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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]
 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
 ACTION: Temporary rule; emergency action; request for comments.
 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: *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.”
                    *E-mail:*SummerFlounderEmergency@noaa.gov
                    ( print page 2459)
                    *Fax:*
                         (978) 281-9135
                    *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
                    max
                     (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
                    max
                    , 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
                    rebuild
                    =0.15; the 12.983-million-lb (5,889-mt) TAL has a 75-percent probability of achieving this F
                    rebuild
                    . 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 § 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. 
 
 COMMERCIAL SUMMER FLOUNDER ALLOCATIONS FOR 2007
Percent Share
Initial Quota
Initial Quota, Less RSA
Quota Overages (through 10/31/06)1
Adjusted Quota less RSA2
Change in Quota from Dec.14, 2006, Final Rule to Emergency ActionState

lb
kg
lb
kg
lb
kg
lb
kg
lb
kgME
0.04756
4,883
2,215
4,772
2,165
0
0
4,772
2,165
1,178
534NH
0.00046
47
21
46
21
0
0
46
21
11
5MA
6.82046
700,270
317,643
684,331
310,413
30,046
13,629
654,285
296,784
168,970
76,645RI
15.68298
1,610,203
730,388
1,573,553
713,764
0
0
1,573,553
713,764
388,530
176,237CT
2.25708
231,739
105,117
226,464
102,724
16,470
7,471
209,994
95,253
55,917
25,364NY
7.64599
785,029
356,089
767,161
347,984
148,038
67,150
619,123
280,834
197,346
89,516NJ
16.72499
1,717,188
778,917
1,678,103
761,187
0
0
1,678,103
761,187
414,345
187,947DE
0.01779
1,827
829
1,785
810
50,528
22,920
-48,743
-22,110
441
200MD
2.03910
209,358
94,965
204,593
92,803
0
0
204,593
92,803
50,516
22,914VA
21.31676
2,188,634
992,765
2,138,818
970,168
0
0
2,138,818
970,168
528,101
239,547NC
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**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
1,127,3311
                         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.
 
 
 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 § 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
                    max
                    = 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
                    rebuild
                     =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
                    max
                     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
                    rebuild
                    ) necessary to ensure that the rebuilding target (B
                    msy
                     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
                    rebuild
                     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
                    msy
                     proxy SSB level of 197 million lb (89,359 mt) by January 1, 2013, by employing a constant F strategy at the F
                    rebuild
                    =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 
                    ( print 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