Fisheries of the Northeastern United States; Special Management Zones for Five Delaware Artificial Reefs
Federal Register, Volume 79 Issue 118 (Thursday, June 19, 2014)
Federal Register Volume 79, Number 118 (Thursday, June 19, 2014)
Proposed Rules
Pages 35141-35147
From the Federal Register Online via the Government Printing Office www.gpo.gov
FR Doc No: 2014-14358
Page 35141
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
Docket 130702585-4484-01
RIN 0648-BD42
Fisheries of the Northeastern United States; Special Management Zones for Five Delaware Artificial Reefs
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes management measures to implement Special Management Zones for five Delaware artificial reefs under the black sea bass provisions of the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan. The implementing regulations for the Special Management Zones require NMFS to publish proposed measures to provide an opportunity for public comment. The intent of these measures is to promote orderly use of the resource by reducing user group conflicts, and help maintain the intended socioeconomic benefits of the artificial reefs to the maximum extent practicable.
DATES: Comments must be received by 5 p.m. local time, on August 4, 2014.
ADDRESSES: You may submit comments on this document, identified NOAA-
NMFS-2014-0060, by any of the following methods:
Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0060 click the ``Comment Now!'' icon, complete the required fields, and enter or attach your comments.
Mail and Hand Delivery: John K. Bullard, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope: ``Comments on SMZ Measures.''
Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter ``N/A'' in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.
Copies of the Environmental Assessment and Initial Regulatory Flexibility Analysis (EA/IRFA) and other supporting documents for the Special Management Zones measures are available from Paul Perra, NOAA/
NMFS, Sustainable Fisheries Division, 55 Great Republic Drive, Gloucester, MA 01930. The Special Management Zone measures document is also accessible via the Internet at: http://www.nero.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Paul Perra, Fishery Policy Analyst, (978) 281-9153.
SUPPLEMENTARY INFORMATION: The Delaware Fish and Wildlife Department (DFW) has requested and the Mid-Atlantic Fishery Management Council has recommended that five Delaware artificial reef sites, currently permitted by the U.S. Corps of Engineers in the Exclusive Economic Zone (EEZ), be designated as Special Management Zones (SMZs) under the regulations implementing the Council's Summer Flounder, Scup and Black Sea Bass Fishery Management Plan (FMP).
The summer flounder, scup, and black sea bass fisheries are managed cooperatively under the provisions of the FMP developed by the Council and the Atlantic States Marine Fisheries Commission, in consultation with the New England and South Atlantic Fishery Management Councils. The management units specified in the FMP include summer flounder (Paralichthys dentatus) in U.S. waters of the Atlantic Ocean from the southern border of North Carolina (NC) northward to the U.S./Canada border, and scup (Stenotomus chrysops) and black sea bass (Centropristis striata) in U.S. waters of the Atlantic Ocean from 35deg 13.3' N. lat. (the latitude of Cape Hatteras Lighthouse, Buxton, NC) northward to the U.S./Canada border.
The Council prepared the FMP under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations implementing the FMP appear at 50 CFR part 648, subparts A (general provisions), G (summer flounder), H (scup), and I (black sea bass). General regulations governing fisheries of the Northeastern U.S. also appear at 50 CFR part 648. States manage these three species within 3 nautical miles (4.83 km) of their coasts, under the Commission's plan for summer flounder, scup, and black sea bass. The applicable species-specific Federal regulations govern vessels and individual fishermen fishing in Federal waters of the EEZ, as well as vessels possessing a summer flounder, scup, or black sea bass Federal charter/party vessel permit, regardless of where they fish.
Special Management Zone Measures Background
The DFW requested in June 2011 that the Council designate five artificial reef sites, currently permitted by the U.S. Corps of Engineers in the EEZ, as SMZs under the regulations implementing the Council's FMP. The SMZ request noted that the DFW has received complaints from hook-and-line anglers regarding fouling of their fishing gear in commercial pots and lines on ocean reef sites for more than 10 years. It also noted that the U.S. Fish and Wildlife Service (FWS) Sportfish Restoration Program (SRP) had notified DFW that these gear conflicts are not consistent with the objectives of the SRP program, which provides funding for the building and maintenance of the artificial reefs. In order to comply with the goals of the SRP, the FWS is requiring that state artificial reef programs be able to limit gear conflicts by state regulations in state waters or by SMZs for sites in the EEZ.
