Fisheries of the Northeastern United States; Recreational Management Measures for the Summer Flounder Fishery; Fishing Year 2008, 55166-55169 [E7-19133]
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55166
Federal Register / Vol. 72, No. 188 / Friday, September 28, 2007 / Proposed Rules
(2) Non-State government operated
facilities (that is, all governmentally
operated facilities that are not operated
by the State) as defined at § 433.50(a) of
this chapter.
(3) Privately operated facilities that is,
all facilities that are not operated by a
unit of government as defined at
§ 433.50(a) of this chapter.
(b) General rules. (1) For privately
operated facilities, upper Payment Limit
(UPL) refers to a reasonable estimate of
the amount that would be paid for the
services furnished by the group of
facilities under Medicare payment
principles in subchapter B of this
chapter.
(i) Private Outpatient Hospital
Services. Services included in the
calculation of the private outpatient
hospital UPL must meet all of the
criteria for outpatient hospital services
defined in § 440.20 of this chapter. A
reasonable estimate of the amount that
would be paid for outpatient hospital
services under Medicare payment
principles is determined through—
(A) Calculation of estimated Medicare
payment for Medicaid equivalent
outpatient services reimbursed under
current Medicare payment systems,
including—
(1) Outpatient hospital services paid
under the Medicare outpatient
prospective payment system as defined
under § 419.2 of this chapter; and
(2) Outpatient hospital services or
clinic services paid under a Medicare
outpatient hospital or clinic fee
schedule or alternate payment
methodology.
(B) The estimated Medicare payment
may be based on the Medicare cost
report, or an accepted State cost report
that reports the same data from the
Medicare cost report references in
paragraphs (b)(1)(i)(B)(1) through
(b)(1)(i)(B)(2) of this section, as the
source to determine either:
(1) The ratio of costs-to-charges for all
services included in the outpatient
hospital UPL calculation. The Medicare
cost-to-charges ratios for outpatient
hospital services are found on
Worksheet C and Worksheet D, Part V
of the Medicare cost report; or
(2) The ratio of payments-to-charges
for all services included in the
outpatient hospital UPL calculation.
Medicare outpatient payments are found
on Worksheet E, Part B and outpatient
charges are found on Worksheet D, Part
V of the Medicare cost report.
(3) The charge ratios in paragraphs
(b)(1)(i)(B)(1) through (b)(1)(i)(B)(2) of
this section for Medicare equivalent
services are multiplied by Medicaid
charges as reported to the Medicaid
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Management Information System
(MMIS).
(ii) Private Clinic Services. For
privately operated clinics that are not
providing outpatient hospital services
under § 440.20 (those that would not be
paid by Medicare in that setting under
OPPS or under an alternative outpatient
hospital service payment methodology),
the reasonable estimate of what
Medicare would pay for equivalent
Medicaid services may be determined
through:
(A) A State Plan reimbursement
methodology for covered services that is
a defined percentage, not to exceed 100
percent, of what Medicare pays under
the non-facility fee schedule; or
(B) For reimbursement methodologies
based upon a Medicaid-specific fee
schedule or encounter rate, a
comparison by CPT code of the amount
paid by Medicare for equivalent
Medicaid services. The calculation may
be conducted in the aggregate for clinic
type or by specific facilities (ESRD,
ASC, etc). Clinical diagnostic laboratory
services or any other services for which
the Act defines a separate upper limit
for Medicaid reimbursement must be
excluded from the clinic UPL.
(C) For dentists providing services in
clinics, the clinic UPL calculation may
include payment amounts at the amount
that Medicaid would pay outside of the
facility.
*
*
*
*
*
(Catalog of Federal Domestic Assistance
Program No. 93.778, Medical Assistance
Program)
Dated: March 15, 2007.
Leslie V. Norwalk,
Acting Administrator, Centers for Medicare
& Medicaid Services.
Approved: June 20, 2007.
Michael O. Leavitt,
Secretary.
Editorial Note: This document was
received at the Office of the Federal Register
on September 24, 2007.
[FR Doc. E7–19154 Filed 9–27–07; 8:45 am]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 070827484–7485–01]
RIN 0648–AV99
Fisheries of the Northeastern United
States; Recreational Management
Measures for the Summer Flounder
Fishery; Fishing Year 2008
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
SUMMARY: NMFS proposes coastwide
summer flounder recreational
management measures to
administratively complete the
rulemaking process initiated in March
2007. This action is necessary to
propose appropriate coastwide
management measures to be in place on
January 1, 2008, following the
expiration of the current state-by-state
conservation equivalency management
measures on December 31, 2007. The
intent of these measures is to prevent
overfishing of the summer flounder
resource during the interim between the
aforementioned expiration of the 2007
recreational measures and the
implementation of measures for 2008.
DATES: Comments must be received by
5 p.m. local time, on October 15, 2007.
ADDRESSES: You may submit comments
by any of the following methods:
• E-mail: 0648–AV99@noaa.gov.
Include in the subject line the following
identifier: ‘‘Comments on 2008 Summer
Flounder Interim Recreational
Measures.’’
• Federal e-rulemaking portal: https://
www.regulations.gov
• Mail: Patricia A. Kurkul, Regional
Administrator, NMFS, Northeast
Regional Office, One Blackburn Drive,
Gloucester, MA 01930. Mark the outside
of the envelope: ‘‘Comments on 2008
Summer Flounder Interim Recreational
Measures.’’
