resource from the Council under the Magnuson-Stevens Act to the Atlantic States Commission under the Atlantic Coastal Act (Preferred Alternative). 

In 1990, two management authorities and two FMPs were necessary to
manage the Atlantic red drum resource throughout its range: the Council
and its Red Drum FMP, which covered red drum in the Atlantic EEZ, and
the Commission and its FMP, which covered red drum in Atlantic State
waters, because neither the Council nor the Commission had the legal
authority to develop an FMP for Atlantic red drum throughout its range,
which includes both State and Federal waters. Now, however, under the
Atlantic Coastal Act as amended in 2002, the Commission has the
authority to manage red drum throughout its range. Furthermore, under
the Atlantic Coastal Act, the Secretary has the authority to promulgate
and enforce regulations to implement the Commission's FMP in the
Atlantic EEZ in the absence of a Federal FMP. Consequently, the Council
FMP has become an unnecessary duplication of management effort and
raises management costs, thus, violating NS 7 of the Magnuson-Stevens
Act.

This action will repeal the Council Red Drum FMP and transfer the
Secretary's authority to regulate harvest and possession of red drum in
and from the EEZ from under the Magnuson-Stevens Act to under the
Atlantic Coastal Act, as requested by the Council, Commission, and
Mid-Atlantic Fishery Management Council. In so doing, it will end
unnecessary duplication of management efforts and reduce management
costs without adversely affecting conservation of the red drum resource.
Furthermore, a single management authority may result in more efficient
and timely management action in the future.

This alternative does not change existing fishing practices, and does
not affect fishermen or fishing vessels. Thus, it imposes no costs,
while yielding a benefit in the form of lower management costs.

## Alternative 3: Repeal Council Red Drum FMP and transfer authority to regulate fishing for and possession of Atlantic red drum in federal waters to individual states.

Currently, the Atlantic Coastal Act requires Atlantic Coast States to
promulgate and enforce regulations to implement the Commission's FMP in
their waters. However, it does not require the States to extend those
responsibilities to the Atlantic Coast EEZ in the absence of Federal
regulations that implement the Commission's FMP. Thus, this alternative
depends upon combined voluntary efforts of the States to regulate
fishing vessels and enforce those regulations in Federal waters.

The 16 Atlantic Coast States are Connecticut, Delaware, District of
Columbia, Florida, Georgia, Maine, Maryland, Massachusetts, New Jersey,
New Hampshire, New York, North Carolina, Pennsylvania, Rhode Island,
South Carolina, and Virginia. Presently, these States do not have
regulations concerning harvest or possession of red drum in or from the
Atlantic Coast EEZ. This option wholly depends upon the States to
voluntarily promulgate and enforce regulations to implement the
Commission's FMP in federal waters, which would require States to change
existing regulations, which in most cases would require State
legislative action. Such legislative action would also require
coordination among the States because of jurisdictional limits.
Specifically, a State could not regulate the activities of fishing
vessels in the Atlantic Coast EEZ that are not registered in that
particular State, so all States would have to be actively enforcing
their regulations in Federal waters. For instance, Georgia could
prohibit Georgia fishing vessels from fishing for or possessing red drum
in the Atlantic Coast EEZ, but could not prohibit vessels from other
States from fishing for or possessing red drum in those waters. All
other States would have to pass and enforce regulations prohibiting
fishing for or possessing red drum in the Atlantic Coast EEZ as well,
which would be time consuming and costly for these States. Thus, two
major problems with this alternative are that: 1) it does not guarantee
that the red drum resource will be protected in Federal waters because
it is wholly dependent on voluntary State actions, and 2) the costs to
the States to promulgate and enforce regulations would be significant in
terms of dollars and time.

## Public and Private Cost of Regulations

The preparation, implementation, enforcement, and monitoring of this or
any Federal action involves the expenditure of public and private
resources which can be expressed as costs associated with the
regulations. Costs associated with this amendment include:

NOAA Fisheries administrative costs of document

preparation, meetings and review \$50,000

Annual law enforcement costs \$0

TOTAL \$50,000

Law enforcement currently monitors regulatory compliance in this fishery
under routine operations and does not allocate specific budgetary
outlays to this fishery. No increase in enforcement budgets is expected
to be requested in response to this action.

