Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 58059 

Thus, such a vessel may only have a 

commercial quantity of reef fish other 

than deepwater grouper or tilefishes or 

a recreational bag limit of Gulf reef fish. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA, 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such prior notice 

and opportunity for public comment is 

unnecessary. Prior notice and 

opportunity for public comment on the 

reopening is unnecessary because the 

rule establishing the annual quota has 

already been subject to notice and 

comment, and all that remains is the 

annual administrative act of notifying 

the public of where harvest stands in 

relation to the quota, and in this case 

that additional time is needed to harvest 

the established quota. The rule contains 

a routine determination relative to 

harvest levels for the fishing year that 

are relatively insignificant in nature and 

impact to the industry and to the public 

as a whole. 

For the aforementioned reasons, the 

AA also finds good cause to waive the 

30-day delay in the effectiveness of this 

action under 5 U.S.C. 553(d)(3). 

This action is taken under 50 CFR 

622.43(a) and is exempt from review 

under Executive Order 12866. 

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

Dated: September 29, 2008. 

Alan D. Risenhoover, 

Director, Office of Sustainable Fisheries, 

National Marine Fisheries Service. 

[FR Doc. E8–23582 Filed 10–3–08; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 622 and 697 

[Docket No. 080221249–81231–02] 

RIN 0648–AT13 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Atlantic 

Coastal Fisheries Cooperative 

Management Act Provisions; Atlantic 

Coast Red Drum Fishery off the 

Atlantic States; Transfer of 

Management Authority 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues this final rule to 

repeal the Atlantic Coast Red Drum 

Fishery Management Plan (FMP) and to 

transfer the management authority of 

Atlantic red drum in the exclusive 

economic zone (EEZ) from the South 

Atlantic Fishery Management Council 

(South Atlantic Council), in cooperation 

with the Mid-Atlantic Fishery 

Management Council (Mid-Atlantic 

Council), under the Magnuson-Stevens 

Conservation and Management Act 

(Magnuson-Stevens Act) to the Atlantic 

States Marine Fisheries Commission 

(Commission) under the Atlantic 

Coastal Fisheries Cooperative 

Management Act (Atlantic Coastal Act), 

as requested by the Councils and the 

Commission. The intent of this final 

rule is to enhance the effectiveness and 

efficiency of managing Atlantic red 

drum. 

DATES: This final rule is effective 

November 5, 2008. 

ADDRESSES: Copies of the environmental 

assessment (EA), which describes the 

impacts of the transfer of management 

authority, may be obtained from Kate 

Michie, NMFS, Southeast Regional 

Office, 263 13th Avenue South, St. 

Petersburg, FL 33701; telephone 727– 

824–5305; fax 727–824–5308. 

FOR FURTHER INFORMATION CONTACT: Kate 

Michie, telephone: 727–824–5305. 

SUPPLEMENTARY INFORMATION: The 

Atlantic red drum fishery off the South 

Atlantic and Mid-Atlantic coastal states 

is currently managed under two 

separate FMPs. Atlantic red drum 

located in the EEZ are managed under 

the Atlantic Coast Red Drum FMP 

prepared by the South Atlantic Council, 

in cooperation with the Mid-Atlantic 

Council (Council FMP), and 

implemented under the authority of the 

Magnuson-Stevens Act by regulations at 

50 CFR part 622. The Council FMP 

prohibits harvest or possession of red 

drum in the South Atlantic and MidAtlantic EEZ. Atlantic red drum located 

in state waters are managed under the 

Interstate Fishery Management Plan 

(ISFMP) for Red Drum by the Atlantic 

coast states (New Jersey through 

Florida) and the Commission. This final 

rule repeals the Council FMP and 

implementing regulations issued under 

the Magnuson-Stevens Act and 

simultaneously replaces them with 

substantially identical regulations under 

the Atlantic Coastal Act. The Atlantic 

Coastal Act allows the Federal 

government to better coordinate its 

management practices with the states 

via the Commission process. The repeal 

of the Council FMP would occur at the 

same time as this rule is implemented. 

On April 3, 2008, NMFS published a 

proposed rule for the transfer of 

management authority of Atlantic red 

drum and requested public comment 

(73 FR 18253). The rationale for this 

action, including the statute giving 

authority to the Commission to manage 

Atlantic red drum in the EEZ, the 

purpose and need for transfer of 

management authority, and the benefits 

of this transfer are included in the 

preamble to the proposed rule and are 

not repeated here. 

Comments and Responses 

The following is a summary of the 

comments NMFS received on the 

proposed rule and NMFS’ responses. 