• Fax: (978) 281–9135.
Copies of the Supplemental
Environmental Assessment, as well as
the original Environmental Assessment,
Regulatory Impact Review, and Initial
Regulatory Flexibility Analysis (EA/
RIR/IRFA) completed for the 2007
recreational management measures are
available from Daniel T. Furlong,
Executive Director, Mid-Atlantic
Fishery Management Council, Room
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2115, Federal Building, 300 South New
Street, Dover, DE 19901–6790. The
Supplemental Environmental
Assessment is also accessible via the
Internet at https://www.nero.noaa.gov.
FOR FURTHER INFORMATION CONTACT:
Michael P. Ruccio, Fishery Policy
Analyst, (978) 281–9104.
This
proposed action is necessary to
complete the final detail of the 2007
summer flounder recreational
management measures rulemaking and
should not be confused with upcoming
process to develop the 2008 recreational
management measures. The MidAtlantic Fishery Management Council
(Council) will begin development of the
2008 recreational management
measures, based on updated assessment
information and 2007 fishery
information, through its Monitoring
Committee meeting in November 2007.
The Council will consider the
Monitoring Committee’s
recommendations for 2008 management
measures during its December 2007
meeting in Secaucus, NJ. The following
summarizes the details of several events
that transpired before and during the
initial recreational management
measures rulemaking that brought about
the need for this action.
SUPPLEMENTARY INFORMATION:
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2007 Recreational Management
Measures Options
Under the Summer Flounder, Scup,
and Black Sea Bass Fishery Management
Plan (FMP), the Council may
recommend and NMFS may approve
one of two approaches for managing the
summer flounder recreational fishery:
State-by-state conservation equivalency
with a precautionary default backstop
approved by the Atlantic States Marine
Fisheries Commission (Commission),
which cooperatively manages summer
flounder in state waters, and NMFS; or
coastwide management measures. The
FMP requires that the Council review
updated assessment and fishery
information on an annual basis and
recommend to NMFS both a Total
Allowable Landings (TAL) and
recreational management measures.
Under conservation equivalency, any
state that fails to provide measures for
Commission and NMFS review, or
whose measures are found not to be
sufficient to achieve the required
reduction in recreational landings, is
bound to the precautionary default
measures. The precautionary default is
set at or below the level of reduction
needed for the state with the highest
reduction level. Coastwide measures are
designed to achieve the necessary
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reduction in landings for the entire
coast.
Council’s Proposed 2007 Measures
The Council indicated, during its
December 2006 meeting, that its
preferred alternative for 2007 summer
flounder recreational fishery
management was conservation
equivalency. Under this approach, states
craft measures that produce the required
state-by-state reduction in recreational
landings to constrain landings within
their respective targets. NMFS
implemented conservation equivalency
to manage the 2007 recreational summer
flounder fishery, consistent with the
Council’s recommendation, on June 1,
2007 (72 FR 30492). The precautionary
default measures were not required for
any state, as both the Commission and
NMFS approved and implemented the
individual states’ measures for
equivalent reductions. Detailed
information on the 2007 conservation
equivalent and precautionary default
measures are found in the June 1, 2007,
final rule and is not repeated here.
The Council proposed, as the nonpreferred alternative for the 2007
summer flounder recreational fishery
management, coastwide measures of a
19–inch (48.26–cm) minimum fish size,
a 1–fish possession limit, and a yearround season. In a year when
conservation equivalency is
implemented, the coastwide measures
are not in effect during the fishing year
but become the regulatory default
measures in place on January 1 in the
year after conservation equivalency has
expired. These measures remain
effective until superseded by new
measures, implemented by NMFS as
part of the annual management
measures review conducted by the
Council, as required by the FMP.
Events that Transpired Before and
During Rulemaking Requiring Change
to Proposed Coastwide Measures
The 2007 summer flounder TAL was
increased by NMFS from 12.983 million
lb (5,889 mt), as published in the
Federal Register on December 14, 2006
(71 FR 75134), to 17.112 million lb
(7,762 mt) on January 19, 2007 (72 FR
2458). The increase in TAL was the
result of the Secretary of Commerce’s
determination that the rebuilding time
line for summer flounder could be
extended for 3 years, consistent with
authority granted in the MagnusonStevens Fishery Conservation and
Management Reauthorization Act of
2006 (Reauthorized Magnuson-Stevens
Act). The rationale for the respective
TALs, including the justifications for
increasing the summer flounder
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55167
rebuilding time line and increasing the
2007 TAL, are included within the
individual rules and are not repeated
here.
The development of the 2007 summer
flounder recreational management
measures occurred concurrently with
the passage of the Reauthorized
Magnuson-Stevens Act by Congress,
analysis of recreational management
measures alternatives by Council and
NMFS staff, the December 2006 Council
meeting, and the aforementioned
increase in TAL following the
Secretarial determination to extend the
summer flounder rebuilding time line.
Because of this succession of
overlapping events from December 2006
through January 2007, during the
development of recreational
management measures, insufficient time
was available for the development of
coastwide management alternatives
based on the higher TAL and
subsequently higher recreational harvest
limit before NMFS published the
proposed 2007 recreational management
measures (72 FR 12158, March 15,
2007).
