[Federal Register Volume 72, Number 12 (Friday, January 19, 2007)]
[Rules and Regulations]
[Pages 2458-2462]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-231]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

RIN 0648-AT60
[Docket No.061020273-7001-03; I.D. 010307A]


Fisheries of the Northeastern United States; Summer Flounder 
Fishery; Emergency Rule

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

ACTION:  Temporary rule; emergency action; request for comments.

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SUMMARY:  NMFS is implementing, through this emergency rule, revised 
summer flounder total allowable landings (TAL) for the 2007 fishing 
year. This emergency rule specifies allowed harvest limits for both the 
commercial and recreational summer flounder fisheries. The TAL 
contained within this emergency rule supersedes the previous harvest 
limits for summer flounder that became effective on January 1, 2007. 
This action continues the prohibition on federally permitted commercial 
vessels landing summer flounder in Delaware in 2007 due to continued 
quota repayment of previous year's overages.
    This emergency rule is necessary to increase the 2007 summer 
flounder harvest levels consistent with the recently enacted Magnuson-
Stevens Fishery Conservation and Management Reauthorization Act of 2006 
(Reauthorized Magnuson-Stevens Act), while ensuring compliance with 
regulations implementing the Summer Flounder, Scup, and Black Sea Bass 
Fishery Management Plan (FMP). In addition, this action will continue 
to ensure that fishing mortality rates (F) or exploitation rates, as 
specified in the FMP, are not exceeded.

DATES:  Effective from January 19, 2007 through July 18, 2007. Comments 
must be received at the appropriate address or fax number (see 
ADDRESSES) by 5 p.m., local time, on February 20, 2007.

ADDRESSES:  Written comments should be submitted by any of the 
following methods:
    <bullet> Mail: Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. 
Mark the outside of the envelope, ``Comments on Summer Flounder 
Emergency Action.''
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#6132140c0c0413270d0e140f050413240c041306040f0218210f0e00004f060e17"><span class="__cf_email__" data-cfemail="d487a1b9b9b1a692b8bba1bab0b1a691b9b1a6b3b1bab7ad94babbb5b5fab3bba2">[email protected]</span></a>

[[Page 2459]]

    <bullet> Fax: (978) 281-9135
    <bullet> Electronically through the Federal e-Rulemaking portal: 
http//www.regulations.gov.
    Copies of the Supplemental Environmental Assessment are available 
from Patricia A. Kurkul, Regional Administrator, Northeast Region, 
National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 
01930-2298. This document is also accessible via the Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT:  Michael P. Ruccio, Fishery Policy 
Analyst, (978) 281-9104.