Three comments were received on this 

action. One comment was in favor of the 

transfer of management authority, one 

comment was opposed to the transfer of 

authority, and one comment was in 

favor of the transfer of authority but did 

not agree that regulations under the 

Atlantic Coastal Act are comparable to 

the current Magnuson-Stevens Act 

regulations. 

Comment 1: The first commenter 

stated the transfer of authority will 

result in more efficient and effective 

management for Atlantic red drum. 

Response: The purpose of this action 

is to manage Atlantic red drum under 

one FMP rather than two, thus 

minimizing management costs and 

eliminating unnecessary duplication of 

management efforts. This transfer of 

management authority furthers 

Magnuson-Stevens Act national 

standard 7, which states ‘‘Conservation 

and management measures shall, where 

practicable, minimize costs and avoid 

unnecessary duplication.’’ 

Comment 2: The second commenter 

stated the changes being proposed are 

anti-environmental in nature, and 

NMFS in particular is biased toward 

‘‘fish profiteers.’’ 

Response: This rule will not change 

existing restrictions prohibiting the 

harvest or possession of red drum in the 

EEZ. NMFS and the U.S. Coast Guard 

will continue to enforce those 

prohibitions. Repealing the Council 

FMP under the Magnuson-Stevens Act 

and simultaneously implementing 

comparable regulations under the 

Commission FMP under the Atlantic 

Coastal Act, will provide for a more 

efficient and timely rebuilding of the 

Atlantic red drum resource. 

Comment 3: One commenter stated 

the regulations under the Atlantic 

Coastal Act intended to replace those 

under the Magnuson-Stevens Act are 

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58060 Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 

not comparable, and the EA does not 

acknowledge some of the essential fish 

habitat (EFH) designated for red drum 

will be eliminated, nor does it mention 

the loss of habitat areas of particular 

concern (HAPC). 

Response: NMFS does not believe that 

adoption of this rule will result in an 

appreciable loss of habitat protection for 

red drum. 

As a preliminary matter, red drum 

EFH, including habitat areas of 

particular concern, substantially 

overlaps the EFH of other species. 

Accordingly, even if red drum EFH 

designations are necessarily withdrawn 

in the transfer, NMFS would still likely 

recommend the same protective 

measures through its EFH consultations 

on other species. In other words, 

although red drum habitat protections 

would be incidental to EFH 

consultations on other species, red 

drum habitat would nevertheless still be 

protected. For example, the South 

Atlantic Coastal Migratory Pelagics FMP 

(CMP FMP) includes EFH areas that 

overlap areas previously designated as 

EFH for red drum, namely, barrier 

island ocean-side waters from the surf to 

the shelf break zone, all coastal inlets, 

and all state-designated nursery habitats 

of particular importance to coastal 

migratory pelagics. Under the CMP FMP 

the surf zone is not referred to as a 

‘‘high-salinity’’ surf zone as it is in the 

red drum EFH description; however, the 

same meaning for each is inferred. 

Additionally, the South Atlantic Shrimp 

FMP (Shrimp FMP) does use the term 

‘‘tidal freshwater’’ in its designation of 

EFH for penaeid shrimp. The Shrimp 

FMP includes inshore nursery areas in 

its designation of EFH for penaeid 

shrimp and defines this habitat as tidal 

freshwater, estuarine, and marine 

emergent wetlands (e.g., intertidal 

marshes); tidal palustrine forested areas; 

mangroves, tidal freshwater, estuarine, 

and submerged aquatic vegetation (SAV) 

(e.g., seagrass); and subtidal and 

intertidal non-vegetated flats. This 

designation of EFH for penaeid shrimp 

applies from North Carolina through the 

Florida Keys. 

Further, to the extent that protection 

is lost under the Magnuson-Stevens Act 

in the transfer, NMFS believes that such 

loss is mitigated by comparable 

protections that would remain under 

other statutes. Specifically, the Fish and 

Wildlife Coordination Act, similar to the 

Magnuson-Stevens Act, requires Federal 

agencies to first consult with NMFS 

before taking an action that might 

impact NMFS trust resources. The Fish 

and Wildlife Coordination Act requires 

that the Federal agency ‘‘...shall consult 

with...the head of the agency exercising 

administration over the wildlife 

resources...with a view to the 

conservation of wildlife resources by 

preventing loss of and damage to such 

resources...’’ Further, the Fish and 

Wildlife Coordination Act allows the 

Secretary to make recommendations to 

the Federal agency on alternative 

‘‘...means and measures that should be 

adopted to prevent the loss of or damage 

to such wildlife resources...’’ (16 U.S.C. 