Individual states do not begin to
develop conservation equivalency
measures until after the Council and
Commission’s Summer Flounder
Management Board (Board) have
identified conservation equivalency as
the preferred management system for
the upcoming year. The Council and the
Board identified conservation
equivalency as their preferred
alternative for 2007 management during
the December 2006 Council meeting.
NMFS’s emergency action to increase
the 2007 TAL occurred in mid-January
2007. As a result, states were able to
craft their 2007 conservation
equivalency proposals consistent with
the level of reduction necessary to
constrain recreational landings to the
targets resulting from the increased
17.112–million-lb (7,762–mt) TAL.
However, the analysis had already been
conducted for the coastwide measures
alternative based on the recreational
harvest limit associated with the lower
12.983–million-lb (5,889–mt) TAL and
was not revised prior to the publication
of the recreational management
measures proposed rule (72 FR 12158,
March 15, 2007). In response to the
proposed rule, members of the public
commented that the proposed coastwide
measures of a 19–inch (48.26–cm)
minimum fish size, 1–fish possession
limit, and year-round season would be
unduly restrictive if implemented, as it
would constrain landings to
approximately 55 percent of the
recreational harvest limit under the
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increased 17.112–million-lb (7,762–mt)
TAL.
This issue was rendered moot for
2007 as conservation equivalency was
implemented by NMFS instead of the
coastwide measures (72 FR 30492, June
1, 2007). However, on January 1, 2008,
after conservation equivalency has
expired for the 2007 fishing year, the
coastwide measures will become the
interim default measures and remain in
place until new recreational
management measures are developed
and implemented as part of the annual
recreational management measures
review in late spring/early summer
2008. NMFS indicated in the 2007
recreational management measures final
rule (72 FR 30492, June 1, 2007) that a
separate notice and comment
rulemaking, to propose and implement
an coastwide measure that is based on
the increased TAL to serve as the
interim 2008 management measures
after conservation equivalency has
expired, would be undertaken. This
proposed rule is the initiation of that
action, which is largely administrative
and designed to complete the normal
recreational management measures
rulemaking process that had been
constrained by the options available for
consideration during the initial
rulemaking that resulted in conservation
equivalency for 2007.
Proposed Interim Coastwide Measure
The Commission’s Technical
Committee (TC) conducted analysis on
coastwide measure alternatives after the
implementation of the increased TAL.
Several options considered by the TC
were designed to constrain landings to
or below the increased 2007 recreational
harvest limit of 2,421,460 fish. The TC
provided analysis that indicated an
18.5–inch (46.99–cm) minimum fish
size with a 4–fish possession limit and
a year-round season would constrain
landings to 90 percent of the harvest
limit (2,181,735 fish). NMFS proposes to
now implement these measures as the
2007 coastwide measures. As a result,
these measures, if adopted, would
complete the normal regulatory process
that occurs when conservation
equivalency is utilized to manage the
summer flounder recreational fishery, as
was the case for 2007. These measures,
if adopted, will replace the existing
coastwide measures regulatory language
of a 17–inch (43.18–cm) minimum fish
size, a 4–fish possession limit, and no
closed season, and serve as the default
management measures in place on
January 1, 2008, after conservation
equivalent measures have expired.
The 2008 TAL and the resulting
recreational harvest limit will not be
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finalized and the Council will not
recommend recreational harvest
measures until December 2007. It is not
certain, at this time, if the coastwide
measure will require revision as part of
the updated 2008 recreational
management measures, as the annual
development of those measures will not
begin until later this year.
These measures, if implemented,
should be sufficiently risk averse as
interim measures until new measures,
based on the updated 2007 stock
assessment, are developed and
implemented. Summer flounder are
typically found offshore during colder
winter months and only limited
recreational fisheries occur in the
southern range of the stock during
spring. Marine Recreational Fisheries
Statistical Survey (MRFSS) data from
1994–1998 show that less than 0.9–
percent of the annual harvest occurs in
the first two MRFSS data collection
periods (called waves) of the year
(January-April). Approximately 28
percent of the coastwide summer
flounder harvest occurs in Wave 3 (MayJune). The difference in implementation
time between conservation equivalency
and coastwide measures is the time it
takes states to develop, and get
approved, individual measures under
conservation equivalency, should that
management method be utilized in
2008.
Based on recent years’ development
and rulemaking schedule when
conservation equivalency has been
utilized for summer flounder
recreational management measures, it is
expected that updated measures, based
on 2007 recreational landings and
adjusted for any quota overages, would
be in place before Wave 4 (July-August)
and the bulk of summer flounder
recreational fisheries begin in 2008. If
different coastwide measures are
recommended by the Council and
Commission and implemented by
NMFS for 2008 management, it is
expected that those measures would be
in place during Wave 2 (March-April
2008).
Classification
NMFS has determined that the
proposed rule is consistent with the
FMP and preliminarily determined that
the rule is consistent with the
Magnuson-Stevens Fishery
Conservation and Management Act and
other applicable laws.
This proposed rule has been
determined to be not significant for
purposes of Executive Order 12866.
This proposed rule does not
duplicate, overlap, or conflict with other
Federal rules.