SUPPLEMENTARY INFORMATION: Summer flounder is currently under a 
rebuilding plan. NMFS published a final rule containing the 2007 summer 
flounder TAL on December 14, 2006 (71 FR 75134). The 12.983-million-lb 
(5,889-mt) TAL contained within that rule became effective on January 
1, 2007. The TAL implemented by that rule was a 45-percent decrease 
from the TAL specified for 2006.
    The 12.983-million-lb (5,889-mt) TAL was developed utilizing the 
best available scientific information. The regulations at 50 CFR 
648.100 require that NMFS implement measures (e.g., a TAL) necessary to 
ensure, with at least a 50-percent probability, that F<INF>max</INF> 
(i.e., level of fishing that produces maximum yield per recruit) will 
not be exceeded. The 12.983-million-lb (5,889-mt) TAL has greater than 
a 99-percent probability of not exceeding F<INF>max</INF>, the level at 
which overfishing is considered to be occurring. It also has an 
associated F level that will provide stock rebuilding within the 10-
year statutory period under section 304 of the Magnuson-Stevens Act 
prior to its December 2006 reauthorization. The F level calculated to 
rebuild the stock within the 10-year period is 
F<INF>rebuild</INF>=0.15; the 12.983-million-lb (5,889-mt) TAL has a 
75-percent probability of achieving this F<INF>rebuild</INF>.
    Since the publication of the 2007 summer flounder TAL in the 
Federal Register, the Reauthorized Magnuson-Stevens Act was signed into 
law on January 12, 2007. Contained within the Reauthorized Magnuson-
Stevens Act is a specific provision under section 120(a) that provides 
the Secretary the authority to extend the rebuilding time frame ending 
date for summer flounder to no later than January 1, 2013, provided 
that several specific conditions are met. The Secretary must determine 
that:
1. Overfishing is not occurring in the summer flounder fishery and that 
a mechanism is in place to ensure overfishing does not occur in the 
fishery and stock biomass levels are increasing;
    2. The biomass rebuilding target previously applicable to the 
summer flounder stock will be met or exceeded within the new time for 
rebuilding;
3. The extension period is based on the status and biology of the stock 
and the rate of rebuilding;
4. Monitoring will ensure rebuilding continues;
5. The extension meets the requirements of National Standard 1 found at 
section 301(a)(1) of the Magnuson-Stevens Act; and
6. The best scientific information available shows that the extension 
will allow continued rebuilding.
    The Secretary has determined that these six criteria have been met 
and that there is a reasonable basis to extend the summer flounder 
rebuilding time frame to no later than January 1, 2013. A detailed 
discussion of the Secretarial determinations occurs later in this 
preamble, under Secretarial Determinations Required by Section 120(a) 
of the Reauthorized Magnuson-Stevens Act. Based on these 
determinations, the Secretary is implementing, through this emergency 
rule, a 17.112-million-lb (7,762-mt) TAL, based on the revised 
rebuilding time frame ending no later than January 1, 2013, which 
supersedes the previous TAL of 12.983 million lb (5,889 mt), which was 
based on a rebuilding period end date of January 1, 2010. The 17.112-
million-lb (7,762-mt) TAL will be allocated 10.27 million lb (4,658 mt) 
to the commercial sector and 6.84 million lb (3,104 mt) to the 
recreational sector.
    This emergency rule does not alter the previous amount of summer 
flounder set aside for research in the December 14, 2006, final rule. 
The research set-aside (RSA) level is not being increased by this 
emergency rule in order to ensure that the issuance of grants and 
exempted fishing permits required to conduct the research projects 
occurs in a timely fashion. Four research projects that would utilize 
the previously established summer flounder RSA of 389,490 lb (177 mt) 
have been conditionally approved by NMFS and are currently awaiting 
notice of award. If a project is not approved by the NOAA Grants 
Office, the research quota associated with the disapproved proposal 
will be restored to the summer flounder TAL through publication of a 
notice in the Federal Register.
    Consistent with the revised quota setting procedures for the FMP at 
Sec.  648.100(a)(1)(ii), summer flounder overages are determined based 
upon landings for the 2005 calendar year that were not accounted for in 
the 2006 final rule (70 FR 77060, December 29, 2005), and any 2006 
fishing year overages through October 31, 2006. Table 1 summarizes for 
each state, based on the TAL implemented though this emergency rule, 
the commercial summer flounder percent share, the 2007 commercial quota 
(both initial and less the RSA), the quota reductions from overages as 
previously described, the resulting adjusted 2007 commercial quota, and 
the increase in quota from the December 14, 2006, final rule resulting 
from this emergency rule. Recreational harvest limits, based on the TAL 
implemented by this emergency rule, will be the subject of a separate 
rulemaking within the first quarter of 2007.

[[Page 2460]]