## Determination of Significant Regulatory Action

Pursuant to E.O. 12866, a regulation is considered a \"significant
regulatory action\" if it is expected to result in:  (1) an annual
effect of \$100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights or obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President\'s priorities, or the principles set forth in
this executive order.  A final determination of the significance of this
regulatory action will be made by the Secretary of Commerce based on the
information included in this RIR and on any additional information
deemed relevant.

# REGULATORY FLEXIBILITY ACT ANALYSIS 

The Regulatory Flexibility Act (RFA) of 1980 (5 USC 301 et seq.)
requires federal agencies to assess the impacts of regulatory actions
implemented through notice and comment rulemaking procedures on small
businesses, small organizations, and small governmental entities, with
the goal of minimizing adverse impacts of burdensome regulations and
record-keeping requirements on those entities. Under the RFA, NOAA
Fisheries Service must determine whether a proposed fishery regulation
would have a significant economic impact on a substantial number of
small entities. If not, a certification to this effect must be prepared
and submitted to the Chief Counsel for Advocacy of the Small Business
Administration. It has been determined that this action would not have a
significant economic impact on a substantial number of small entities;
therefore a certification to this effect has been prepared.

##  Regulatory Flexibility Act Certification

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 prohibition in the EEZ, and NMFS and the
U.S. Coast Guard would continue to enforce that prohibition.

# OTHER APPLICABLE LAW

The Magnuson-Stevens Act (16 USC 1801 et seq.), as amended and
reauthorized, governs the conservation and management of ocean fishing
in the United States. The purpose of the Magnuson-Stevens Act is to
create sustainable fisheries in United States Waters through elimination
of overfishing and rebuilding of overfished stocks important to
commercial, recreational, and subsistence fisheries. In addition to the
Magnuson-Stevens Act, the Council and NOAA Fisheries Service must comply
with many applicable laws during the preparation of FMPs and FMP
amendments. Major laws pertinent to this fishery management action are
summarized below.

## Administrative Procedure Act

All federal rulemaking is governed under the provisions of the
Administrative Procedure Act (APA) (5 U.S.C. Subchapter II), which
established a "notice and comment" procedure to enable public
participation in the rulemaking process. Under the APA, NOAA Fisheries
Service is required to publish notification of proposed rules in the
*Federal Register* and to solicit, consider, and respond to public
comment on those rules before they are finalized. The APA also
establishes a 30-day wait period from the time a final rule is published
until it takes effect.

## Data Quality Act

The Data Quality Act (DQA) (Public Law 106-443) effective October 1,
2002, requires the government to set standards for the quality of
scientific information and statistics used and disseminated by federal
agencies. Specifically, the Act directs the Office of Management and
Budget (OMB) to issue government wide guidelines that "provide policy
and procedural guidance to federal agencies for ensuring and maximizing
the quality, objectivity and procedural integrity of information
disseminated by federal agencies." Such guidelines have been issued,
directing all federal agencies to create and disseminate agency-specific
standards to: (1) ensure information quality and develop a
pre-dissemination review process; (2) establish administrative
mechanisms allowing affected persons to see and obtain correction of
information; and (3) report periodically to OMB on the number and nature
of complaints received. Pursuant to Section 515 of Public Law 106-554,
this information document has undergone a pre-dissemination review by
the Southeast Regional Office, Sustainable Fisheries Division, and is
available upon request.

## Coastal Zone Management Act 

Section 307 (c)(1) of the federal Costal Zone Management Act (CZMA) of
1972, as amended requires that federal activities that affect any land
or water use or natural resources of a state's coastal zone be conducted
in a manner consistent, to the maximum extent practicable, with approved
state coastal management programs. The requirements for such consistency
determinations are set for in NOAA regulations at 15 CFR part 930,
subpart C. NOAA Fisheries Service has determined this action is
consistent with the Coastal Zone Management programs of all states from
New Jersey through Florida.

## Endangered Species Act

The Endangered Species Act (ESA) of 1973 (16 U.S.C. Section 1531 et
seq.) requires that federal agencies use their authority to conserve
threatened and endangered species. They must ensure actions they
authorize, fund or carry out, are not likely to harm the continued
existence of those species or the habitat designated as critical to
their survival and recovery. The ESA requires NOAA Fisheries Service to
consult with the appropriate administrative agency (itself or most
marine species, the U.S. Fish and Wildlife Service for all remaining
species) when proposing an action that "may affect" critical habitat or
threatened or endangered species. Consultations are necessary to
determine the potential impacts of the proposed action. They are
concluded informally when proposed actions may affect but are "not
likely to adversely affect" threatened or endangered species or
designated critical habitat. Formal consultations, including biological
opinions, are required when proposed actions may affect and are "likely
to adversely affect" threatened or endangered species or adversely
modify designated critical habitat. If jeopardy or adverse modification
is found, the consulting agency is required to suggest reasonable and
prudent alternatives.