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An IRFA was prepared for the 2007
recreational management measures
rulemaking process, as required by
section 603 of the RFA. The IRFA
describes the economic impact this
proposed rule, if adopted, would have
on small entities. A description of the
action, why it is being considered (i.e.,
what problem it addresses), and the
legal basis for this action are contained
in the initial recreational management
measures proposed rule (72 FR 12158,
March 15, 2007 ) and at the beginning
of that rule’s preamble and in the
SUMMARY section of this proposed rule’s
preamble. A detailed summary of the
analysis conducted is included in the
initial recreational management
measures proposed rule (72 FR 12158,
March 15, 2007). An additional
summary follows. A copy of the
complete IRFA is available from the
Council (see ADDRESSES).
The proposed action could affect any
recreational angler who fishes for
summer flounder, in the EEZ or on a
party/charter vessel issued a Federal
permit for summer flounder. However,
the IRFA focuses upon the impacts on
party/charter vessels issued a Federal
permit for summer flounder because
these vessels are considered small
business entities for the purposes of the
Regulatory Flexibility Act, i.e.,
businesses with gross revenues of up to
$6.5 million. These small entities can be
specifically identified in the Federal
vessel permit database and would be
impacted by the recreational measures,
regardless of whether they fish in
Federal or state waters. Although
individual recreational anglers are likely
to be impacted, they are not considered
small entities under the RFA. Also,
there is no permit requirement to
participate in these fisheries; thus, it
would be difficult to quantify any
impacts on recreational anglers in
general.
The proposed measures could affect
any of the 1,006 vessels possessing a
Federal charter/party permit for summer
flounder in 2005, the most recent year
for which complete permit data are
available. However, only 66 of these
vessels reported active participation in
the recreational summer flounder
fishery in 2005.
In the IRFA, the no-action alternative
(i.e., Alternative 1, maintenance of the
regulations as codified) is defined as
continuation of the following measures
for summer flounder: Coastwide
measures of a 17–inch (43.18–cm)
minimum fish size; a 4–fish possession
limit; and no closed season (i.e., season
of January 1 through December 31). In
consideration of the recreational harvest
limits established for the 2007 fishing
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year and necessary for the beginning of
the 2008 fishing year, taking no action
in the summer flounder fishery would
be inconsistent with the goals and
objectives of the FMP and its
implementing regulations because the
no-action alternative would not have
been expected to prevent the 2007
summer flounder recreational harvest
limits from being exceeded. In addition,
it is unlikely that these measures would
serve as adequate interim regulatory
measures for 2008 until appropriate
measures, either conservation
equivalency or different coastwide
measures, are implemented to constrain
harvest within the yet to be established
2008 recreational harvest limit.
The impacts of the Council’s
originally proposed summer flounder
coastwide alternative (i.e., Alternative 2)
for a 19–inch (48.26–cm) minimum fish
size, a 1–fish possession limit, and no
closed season, were evaluated using the
quantitative methods of the IRFA as
summarized in the initial proposed rule
(72 FR 12158, March 15, 2007).
Impacted trips were defined under
Alternative 2 as individual angler trips
taken aboard party/charter vessels in
2006 that landed at least one summer
flounder smaller than 19 inches (48.26
cm), or that landed more than one
summer flounder. The analysis
concluded that the measures would
affect 4.13 percent of the party/charter
vessel trips in the NE, including those
trips where no summer flounder were
caught.
However, the Alternative 2 measures
were designed to constrain recreational
landings to the original recreational
harvest limit resulting from the preextended rebuilding time frame TAL of
12.983 million lb (5,889 mt). Under the
increased TAL implemented on January,
19, 2007, following the Secretarial
determination that the rebuilding time
frame could be extended and the 2007
TAL increased, further analysis
indicated that the Alternative 2
measures would constrain recreational
landings to 55 percent of the larger
recreational harvest limit resulting from
increasing the TAL. While this would
satisfy both the objectives of the FMP
and the Magnuson-Stevens Act, the
public submitted comments in response
to the 2007 recreational management
measures proposed rule (72 FR 12158,
March 15, 2007) that the Alternative 2
measures were unduly restrictive.
NMFS agreed and indicated at that time
that other alternatives would be
evaluated for their effectiveness in
allowing a higher percentage of the
recreational harvest limit under the
increased TAL to be attained while
constraining landings to the 2007 limit
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and still ensuring compliance with the
FMP and Magnuson-Stevens Act.
The measures detailed in this
proposed rule (i.e., Alternative 3) for an
18.5–inch (46.99–cm) minimum fish
size with a 4–fish possession limit and
a year-round season, would constrain
landings to 90 percent of the harvest
limit (2,181,735 fish). Again, the IRFA
contained analysis on the impact of the
Alternative 3 size limit for 2007. Under
Alternative 3, impacted trips are defined
as trips taken in 2006 that landed at
least one summer flounder smaller than
18.5 inches (46.99 cm) or landed more
than one summer flounder. The analysis
concluded that implementation of the
Alternative 3 measures could affect 4.06
percent of the party/charter vessel trips
in the NE, including those trips were no
summer flounder were caught. While
the percent of potentially affected trips
is only slightly different, the Alternative
3 measures would afford additional fish
to be kept by anglers (i.e., 4 fish as
compared to 1 fish) and would allow a
greater number of fish to be landed
under the increased recreational harvest
limit and thereby is the alternative with
the least economic impact on small
entities while still achieving the
required objectives of the FMP and the
Magnuson-Stevens Act.