661–667e). Accordingly, although EFH 

is a technical term unique to the 

Magnuson-Stevens Act and EFH 

consultation is a process reserved to 

species managed under the MagnusonStevens Act, it does not necessarily 

follow that comparable habitat 

protection would be altogether lost if 

red drum were managed under an 

alternative statute. Federal agencies 

would still be required to consult with 

NMFS on the potential impacts of their 

actions to red drum habitat, but simply 

under a different statute. 

Comment 4: One of the above 

commenters also stated that the EA does 

not discuss Executive Order (E.O.) 

13449, (72 FR 60531, October 24, 2007), 

regarding the protection of striped bass 

and red drum, and the rule would not 

establish consistent EFH consultation 

requirements between red drum stocks 

of the Gulf of Mexico and Atlantic. 

Response: The commenter is 

concerned this rule will establish 

inconsistent regulations between the red 

drum stocks of the Gulf of Mexico and 

the Atlantic. Gulf of Mexico red drum 

stocks are already managed 

independently of the Atlantic red drum 

stocks. The ability of the NMFS to 

consult and provide consistent 

recommendations for the conservation 

and preservation of habitats utilized by 

red drum under the Fish and Wildlife 

Coordination Act will not change. 

Additionally, because NMFS will 

continue to consult and provide 

conservation recommendations for EFH 

of all other Council-managed species, 

the ability to consistently protect and 

conserve fishery habitats, including all 

habitats utilized by red drum, will not 

be significantly changed. 

NMFS understands this rule to be 

consistent with the spirit and intent of 

E.O. 13449, because comparable EFH 

protections for Atlantic red drum will 

be maintained under previously noted 

FMPs for Council-managed species, and 

comparable fishery management 

regulations under the Atlantic Coastal 

Act will take the place of current 

regulations under the MagnusonStevens Act, and because comparable 

habitat consultation will occur under 

the Fish and Wildlife Coordination Act. 

Furthermore, the Atlantic Coastal Act 

clearly includes habitat conservation 

among its intended goals with regards to 

state-federal cooperation by stating: 

‘‘The Secretary in cooperation with the 

Secretary of the Interior shall develop 

and implement a program to support the 

interstate fishery management efforts of 

the Commission. The program shall 

include activities to support and 

enhance State cooperation in collection, 

management, and analysis of fishery 

data; law enforcement, habitat 

conservation; fishery research, 

including biological and socioeconomic 

research; and fishery management 

planning’’ (16 U.S.C. 5103). 

Classification 

The Administrator, Southeast Region, 

NMFS, determined that the transfer of 

management authority is necessary for 

the conservation and management of the 

Atlantic red drum fishery and that it is 

consistent with the Magnuson-Stevens 

Act and other applicable laws. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration during 

the proposed rule stage that this action 

would not have a significant economic 

impact on a substantial number of small 

entities. The factual basis for the 

certification was published in the 

proposed rule and is not repeated here. 

No comments were received regarding 

this certification. As a result, a 

regulatory flexibility analysis was not 

required, and none was prepared. 

List of Subjects 

50 CFR Part 622 

Fisheries, Fishing, Puerto Rico, 

Reporting and recordkeeping 

requirements, Virgin Islands. 

50 CFR Part 697 

Fisheries, Fishing. 

Dated: September 30, 2008. 

Samuel D. Rauch III, 

Deputy Assistant Administrator For 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For the reasons set out in the 

preamble, 50 CFR parts 622 and 697, are 

amended as follows: 

PART 622—FISHERIES OF THE 

CARIBBEAN, GULF, AND SOUTH 

ATLANTIC 

■ 1. The authority citation for part 622 

continues to read as follows: 

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

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Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 58061 

§ 622.1 [Amended] 

■ 2. In § 622.1, Table 1, the entries for 

‘‘Atlantic Coast Red Drum FMP’’ are 

removed. 

§ 622.32 [Amended] 

■ 3. In § 622.32, remove paragraph 

(b)(3), and redesignate paragraph (b)(4) 

as paragraph (b)(3); remove newly 

redesignated paragraph (b)(3)(iii), and 

redesignate newly redesignated 

paragraphs (b)(3)(iv) through (vi) as 

paragraphs (b)(3)(iii) through (v). 

§ 622.48 [Amended] 

■ 4. In § 622.48, remove paragraph (k), 

and redesignate paragraphs (l) and (m) 

as paragraphs (k) and (l), respectively. 

PART 697—ATLANTIC COASTAL 

FISHERIES COOPERATIVE 

MANAGEMENT 

■ 5. The authority citation for part 697 

continues to read as follows: 

Authority: 16 U.S.C. 5101 et seq. 