NOAA Fisheries Service, Office of Protected Resources conducted an
informal Section 7 consultation and has determined that fishing
activities pursuant to this rule are not likely to affect endangered and
threatened species or critical habitat in any manor not considered in
prior consultations on this fishery. The proposed action would transfer
regulatory authority of harvest and possession of red drum in U.S.
Atlantic waters from the Magnuson-Stevens Act, to the Atlantic Coastal
Act. This action is administrative in nature and will not change the
current restrictions affecting this fishery upon implementation.

## Essential Fish Habitat 

Section 305(b)(2) of the amended Magnuson-Stevens Act directs each
Federal Agency to consult with the Secretary with respect to any action
authorized, funded, or undertaken, or proposed to be authorized, funded
or undertaken, by such agency that may adversely affect any essential
fish habitat (EFH) identified under the Magnuson-Stevens Act. To address
this requirement, a review of the proposed activity was conducted by
NOAA Fisheries Service, Habitat Division, who determined that this
action is administrative in nature and will not change the current
conditions of EFH affected by this fishery upon implementation.
Therefore, this action would have no adverse impacts on any areas
identified as EFH for U.S. fisheries, and no EFH consultation is needed.

## Marine Mammal Protection Act (MMPA)

The MMPA established a moratorium, with certain exceptions, on the
taking of marine mammals in U.S. waters and by U.S. citizens on the high
seas, and on the importing of marine mammals and marine mammal products
into the Unites States. Under the MMPA, the Secretary (authority
delegated to NOAA Fisheries Service) is responsible for the conservation
and management of cetaceans and pinnipeds (other than walruses). The
Secretary of the Interior is responsible for walruses, sea and marine
otters, and polar bears, manatee and dugongs.

The MMPA requires commercial fisheries to be placed in one of three
categories, based on the relative frequency of incidental serious
injuries and mortalities of marine mammals in each fishery. Category I
designates fisheries with frequent serious injuries and mortalities
incidental to commercial fishing; Category II designates fisheries with
occasional serious injuries and mortalities; and Category III designates
fisheries with a remote likelihood or no known serious injuries or
mortalities. Red drum are typically caught using a hook and line method
making it a Category III fishery. However, they are sometimes caught
incidentally by gill net gear being used in Category I fisheries. This
action does not change how the red drum fishery is prosecuted.

## Executive Order 12612: Federalism

E.O. 12612 requires agencies to be guided by the fundamental federalism
principals when formulating and implementing policies that have
federalism implications. The purpose of the Order is to guarantee the
division of governmental responsibilities between the federal government
and the states, as intended by the framers of the Constitution. No
federalism issues have been identified relative to this proposed action.
The affected states have been closely involved in developing the
proposed management measures and the principal state officials
responsible for the fisheries management in their respective states have
not expressed federalism related opposition to the proposed action.

## Executive Order 12866: Regulatory Planning and Review

E.O. 12866, signed in 1993, requires federal agencies to assess the
costs and benefits of their proposed regulations, including
distributional impacts, and to select alternatives that maximize net
benefits to society. To comply with E.O. 12866, NOAA Fisheries Service
prepares a Regulatory Impact Review (RIR) for all fishery regulatory
actions that implement a new FMP or that significantly amend and
existing plan. RIRs provide a comprehensive analysis of the costs and
benefits to society associated with proposed regulatory actions, that
problems and policy objectives prompting the regulatory proposals, and
the major alternatives that could be used to solve the problems. The
reviews also serve as the basis for the agency's determinations as to
whether proposed regulations are a "significant regulatory action" under
the criteria provided in E.O. 12866 and whether proposed regulations
will have a significant economic impact on a substantial number of small
entities in compliance with the RFA. A regulation is significant if it
is likely to result in an annual effect on the economy of at least
\$100,000,000 or if it has other major economic effects.