Compared to the measures implement
through conservation equivalency for
2007, the Alternative 3 measures would
provide less restrictive minimum fish
sizes for Rhode Island and New York,
while maintaining the same size limit
for Virginia. All other states’ measures
for 2007 were smaller than the
Alternative 3 minimum fish size of 18.5
inches (46.99 cm). A 4–fish possession
limit would maintain the same limits in
place for New York, Delaware, and
Maryland; all other states’ possession
limits were higher than 4–fish under
conservation equivalency. The yearround season would be equal to or
longer than the 2007 state measures
implemented under conservation
equivalency.
Under the Council’s proposed
coastwide measures (i.e., Alternative 2:
A19–inch (48.26–cm) minimum fish
size, a 1–fish possession limit, and no
closed season), each state’s conservation
equivalency measures were smaller than
19 inches (48.26 cm) except New York.
Each state had possession limits higher
than one fish, and four states (Rhode
Island, Connecticut, New Jersey, and
Virginia) had seasons that were less
shorter January 1–December 31; all
other states had year-long seasons.
There are no new reporting or
recordkeeping requirements contained
in any of the alternatives considered for
this action.
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55169
List of Subjects in 50 CFR Part 648
Fisheries and Fishing.
Dated: September 21, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator For
Regulatory Programs,National Marine
Fisheries Service.
For the reasons set out in the
preamble, 50 CFR part 648 is proposed
to be amended as follows:
PART 648—FISHERIES OF THE
NORTHEASTERN UNITED STATES
1. The authority citation for part 648
continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
2. In § 648.103, paragraph (b) is
revised to read as follows:
§ 648.103
Minimum fish sizes.
*
*
*
*
*
(b) Unless otherwise specified
pursuant to § 648.107, the minimum
size for summer flounder is 18.5 inches
(46.99 cm) TL for all vessels that do not
qualify for a moratorium permit, and
charter boats holding a moratorium
permit if fishing with more than three
crew members, or party boats holding a
moratorium permit if fishing with
passengers for hire or carrying more
than five crew members.
*
*
*
*
*
3. In § 648.105, the first sentence of
paragraph (a) is revised to read as
follows:
§ 648.105
Possession restrictions.
*
*
*
*
*
(a) Unless otherwise specified
pursuant to § 648.107, no person shall
possess more than four summer
flounder in, or harvested from, the EEZ,
unless that person is the owner or
operator of a fishing vessel issued a
summer flounder moratorium permit, or
is issued a summer flounder dealer
permit. * * *
*
*
*
*
*
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]]>Agencies
[Federal Register Volume 72, Number 188 (Friday, September 28, 2007)]
[Proposed Rules]
[Pages 55166-55169]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-19133]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 070827484-7485-01]
RIN 0648-AV99
Fisheries of the Northeastern United States; Recreational
Management Measures for the Summer Flounder Fishery; Fishing Year 2008
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes coastwide summer flounder recreational
management measures to administratively complete the rulemaking process
initiated in March 2007. This action is necessary to propose
appropriate coastwide management measures to be in place on January 1,
2008, following the expiration of the current state-by-state
conservation equivalency management measures on December 31, 2007. The
intent of these measures is to prevent overfishing of the summer
flounder resource during the interim between the aforementioned
expiration of the 2007 recreational measures and the implementation of
measures for 2008.
DATES: Comments must be received by 5 p.m. local time, on October 15,
2007.
ADDRESSES: You may submit comments by any of the following methods:
E-mail: 0648-AV99@noaa.gov. Include in the subject line
the following identifier: ``Comments on 2008 Summer Flounder Interim
Recreational Measures.''
Federal e-rulemaking portal: https://www.regulations.gov
Mail: Patricia A. Kurkul, Regional Administrator, NMFS,
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930.
Mark the outside of the envelope: ``Comments on 2008 Summer Flounder
Interim Recreational Measures.''
Fax: (978) 281-9135.
Copies of the Supplemental Environmental Assessment, as well as the
original Environmental Assessment, Regulatory Impact Review, and
Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) completed for the
2007 recreational management measures are available from Daniel T.
Furlong, Executive Director, Mid-Atlantic Fishery Management Council,
Room
[[Page 55167]]
2115, Federal Building, 300 South New Street, Dover, DE 19901-6790. The
Supplemental Environmental Assessment is also accessible via the
Internet at https://www.nero.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Michael P. Ruccio, Fishery Policy
Analyst, (978) 281-9104.
SUPPLEMENTARY INFORMATION: This proposed action is necessary to
complete the final detail of the 2007 summer flounder recreational
management measures rulemaking and should not be confused with upcoming
process to develop the 2008 recreational management measures. The Mid-
Atlantic Fishery Management Council (Council) will begin development of
the 2008 recreational management measures, based on updated assessment
information and 2007 fishery information, through its Monitoring
Committee meeting in November 2007. The Council will consider the
Monitoring Committee's recommendations for 2008 management measures
during its December 2007 meeting in Secaucus, NJ. The following
summarizes the details of several events that transpired before and
during the initial recreational management measures rulemaking that
brought about the need for this action.