                                                                         COMMERCIAL SUMMER FLOUNDER ALLOCATIONS FOR 2007
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                               Percent Share          Initial Quota            Initial Quota, Less RSA     Quota Overages (through 10/   Adjusted Quota less RSA\2\      Change in Quota from
---------------------------------------------------------------------------------------------------------           31/06)\1\          ------------------------------  Dec.14, 2006, Final Rule
                                                                                                         ------------------------------                                   to Emergency Action
            State                                   lb             kg             lb             kg                                           lb             kg      ---------------------------
                                                                                                                lb             kg                                          lb            kg
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ME                             0.04756        4,883          2,215          4,772          2,165          0              0              4,772          2,165          1,178         534
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NH                             0.00046        47             21             46             21             0              0              46             21             11            5
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MA                             6.82046        700,270        317,643        684,331        310,413        30,046         13,629         654,285        296,784        168,970       76,645
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RI                             15.68298       1,610,203      730,388        1,573,553      713,764        0              0              1,573,553      713,764        388,530       176,237
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CT                             2.25708        231,739        105,117        226,464        102,724        16,470         7,471          209,994        95,253         55,917        25,364
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NY                             7.64599        785,029        356,089        767,161        347,984        148,038        67,150         619,123        280,834        197,346       89,516
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NJ                             16.72499       1,717,188      778,917        1,678,103      761,187        0              0              1,678,103      761,187        414,345       187,947
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DE                             0.01779        1,827          829            1,785          810            50,528         22,920         -48,743        -22,110        441           200
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MD                             2.03910        209,358        94,965         204,593        92,803         0              0              204,593        92,803         50,516        22,914
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VA                             21.31676       2,188,634      992,765        2,138,818      970,168        0              0              2,138,818      970,168        528,101       239,547
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NC                             27.44584       2,817,919      1,278,208      2,753,780      1,249,115      0              0              2,753,780      1,249,115      679,943       308,422
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Total\3\                       100.00         10,267,098     4,657,156      10,033,407     4,551,153      245,082        111,169        9,788,325      4,439,984      2,485,299     1,127,331
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\1\ 2006 quota overage is determined through comparison of landings for January through October 2006 plus any landings in 2005 in excess of the 2005 quota that were not previously addressed in
  the 2006 quota specifications, with the final 2006 quota for each state as published in the December 29, 2006 final rule (70 FR 77060).
\2\ Negative numbers indicate a state allocation in quota repayment status from previous year's overages.
\3\ Total quota is the sum of all states having allocation. A state with a negative number has an allocation of zero (0). Kilograms are as converted from pounds and may not necessarily add due
  to rounding.


[[Page 2461]]

     The Atlantic States Marine Fisheries Commission (Commission) has 
established a system whereby 15 percent of each state's quota may be 
voluntarily set aside each year to enable vessels to land an incidental 
catch allowance after the directed fishery in a state has been closed. 
The intent of the incidental catch set-aside is to reduce discards by 
allowing fishermen to land summer flounder caught incidentally in other 
fisheries during the year, while ensuring that the state's overall 
quota is not exceeded. These Commission set-asides are not included in 
these 2007 final summer flounder specifications because NMFS does not 
have authority to establish such subcategories.

Delaware Summer Flounder Closure

    Table 1 indicates that, for Delaware, the amount of the 2006 summer 
flounder quota overage (inclusive of overharvest from previous years) 
is greater than the amount of commercial quota allocated to Delaware 
for 2007 under this emergency action. As a result, there is no quota 
available for 2007 in Delaware. The regulations at Sec.  648.4(b) 
provide that Federal permit holders, as a condition of their permit, 
may not land summer flounder in any state that the Regional 
Administrator has determined no longer has commercial quota available 
for harvest. Therefore, landings of summer flounder in Delaware by 
vessels holding commercial Federal summer flounder fisheries permits 
are prohibited for the duration of this emergency rule, unless 
additional quota becomes available through a quota transfer and is 
announced in the Federal Register. Federally permitted dealers are 
advised that they may not purchase summer flounder from federally 
permitted vessels that land in Delaware for the duration of this 
emergency rule, unless additional quota becomes available through a 
transfer.

Secretarial Determinations Required by Section 120(a) of the 
Reauthorized Magnuson-Stevens Act