## Executive Order: 12898: Environmental Justice

E.O. 12898 requires that federal agencies conduct their programs,
policies, and activities in a manner to ensure that individuals or
populations are not excluded from participation in, or denied the
benefits of, or subjected to discrimination because of their race,
color, or national origin. In addition, and specifically with respect to
subsistence consumption of fish and wildlife, Federal agencies are
required to collect, maintain, and analyze information on the
consumption patters of populations who principally rely on fish and/or
wildlife for subsistence.

## Executive Order 12962: Recreational Fisheries

E.O. 12962 requires federal agencies, in cooperation with states and
tribes, to improve the quantity, function, sustainable productivity, and
distribution of U.S. aquatic resources for increased recreational
fishing opportunities through a variety of methods including, but not
limited to, developing joint partnerships; promoting the restoration of
recreational fishing areas that are limited by water quality and habitat
degradation; fostering sound aquatic conservation and restoration
endeavors; and evaluating the effects of federally fended, permitted, or
authorized action on aquatic systems and recreational fisheries, and
documenting those effects. Additionally, the order establishes a seven
member National Recreational Fisheries Coordination Council responsible
for, among other things, ensuring that social and economic values of
healthy aquatic systems that support recreational fisheries are
considered by federal agencies in the course of their actions, sharing
the latest resource information and management technologies, and
reducing duplicative and cost-inefficient programs among federal
agencies involved in conserving or managing recreational fisheries. The
Council is also responsible for developing, in cooperation with federal
agencies, states and tribes, a Recreational Fishery Resource
Conservation Plan -- to include a five-year agenda. Finally, the Order
requires NOAA Fisheries Service and the U.S. Fish and Wildlife Service
to develop a joint agency policy for administering the ESA.

## Executive Order 13158: Marine Protected Areas

E.O. 13158 requires federal agencies to consider whether their proposed
action(s) will affect any area of the marine environment that has been
reserved by federal, state, territorial, tribal, or local laws or
regulations to provide lasting protection for part or all of the natural
or cultural resource within the protected area. This action would have
no impact on marine protected areas.

# OTHER CONSIDERATIONS

## National standards

The proposed action would repeal the Council Red Drum FMP and, thus, the
federal red drum regulations established under the authority of the
Magnuson-Stevens Act in accordance with its ten national standards and
other provisions. However, the federal red drum regulations would be
re-established under the authority of the Atlantic Coastal Act, which
requires restrictions be compatible with the effective implementation of
an interstate fishery management plan developed by the Atlantic States
Commission, and consistent with the Magnuson-Stevens Act's ten national
standards.

## State jurisdiction pertaining to the Atlantic Coastal Act

The proposed action would repeal the Council Red Drum FMP and transfer
Secretarial authority to regulate the harvest and possession of red drum
in federal waters of the U.S. Atlantic from the Magnuson-Stevens Act to
the Atlantic Coastal Act. The Atlantic States Commission is the only
regional entity that has authority over fisheries in all Atlantic Coast
state waters. Under the Atlantic Coastal Act, Atlantic Coast states must
take regulatory actions that implement and enforce the Commission's FMP.
The Secretary's primary responsibility under the Atlantic Coastal Act is
to promulgate and enforce in federal waters regulations that are
compatible with Commission's FMPs and to ensure their consistency with
the national standards for fishery conservation and management set forth
in the Magnuson-Stevens Act. Consequently, there should be no conflicts
between the proposed action and state and federal management agencies.

# LIST OF PREPARERS

Dr. Peter Eldridge, State-Federal Liaison Branch, NMFS, SERO, St.
Petersburg, FL.

Julie A. Weeder, Sustainable Fisheries Division, NMFS, SERO, St.
Petersburg, FL.

Kate Michie, Sustainable Fisheries Division, NMFS, SERO, St. Petersburg,
FL.

Dr. Denise Johnson, Sustainable Fisheries Division, NMFS, SERO, St.
Petersburg, FL.

Mr. David Keys, NEPA Coordinator, NMFS, SERO, St. Petersburg, FL.

Mr. Tom Meyer, State-Federal Division, NMFS Headquarters, Silver Spring,
MD.

# LIST OF AGENCIES AND ORGANIZATIONS CONSULTED

The following agencies were consulted on the provisions of this
environmental assessment:

## Coastal Zone Management Programs

New Jersey

Delaware

Pennsylvania

Maryland

Virginia

North Carolina

South Carolina

Georgia

Florida

## Other Agencies, Organizations or Persons

Atlantic States Marine Fisheries Commission

South Atlantic Fishery Management Council

Mid-Atlantic Fishery Management Council

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