2007 Recreational Management Measures Options
Under the Summer Flounder, Scup, and Black Sea Bass Fishery
Management Plan (FMP), the Council may recommend and NMFS may approve
one of two approaches for managing the summer flounder recreational
fishery: State-by-state conservation equivalency with a precautionary
default backstop approved by the Atlantic States Marine Fisheries
Commission (Commission), which cooperatively manages summer flounder in
state waters, and NMFS; or coastwide management measures. The FMP
requires that the Council review updated assessment and fishery
information on an annual basis and recommend to NMFS both a Total
Allowable Landings (TAL) and recreational management measures. Under
conservation equivalency, any state that fails to provide measures for
Commission and NMFS review, or whose measures are found not to be
sufficient to achieve the required reduction in recreational landings,
is bound to the precautionary default measures. The precautionary
default is set at or below the level of reduction needed for the state
with the highest reduction level. Coastwide measures are designed to
achieve the necessary reduction in landings for the entire coast.
Council's Proposed 2007 Measures
The Council indicated, during its December 2006 meeting, that its
preferred alternative for 2007 summer flounder recreational fishery
management was conservation equivalency. Under this approach, states
craft measures that produce the required state-by-state reduction in
recreational landings to constrain landings within their respective
targets. NMFS implemented conservation equivalency to manage the 2007
recreational summer flounder fishery, consistent with the Council's
recommendation, on June 1, 2007 (72 FR 30492). The precautionary
default measures were not required for any state, as both the
Commission and NMFS approved and implemented the individual states'
measures for equivalent reductions. Detailed information on the 2007
conservation equivalent and precautionary default measures are found in
the June 1, 2007, final rule and is not repeated here.
The Council proposed, as the non-preferred alternative for the 2007
summer flounder recreational fishery management, coastwide measures of
a 19-inch (48.26-cm) minimum fish size, a 1-fish possession limit, and
a year-round season. In a year when conservation equivalency is
implemented, the coastwide measures are not in effect during the
fishing year but become the regulatory default measures in place on
January 1 in the year after conservation equivalency has expired. These
measures remain effective until superseded by new measures, implemented
by NMFS as part of the annual management measures review conducted by
the Council, as required by the FMP.
Events that Transpired Before and During Rulemaking Requiring Change to
Proposed Coastwide Measures
The 2007 summer flounder TAL was increased by NMFS from 12.983
million lb (5,889 mt), as published in the Federal Register on December
14, 2006 (71 FR 75134), to 17.112 million lb (7,762 mt) on January 19,
2007 (72 FR 2458). The increase in TAL was the result of the Secretary
of Commerce's determination that the rebuilding time line for summer
flounder could be extended for 3 years, consistent with authority
granted in the Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act of 2006 (Reauthorized Magnuson-Stevens Act). The
rationale for the respective TALs, including the justifications for
increasing the summer flounder rebuilding time line and increasing the
2007 TAL, are included within the individual rules and are not repeated
here.
The development of the 2007 summer flounder recreational management
measures occurred concurrently with the passage of the Reauthorized
Magnuson-Stevens Act by Congress, analysis of recreational management
measures alternatives by Council and NMFS staff, the December 2006
Council meeting, and the aforementioned increase in TAL following the
Secretarial determination to extend the summer flounder rebuilding time
line. Because of this succession of overlapping events from December
2006 through January 2007, during the development of recreational
management measures, insufficient time was available for the
development of coastwide management alternatives based on the higher
TAL and subsequently higher recreational harvest limit before NMFS
published the proposed 2007 recreational management measures (72 FR
12158, March 15, 2007).
Individual states do not begin to develop conservation equivalency
measures until after the Council and Commission's Summer Flounder
Management Board (Board) have identified conservation equivalency as
the preferred management system for the upcoming year. The Council and
the Board identified conservation equivalency as their preferred
alternative for 2007 management during the December 2006 Council
meeting. NMFS's emergency action to increase the 2007 TAL occurred in
mid-January 2007. As a result, states were able to craft their 2007
conservation equivalency proposals consistent with the level of
reduction necessary to constrain recreational landings to the targets
resulting from the increased 17.112-million-lb (7,762-mt) TAL. However,
the analysis had already been conducted for the coastwide measures
alternative based on the recreational harvest limit associated with the
lower 12.983-million-lb (5,889-mt) TAL and was not revised prior to the
publication of the recreational management measures proposed rule (72
FR 12158, March 15, 2007). In response to the proposed rule, members of
the public commented that the proposed coastwide measures of a 19-inch
(48.26-cm) minimum fish size, 1-fish possession limit, and year-round
season would be unduly restrictive if implemented, as it would
constrain landings to approximately 55 percent of the recreational
harvest limit under the
[[Page 55168]]
increased 17.112-million-lb (7,762-mt) TAL.
This issue was rendered moot for 2007 as conservation equivalency
was implemented by NMFS instead of the coastwide measures (72 FR 30492,
June 1, 2007). However, on January 1, 2008, after conservation
equivalency has expired for the 2007 fishing year, the coastwide
measures will become the interim default measures and remain in place
until new recreational management measures are developed and
implemented as part of the annual recreational management measures
review in late spring/early summer 2008. NMFS indicated in the 2007
recreational management measures final rule (72 FR 30492, June 1, 2007)
that a separate notice and comment rulemaking, to propose and implement
an coastwide measure that is based on the increased TAL to serve as the
interim 2008 management measures after conservation equivalency has
expired, would be undertaken. This proposed rule is the initiation of
that action, which is largely administrative and designed to complete
the normal recreational management measures rulemaking process that had
been constrained by the options available for consideration during the
initial rulemaking that resulted in conservation equivalency for 2007.