    Overfishing is not occurring and a mechanism is in place to ensure 
that overfishing does not occur. The Secretary has determined that, as 
of January 1, 2007, overfishing was not occurring in the summer 
flounder fishery. The TAL of 12.983 million lb (5,889 mt) was effective 
January 1, 2007, and has greater than a 99-percent probability of not 
exceeding the overfishing threshold of F (F<INF>max</INF>= 0.28). The 
17.112-million-lb (7,762-mt) TAL implemented by this emergency rule has 
a 75-percent probability of achieving the new F level (F<INF>rebuild</INF> 
=0.203) calculated for stock rebuilding by January 1, 2013. The 17.112-
million-lb (7,762-mt) TAL has a 99-percent probability of not exceeding 
the 2007 F<INF>max</INF> threshold (0.28). The 17.112-million-lb 
(7,762-mt) TAL and associated commercial and recreational management 
measures will effectively ensure that overfishing does not occur in the 
summer flounder fishery in 2007.
    Stock biomass levels are increasing. Based on information in the 
peer reviewed ``Summer Flounder Assessment and Biological Reference 
Point Update for 2006,'' the best available scientific information for 
the summer flounder stock, the stock biomass level has continued to 
increase during the first 7 years of the rebuilding period. The updated 
2006 assessment indicates that stock biomass levels are increasing, 
though stock growth has slowed. Spawning stock biomass (SSB; age 0+ 
fish) declined 69 percent from 1983 to 1989 (22,582 mt to 7,025 mt) 
but, with improved recruitment and decreased fishing mortality, had 
increased to 47,498 mt by 2005. Recruitment since 1988 has been 
estimated to have generally improved, although the 2003 and 2005 year 
classes were estimated to have been well below the median (33 million 
fish) at 24.5 million fish and 14.5 million fish, respectively.
    The biomass target previously applied will be met or exceeded 
within the new rebuilding time frame. Analysis conducted by the 
Northeast Fisheries Science Center (Center) indicates that fishing at a 
17.112-million-lb (7,762-mt) TAL in 2007 will have a 75-percent 
probability of attaining the F target (F<INF>rebuild</INF>) necessary 
to ensure that the rebuilding target (B<INF>msy</INF> proxy) of 197 
million lb (89,359 mt) SSB is attained by January 1, 2013.
    The rebuilding extension period is based on the status and biology 
of the stock and rate of rebuilding. The information on the status and 
biology of the stock has been used, through the annual assessment, to 
derive an appropriate F target and subsequent quota for 2007 that is 
sufficient to ensure rebuilding occurs by January 1, 2013. Center 
analysis indicates that attaining the F<INF>rebuild</INF> target in 
2007 will ensure that the stock rebuilding rate will remain on target 
to rebuild by January 1, 2013.
    Monitoring will ensure that rebuilding continues. The summer 
flounder stock is assessed annually by the Southern Demersal Working 
Group, using the latest research survey and fisheries catch data. 
During this assessment, the working group will assess the status of the 
stock and recommend to the Council an appropriate F target and TAL to 
satisfy the requirements of the FMP and the Reauthorized Magnuson-
Stevens Act rebuilding requirements. Annual adjustments may be made by 
the Council and/or the Secretary to the 2008-2012 TALs to ensure that 
rebuilding continues within the specified time frame.
    The extension meets the requirement of section 301(a)(1) (National 
Standard 1) of the Reauthorized Magnuson-Stevens Act. The Secretary has 
determined that setting an appropriate TAL with a sufficient 
probability of attaining the F needed to ensure rebuilding of the 
summer flounder stock by January 1, 2013, is consistent with National 
Standard 1. Such measures will prevent overfishing and provide the 
optimum yield while so doing.
    The best scientific information available shows that the extension 
will allow continued rebuilding. The methodology employed in the 
Center's projections and derivation of the subsequent 17.112-million-lb 
(7,762-mt) TAL was recommended by the NMFS Office of Science and 
Technology Peer Review Panel and, as such, constitutes the best 
available scientific information. These methods had been used to derive 
the 12.983-million-lb (5,889-mt) TAL in place under the former 
rebuilding time frame of 10 years. These methods project the summer 
flounder stock will be rebuilt to the B<INF>msy</INF> proxy SSB level 
of 197 million lb (89,359 mt) by January 1, 2013, by employing a 
constant F strategy at the F<INF>rebuild</INF>=0.203 level in 2007 and 
in subsequent years of the rebuilding period.