The Council process for devising SMZ management measures is to recommend measures to NMFS for rulemaking, and is described in the following section. All meetings are open to the public and the materials utilized during such meetings, as well as any documents created to summarize the meeting results, are public information and typically posted on the Council's Web site (www.mafmc.org) or are available from the Council by request. Extensive background on the SMZ management measures recommendation process is therefore not repeated in this preamble.
The SMZ recommendations from the Council were established under the FMP's black sea bass provisions (Sec. 648.148). A monitoring committee, consisting of representatives from the Council, NMFS Greater Atlantic Regional Fisheries Office, and NMFS Northeast Fisheries Science Center was formed to review the DFW SMZ request. The FMP's implementing regulations require the monitoring committee to review scientific and other relevant information to evaluate the SMZ
Page 35142
requests in the form of a written report, considering the following criteria:
(1) Fairness and equity;
(2) Promotion of conservation;
(3) Avoidance of excessive shares;
(4) Consistency with the objectives of Amendment 9 to the FMP, the Magnuson-Stevens Act, and other applicable law;
(5) The natural bottom in and surrounding potential SMZs; and
(6) Impacts on historical uses.
The Council then considered the monitoring committee's recommendations and any public comment in finalizing its recommendations. The Council forwarded its final recommendations to NMFS for review. NMFS is required to review the Council's recommendations to ensure that they are consistent with the FMP and all applicable laws and Executive Orders before ultimately implementing measures for Federal waters.
The timeline for establishing the SMZs is summarized here: The DFW requested SMZ status for the artificial reefs in June 2011; the Council and NMFS established a monitoring committee to review the request in April 2012; the monitoring committee provided a report to the Council evaluating the SMZ request in October 15-18, 2012, in Long Branch, New Jersey, and December 10-13, 2012, in Baltimore, Maryland.
Following these meetings, the Council held three public hearings on the proposed SMZs (Ocean City, Maryland, January 15, 2013; Lewes, Delaware, January 16, 2013; and Toms River, New Jersey, January 17, 2013), and final recommendations on the SMZs were made by the Council at its February 12-13, 2013, meeting in Hampton, Virginia. NMFS subsequently has reviewed the Council's recommendations through the development of an EA and this proposed rule.
Proposed SMZ Measures
NMFS is proposing the Council's recommended measures that would apply in the Federal waters of the EEZ and to all vessels: That all five Delaware artificial reefs, including a 0.46-km buffer around each artificial reef, be established as year-round SMZs, and within the established areas of the SMZs, all vessels would only be allowed to conduct fishing with hook and line and spear (including the taking of fish by hand). The five designated SMZ reef areas are U. S. Army Corps of Engineers permit Delaware artificial reef sites 9, 10, 11, 13, and 14. The five Delaware artificial reef sites are off the coast of Delaware at various distances from approximately 4 to 58 nautical miles (7.4 to 107.0 km), rectangular in shape, and encompass areas 3.21 to 4.11 square km.
The boundaries of the proposed SMZs artificial reef sites, including their buffers, encompass 7.4 to 8.8 square km, and are in Federal waters bounded by the following coordinates connected by straight lines in the sequence specified in Tables 1-5 below (coordinates include a 500-yard (0.46-km) squared-off buffer placed around each artificial reef site).
In order to facilitate the codification of the coordinates for the five SMZ reef areas, this rule proposes to re-organize 50 CFR 648.148 in its entirety. This rule would to redesignate the special management zone designation criteria and process provisions, currently at 50 CFR 648.148(a)-(e), in 50 CFR 648.148(a). The coordinates of the five SMZ reef areas proposed to be created by this rule would be codified at 50 CFR 648.148(b). The re-organization of the existing regulations concerning the special management zones designation criteria and process into CFR 648.148(a) is a change only to the format; no substantive changes are intended or proposed for those provisions. NMFS also proposes to add new Sec. 648.14(p)(1)(vi) to cross reference to the new coordinates at Sec. 648.148(b).