Proposed Interim Coastwide Measure
The Commission's Technical Committee (TC) conducted analysis on
coastwide measure alternatives after the implementation of the
increased TAL. Several options considered by the TC were designed to
constrain landings to or below the increased 2007 recreational harvest
limit of 2,421,460 fish. The TC provided analysis that indicated an
18.5-inch (46.99-cm) minimum fish size with a 4-fish possession limit
and a year-round season would constrain landings to 90 percent of the
harvest limit (2,181,735 fish). NMFS proposes to now implement these
measures as the 2007 coastwide measures. As a result, these measures,
if adopted, would complete the normal regulatory process that occurs
when conservation equivalency is utilized to manage the summer flounder
recreational fishery, as was the case for 2007. These measures, if
adopted, will replace the existing coastwide measures regulatory
language of a 17-inch (43.18-cm) minimum fish size, a 4-fish possession
limit, and no closed season, and serve as the default management
measures in place on January 1, 2008, after conservation equivalent
measures have expired.
The 2008 TAL and the resulting recreational harvest limit will not
be finalized and the Council will not recommend recreational harvest
measures until December 2007. It is not certain, at this time, if the
coastwide measure will require revision as part of the updated 2008
recreational management measures, as the annual development of those
measures will not begin until later this year.
These measures, if implemented, should be sufficiently risk averse
as interim measures until new measures, based on the updated 2007 stock
assessment, are developed and implemented. Summer flounder are
typically found offshore during colder winter months and only limited
recreational fisheries occur in the southern range of the stock during
spring. Marine Recreational Fisheries Statistical Survey (MRFSS) data
from 1994-1998 show that less than 0.9-percent of the annual harvest
occurs in the first two MRFSS data collection periods (called waves) of
the year (January-April). Approximately 28 percent of the coastwide
summer flounder harvest occurs in Wave 3 (May-June). The difference in
implementation time between conservation equivalency and coastwide
measures is the time it takes states to develop, and get approved,
individual measures under conservation equivalency, should that
management method be utilized in 2008.
Based on recent years' development and rulemaking schedule when
conservation equivalency has been utilized for summer flounder
recreational management measures, it is expected that updated measures,
based on 2007 recreational landings and adjusted for any quota
overages, would be in place before Wave 4 (July-August) and the bulk of
summer flounder recreational fisheries begin in 2008. If different
coastwide measures are recommended by the Council and Commission and
implemented by NMFS for 2008 management, it is expected that those
measures would be in place during Wave 2 (March-April 2008).
Classification
NMFS has determined that the proposed rule is consistent with the
FMP and preliminarily determined that the rule is consistent with the
Magnuson-Stevens Fishery Conservation and Management Act and other
applicable laws.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
This proposed rule does not duplicate, overlap, or conflict with
other Federal rules.
An IRFA was prepared for the 2007 recreational management measures
rulemaking process, as required by section 603 of the RFA. The IRFA
describes the economic impact this proposed rule, if adopted, would
have on small entities. A description of the action, why it is being
considered (i.e., what problem it addresses), and the legal basis for
this action are contained in the initial recreational management
measures proposed rule (72 FR 12158, March 15, 2007 ) and at the
beginning of that rule's preamble and in the SUMMARY section of this
proposed rule's preamble. A detailed summary of the analysis conducted
is included in the initial recreational management measures proposed
rule (72 FR 12158, March 15, 2007). An additional summary follows. A
copy of the complete IRFA is available from the Council (see
ADDRESSES).
The proposed action could affect any recreational angler who fishes
for summer flounder, in the EEZ or on a party/charter vessel issued a
Federal permit for summer flounder. However, the IRFA focuses upon the
impacts on party/charter vessels issued a Federal permit for summer
flounder because these vessels are considered small business entities
for the purposes of the Regulatory Flexibility Act, i.e., businesses
with gross revenues of up to $6.5 million. These small entities can be
specifically identified in the Federal vessel permit database and would
be impacted by the recreational measures, regardless of whether they
fish in Federal or state waters. Although individual recreational
anglers are likely to be impacted, they are not considered small
entities under the RFA. Also, there is no permit requirement to
participate in these fisheries; thus, it would be difficult to quantify
any impacts on recreational anglers in general.
The proposed measures could affect any of the 1,006 vessels
possessing a Federal charter/party permit for summer flounder in 2005,
the most recent year for which complete permit data are available.
However, only 66 of these vessels reported active participation in the
recreational summer flounder fishery in 2005.
In the IRFA, the no-action alternative (i.e., Alternative 1,
maintenance of the regulations as codified) is defined as continuation
of the following measures for summer flounder: Coastwide measures of a
17-inch (43.18-cm) minimum fish size; a 4-fish possession limit; and no
closed season (i.e., season of January 1 through December 31). In
consideration of the recreational harvest limits established for the
2007 fishing
[[Page 55169]]
year and necessary for the beginning of the 2008 fishing year, taking
no action in the summer flounder fishery would be inconsistent with the
goals and objectives of the FMP and its implementing regulations
because the no-action alternative would not have been expected to
prevent the 2007 summer flounder recreational harvest limits from being
exceeded. In addition, it is unlikely that these measures would serve
as adequate interim regulatory measures for 2008 until appropriate
measures, either conservation equivalency or different coastwide
measures, are implemented to constrain harvest within the yet to be
established 2008 recreational harvest limit.