Classification

    The Assistant Administrator for Fisheries NOAA, (AA) finds good 
cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the 
opportunity for public comment because it would be impracticable and 
contrary to the public interest.
    This emergency action responds to a recently enacted 
reauthorization and amendment of the Magnuson-Stevens Fishery Act. 
Section 120 of the Reauthorized Magnuson-Stevens Act extends the 
rebuilding period for the summer flounder fishery from January 1, 2010, 
until no later than January 1, 2013. This extension allows for the 
setting of a higher TAL than was previously set to rebuild the fishery 
by the earlier rebuilding deadline. Consequently, this emergency action 
supersedes the 2007 annual TAL specification for summer flounder 
published on December 14, 2006, with a higher TAL. The measure 
contained

[[Page 2462]]

within this emergency rule meets the fishing mortality objectives of 
the FMP and satisfies section 120(a) of the Reauthorized Magnuson-
Stevens Act.
    Until this rule is effective, states and commercial fishermen are 
held to the quotas published on December 14, 2006. As a result of the 
Reauthorized Magnuson-Stevens Act, the quotas published on December 14, 
2006, are rendered unnecessarily restrictive and are substantially less 
than the quotas available under the increased TAL. If effectiveness of 
the rule is delayed, state quotas and subsequent management measures 
designed to attain the quotas derived from the lower TAL would be 
inconsistent with the increased TAL available from the revised 
rebuilding period. Waiver of the notice-and-comment rulemaking period 
will serve the public by allowing states to implement commercial quotas 
and management measures afforded under the increased TAL in a timely 
fashion for the 2007 fisheries that began on January 1, 2007. States in 
the southern reaches of the Northeast Region have very active 
commercial fisheries that begin in January of each year while more 
northern states have need of establishing their annual management 
measures early within the new year so that fishery participants may 
plan first quarter fishing activities. The time required by NMFS to 
conduct notice-and-comment rulemaking for this emergency rule would 
require states to establish management measures for up to several 
months based on the lower TAL in place as of January 1, 2007. State 
management measures would likely require more restrictive possession 
and trip limits that increase the potential for discards and the 
likelihood that TALs may be attained and fisheries to be closed before 
additional quota is made available by this emergency rule.
    In addition, state agencies are currently developing and preparing 
conservation equivalency proposals for the 2007 recreational fishery to 
be submitted to the Atlantic States Marine Fisheries Commission during 
their January 29, 2007, meeting. Recreational fisheries do not begin in 
earnest until spring and NMFS anticipates publishing a final rule for 
2007 recreational measures in March 2007. A delay of this emergency 
rule by notice-and-comment rulemaking would require states to craft 
conservation equivalency measures that meet the objectives of the lower 
TAL. Such measures would be inconsistent with the objectives of the 
increased TAL and would be unnecessarily more restrictive, requiring 
further revision after this rule becomes effective. Additional 
rulemaking would be required to implement less restrictive measures 
that meet the objectives of the higher TAL.
    NMFS did not initiate the emergency action earlier because 
provision of the Reauthorized Magnuson-Stevens Act that allows an 
extension of the summer founder rebuilding period and the subsequent 
increase in 2007 TAL was not signed into law by the President until 
January 12, 2007. The revised TAL is within the range of quota 
alternatives considered and analyzed by the Council, and discussed in 
the proposed rule that published on October 27, 2006, with a 21-day 
comment period. NMFS intends to provide a 30-day post-promulgation 
comment period following the implementation of this emergency rule.
    Waiver of this delay will allow state promulgated commercial 
management measures to be applied within days of the start of the 2007 
fishing season and for recreational management measures to be proposed 
to meet the objectives contained within the higher TAL. These state 
measures will be consistent with the publicly and Congressionally 
expected increase in TAL resulting from the extended rebuilding time 
frame authorized in section 120(a) of the Reauthorized Magnuson-Stevens 
Act.
    For the same reasons, the Assistant Administrator for Fisheries, 
NOAA, finds good cause pursuant to 5 U.S.C 553(d)(3) to make this rule 
effective immediately, thereby waiving the 30-day delayed effective 
date required by 5 U.S.C. 553(d).
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is not subject to the requirement to 
provide prior notice and opportunity for public comment pursuant to 5 
USC 553 or any other law.

    Dated: January 17, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 07-231 Filed 1-17-07; 1:10 pm]
BILLING CODE 3510-22-S


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