■ 6. In § 697.2, the definition of 

‘‘Atlantic red drum’’ is added and the 

definition of ‘‘Regional Administrator’’ 

is revised, in alphabetical order, to read 

as follows: 

§ 697.2 Definitions. 

* * * * * 

Atlantic red drum, also called redfish, 

means Sciaenops ocellatus, or a part 

thereof, found in the waters of the 

Atlantic Ocean off the Atlantic coastal 

states, to the outer boundary of the EEZ, 

as specified in § 600.10 of this chapter, 

from the boundary of the United States 

and Canada, to the boundary between 

the South Atlantic Fishery Management 

Council and the Gulf of Mexico Fishery 

Management Council, as specified in 

§ 600.105(c) of this chapter. 

* * * * * 

Regional Administrator, means 

Regional Administrator, Northeast 

Region, NMFS, or Regional 

Administrator, Southeast Region, 

NMFS, whichever has the applicable 

jurisdiction, or a respective designee. 

* * * * * 

■ 7. In § 697.7, paragraph (f) is added to 

read as follows: 

§ 697.7 Prohibitions. 

* * * * * 

(f) Atlantic red drum fishery. In 

addition to the prohibitions set forth in 

§ 600.725 of this chapter, it is unlawful 

for any person to do any of the 

following: 

(1) Harvest or possess Atlantic red 

drum in the EEZ south of a line 

extending in a direction of 115° from 

true north commencing at a point at 

40°29.6′ N. lat., 73°54.1′ W. long., such 

point being the intersection of the New 

Jersey/New York boundary with the 3– 

nm line denoting the seaward limit of 

state waters, and north of the 

demarcation line between the South 

Atlantic Fishery Management Council 

and the Gulf of Mexico Fishery 

Management Council described in 

§ 600.105(c) of this chapter. 

(2) Fail to release immediately 

without further harm, all Atlantic red 

drum caught in the EEZ area described 

in paragraph (f)(1) of this section. 

■ 8. In § 697.22, the introductory text 

and paragraph (a)(1) are revised to read 

as follows: 

§ 697.22 Exempted fishing. 

The Regional Administrator or 

Director may exempt any person or 

vessel from the requirements of this part 

for the conduct of exempted fishing 

beneficial to the management of the 

American lobster, weakfish, Atlantic red 

drum, Atlantic striped bass, Atlantic 

sturgeon, or horseshoe crab resource or 

fishery, pursuant to the provisions of 

§ 600.745 of this chapter. 

(a) * * * 

(1) Have a detrimental effect on the 

American lobster, weakfish, Atlantic red 

drum, Atlantic striped bass, Atlantic 

sturgeon, or horseshoe crab resource or 

fishery; or 

* * * * * 

[FR Doc. E8–23586 Filed 10–3–08; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 071106671–8010–02] 

RIN 0648–XK86 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Cod by 

Vessels Catching Pacific Cod for 

Processing by the Inshore Component 

in the Central Regulatory Area of the 

Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for Pacific cod by vessels 

catching Pacific cod for processing by 

the inshore component in the Central 

Regulatory Area of the Gulf of Alaska 

(GOA). This action is necessary to 

prevent exceeding the 2008 total 

allowable catch (TAC) of Pacific cod 

allocated to vessels catching Pacific cod 

for processing by the inshore 

component of the Central Regulatory 

Area of the GOA. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), October 3, 2008, until 2400 

hrs, A.l.t., December 31, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Obren Davis, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the Magnuson– 

Stevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679. 

The 2008 TAC of Pacific cod allocated 

to vessels catching Pacific cod for 

processing by the inshore component of 

the Central Regulatory Area of the GOA 

is 25,583 metric tons (mt) as established 

by the 2008 and 2009 harvest 

specifications for groundfish of the GOA 

(73 FR 10562, February 27, 2008). 

In accordance with § 679.20(d)(1)(i), 

the Administrator, Alaska Region, 

NMFS (Regional Administrator), has 

determined that the 2008 TAC of Pacific 

cod allocated to vessels catching Pacific 

cod for processing by the inshore 

component of the Central Regulatory 

Area of the GOA will soon be reached. 

Therefore, the Regional Administrator is 

establishing a directed fishing 

allowance of 24,583 mt, and is setting 

aside the remaining 1,000 mt as bycatch 

to support other anticipated groundfish 

fisheries. In accordance with 

§ 679.20(d)(1)(iii), the Regional 

Administrator finds that this directed 

fishing allowance has been reached. 

Consequently, NMFS is prohibiting 

directed fishing for Pacific cod by 

vessels catching Pacific cod for 

processing by the inshore component in 

the Central Regulatory Area of the GOA. 

After the effective date of this closure 

the maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

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