E8-3252. Atlantic Coastal Fisheries Cooperative Management Act Provisions; Tautog Fishery

AGENCY:

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

ACTION:

Notice of non-compliance referral.

SUMMARY:

NMFS announces that on February 7, 2008, the Atlantic States Marine Fisheries Commission (Commission) found the State of New Jersey out of compliance with the Commission's Interstate Fishery Management Plan for Tautog (ISFMP). Subsequently, the Commission referred the matter to NMFS, under delegation of authority from the Secretary of Commerce, for federal non-compliance review under the provisions of the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act). The Atlantic Coastal Act mandates that NMFS must review the Commission's non-compliance referral and make specific findings within thirty (30) days after receiving the referral. If NMFS determines that New Jersey failed to carry out its responsibilities under the Tautog ISFMP, and if the measures it failed to implement are necessary for conservation, then, according to the Atlantic Coastal Act, NMFS must declare a moratorium on fishing for tautog in New Jersey waters.

DATES:

NMFS intends to make a determination on this matter by March 11, 2008, and will publish its findings in the Federal Register immediately thereafter.

ADDRESSES:

Harold C. Mears, Director, State, Federal and Constituent Programs Office, NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT:

Bob Ross, Fishery Management Specialist, NMFS, Northeast Region, [phone], fax [phone], e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

Tautog (Tautoga onitis), often known by the common name “blackfish,” is a coastal fish species ranging from Nova Scotia to South Carolina, but most abundant from the southern Gulf of Maine (lower Massachusetts Bay and southern Cape Cod Bay) to Chesapeake Bay. The Commission manages this species according to its Tautog ISFMP. The Commission's Tautog ISFMP can be located at http://www.asmfc.org, (select “Interstate Fishery Management,” then select “Tautog.”)

The Commission Tautog ISFMP—specifically Addendum IV and Addendum V to the ISFMP—indicate that states need to implement measures that would reduce their tautog landings by 25.6% in order to respond to scientific concerns that tautog is being overfished. New Jersey's Marine Fishery Council, however, in November 2007 refused to implement any further measures causing the Commission on February 7, 2008, to vote that New Jersey was out of compliance with the Tautog ISFMP. The Commission subsequently referred its non-compliance finding to NMFS.

Federal response to a Commission non-compliance referral is governed by the Atlantic Coastal Act. Under the Atlantic Coastal Act, the Secretary of Commerce must make two (2) findings within 30 days after receiving the non-compliance referral. First, the Secretary of Commerce must determine whether the state in question (in this case, New Jersey) has failed to carry out its responsibilities under the ISFMP. Second, the Secretary of Commerce must determine whether the measures that the State has failed to implement or enforce are necessary for the conservation of the fishery in question. If the Secretary of Commerce makes affirmative findings on both criteria, then the Secretary must implement a moratorium on fishing in the fishery in question (in this case tautog) within the waters of the noncomplying state (in this case New Jersey). Further, the moratorium must become effective within six (6) months of the date of the Secretary's non-compliance determination. To the extent that the allegedly offending state later implements the involved measure, the Atlantic Coastal Act allows the state to petition the Commission that it has come back into compliance, and if the Commission concurs, the Commission will notify the Secretary of Commerce and, if the Secretary concurs, the moratorium will be withdrawn. The Secretary of Commerce has delegated Atlantic Coastal Act authorities to the Assistant Administrator for Fisheries at NMFS.

NMFS has notified the State of New Jersey, the Commission, the Mid-Atlantic Fishery Management Council, and the New England Fishery Management Council, in separate letters, of its receipt of the Commission's non-compliance referral. In the letters, NMFS solicits commentary from the Commission and Councils to the extent either entity is interested in providing such. NMFS also indicates to the State of New Jersey that the State is entitled to meet with and present its comments directly to NMFS if the State so desires.

NMFS intends to make its non-compliance determination on or about March 11, 2008, which is 30 days after receipt of the Commission's non-compliance referral. NMFS will announce its determination by Federal Register notice immediately thereafter. To the extent that NMFS makes an affirmative non-compliance finding, NMFS will announce the effective date of the moratorium in that Federal Register notice.

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

Dated: February 15, 2008.

Alan D. Risenhoover,

Director, Office of Sustainable Fisheries, National Marine Fisheries Service.