The impacts of the Council's originally proposed summer flounder
coastwide alternative (i.e., Alternative 2) for a 19-inch (48.26-cm)
minimum fish size, a 1-fish possession limit, and no closed season,
were evaluated using the quantitative methods of the IRFA as summarized
in the initial proposed rule (72 FR 12158, March 15, 2007). Impacted
trips were defined under Alternative 2 as individual angler trips taken
aboard party/charter vessels in 2006 that landed at least one summer
flounder smaller than 19 inches (48.26 cm), or that landed more than
one summer flounder. The analysis concluded that the measures would
affect 4.13 percent of the party/charter vessel trips in the NE,
including those trips where no summer flounder were caught.
However, the Alternative 2 measures were designed to constrain
recreational landings to the original recreational harvest limit
resulting from the pre-extended rebuilding time frame TAL of 12.983
million lb (5,889 mt). Under the increased TAL implemented on January,
19, 2007, following the Secretarial determination that the rebuilding
time frame could be extended and the 2007 TAL increased, further
analysis indicated that the Alternative 2 measures would constrain
recreational landings to 55 percent of the larger recreational harvest
limit resulting from increasing the TAL. While this would satisfy both
the objectives of the FMP and the Magnuson-Stevens Act, the public
submitted comments in response to the 2007 recreational management
measures proposed rule (72 FR 12158, March 15, 2007) that the
Alternative 2 measures were unduly restrictive. NMFS agreed and
indicated at that time that other alternatives would be evaluated for
their effectiveness in allowing a higher percentage of the recreational
harvest limit under the increased TAL to be attained while constraining
landings to the 2007 limit and still ensuring compliance with the FMP
and Magnuson-Stevens Act.
The measures detailed in this proposed rule (i.e., Alternative 3)
for an 18.5-inch (46.99-cm) minimum fish size with a 4-fish possession
limit and a year-round season, would constrain landings to 90 percent
of the harvest limit (2,181,735 fish). Again, the IRFA contained
analysis on the impact of the Alternative 3 size limit for 2007. Under
Alternative 3, impacted trips are defined as trips taken in 2006 that
landed at least one summer flounder smaller than 18.5 inches (46.99 cm)
or landed more than one summer flounder. The analysis concluded that
implementation of the Alternative 3 measures could affect 4.06 percent
of the party/charter vessel trips in the NE, including those trips were
no summer flounder were caught. While the percent of potentially
affected trips is only slightly different, the Alternative 3 measures
would afford additional fish to be kept by anglers (i.e., 4 fish as
compared to 1 fish) and would allow a greater number of fish to be
landed under the increased recreational harvest limit and thereby is
the alternative with the least economic impact on small entities while
still achieving the required objectives of the FMP and the Magnuson-
Stevens Act.
Compared to the measures implement through conservation equivalency
for 2007, the Alternative 3 measures would provide less restrictive
minimum fish sizes for Rhode Island and New York, while maintaining the
same size limit for Virginia. All other states' measures for 2007 were
smaller than the Alternative 3 minimum fish size of 18.5 inches (46.99
cm). A 4-fish possession limit would maintain the same limits in place
for New York, Delaware, and Maryland; all other states' possession
limits were higher than 4-fish under conservation equivalency. The
year-round season would be equal to or longer than the 2007 state
measures implemented under conservation equivalency.
Under the Council's proposed coastwide measures (i.e., Alternative
2: A19-inch (48.26-cm) minimum fish size, a 1-fish possession limit,
and no closed season), each state's conservation equivalency measures
were smaller than 19 inches (48.26 cm) except New York. Each state had
possession limits higher than one fish, and four states (Rhode Island,
Connecticut, New Jersey, and Virginia) had seasons that were less
shorter January 1-December 31; all other states had year-long seasons.
There are no new reporting or recordkeeping requirements contained
in any of the alternatives considered for this action.
List of Subjects in 50 CFR Part 648
Fisheries and Fishing.
Dated: September 21, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs,National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is
proposed to be amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.103, paragraph (b) is revised to read as follows:
Sec. 648.103 Minimum fish sizes.
* * * * *
(b) Unless otherwise specified pursuant to Sec. 648.107, the
minimum size for summer flounder is 18.5 inches (46.99 cm) TL for all
vessels that do not qualify for a moratorium permit, and charter boats
holding a moratorium permit if fishing with more than three crew
members, or party boats holding a moratorium permit if fishing with
passengers for hire or carrying more than five crew members.
* * * * *
3. In Sec. 648.105, the first sentence of paragraph (a) is revised
to read as follows:
Sec. 648.105 Possession restrictions.
* * * * *
(a) Unless otherwise specified pursuant to Sec. 648.107, no person
shall possess more than four summer flounder in, or harvested from, the
EEZ, unless that person is the owner or operator of a fishing vessel
issued a summer flounder moratorium permit, or is issued a summer
flounder dealer permit. * * *
* * * * *
[FR Doc. E7-19133 Filed 9-27-07; 8:45 am]
BILLING CODE 3510-22-S