Table 1--Reef Site 9
------------------------------------------------------------------------
Corner N. Latitude W. Longitude
------------------------------------------------------------------------
9SE................................... 38deg39.71016 -74deg59.0883
' '
9SW................................... 38deg39.82578 -75deg1.11264
' '
9NW................................... 38deg41.1048' -75deg0.63288
'
9NE................................... 38deg41.03244 -74deg58.4509
' 8'
9SE................................... 38deg39.71016 -74deg59.0883
' '
------------------------------------------------------------------------
Table 2--Reef Site 10
------------------------------------------------------------------------
Corner N. Latitude W. Longitude
------------------------------------------------------------------------
10SE.................................. 38deg35.93706 -74deg55.4440
' 8'
10SW.................................. 38deg36.0759' -74deg57.5786
4'
10NW.................................. 38deg37.36314 -74deg57.0181
' 2'
10NE.................................. 38deg37.21938 -74deg54.9647
' 4'
10SE.................................. 38deg35.93706 -74deg55.4440
' 8'
------------------------------------------------------------------------
Table 3--Reef Site 11
------------------------------------------------------------------------
Corner N. Latitude W. Longitude
------------------------------------------------------------------------
11SE.................................. 38deg39.61578 -74deg42.8146
' 2'
11SW.................................. 38deg39.7797' -74deg45.2048
4'
11NW.................................. 38deg41.11092 -74deg44.7347
' 4'
11NE.................................. 38deg40.97472 -74deg42.3459
' '
11SE.................................. 38deg39.61578 -74deg42.8146
' 2'
------------------------------------------------------------------------
Table 4--Reef Site 13
------------------------------------------------------------------------
Corner N. Latitude W. Longitude
------------------------------------------------------------------------
13SE.................................. 38deg29.87118 -74deg30.3481
' 8'
13SW.................................. 38deg30.00876 -74deg31.9300
' 8'
13NW.................................. 38deg31.83384 -74deg31.0996
' 8'
13NE.................................. 38deg32.04756 -74deg29.5839
' '
13SE.................................. 38deg29.87118 -74deg30.3481
' 8'
------------------------------------------------------------------------
Table 5--Reef Site 14
------------------------------------------------------------------------
Corner N. Latitude W. Longitude
------------------------------------------------------------------------
14SE.................................. 38deg31.55286 -73deg47.7524
' 4'
14SW.................................. 38deg31.55286 -73deg
' 0.08164'
14NW.................................. 38deg32.94684 -73deg50.0815
' 8'
14NE.................................. 38deg32.94714 -73deg47.7523
' 2'
14SE.................................. 38deg31.55286 -73deg47.7524
' 4'
------------------------------------------------------------------------
Figure 1. shows the location of the five proposed artificial reef sites off the coast of Delaware.
Page 35143
GRAPHIC TIFF OMITTED TP19JN14.001
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA), which is included in the EA and supplemented by information contained in the preamble to this proposed rule. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the IRFA follows. A copy of this analysis is available from the Greater Atlantic Regional Fisheries Office (see ADDRESSES).
Federal Rules Which May Duplicate, Overlap, or Conflict With This Proposed Rule
This proposed action will not duplicate, overlap, or conflict with any other Federal rules. NMFS did not consider any alternatives that would provide additional fishing opportunities beyond what was recommended by the Council because of the through consideration of alternatives by the SMZ monitoring committee and Council.
Description of the Reasons Why Action by the Agency Is Being Considered
DFW requested and the Council has recommended that five Delaware artificial reef sites, currently permitted by the U.S. Corps of Engineers in the EEZ, be designated as SMZs to limit recreational/
commercial gear conflicts on the artificial reefs, and to maintain FWS SRP funding for the building and maintenance of the artificial reefs.
Statement of the Objectives of and the Legal Basis for This Proposed Rule
To eliminate current and/or future potential for recreational/
commercial gear conflicts on the five Delaware artificial reefs in order to maintain access to the reefs for recreational fishing. This action is proposed through the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq.
Description of the Projected Reporting, Record-Keeping, and Other Compliance Requirements of the Proposed Rule
This action does not introduce any new reporting, recordkeeping, or other compliance requirements.
Description of an Estimate of the Number of Small Entities To Which the Proposed Rule Would Apply
The Small Business Administration (SBA) defines a small commercial finfish fishing business as a firm with annual receipts (gross revenues) of up to $19 million. A small commercial shellfishing business is a firm with annual receipts of up to $5 million and small for-hire recreational fishing businesses are defined as firms with receipts of up to $7 million.
Having different size standards for different types of fishing activities creates difficulties in categorizing businesses that participate in multiple fishing related activities. For purposes
Page 35144
of this assessment, business entities have been classified into the SBA-defined categories based on the activity that produced the highest percentage of average annual gross revenues from 2010--2012. This classification is now possible because vessel ownership data have been added to Northeast permit database. The ownership data identify all individuals who own fishing vessels. Using this information, vessels can be grouped together according to common owners. The resulting groupings were treated as a fishing business for purposes of this analysis. Revenues summed across all vessels in a group and the activities that generate those revenues form the basis for determining whether the entity is a large or small business.
This rule would apply to all Federal permit holders except recreational for-hire permit holders. Thus, the affected business entities of concern are businesses that hold commercial Federal fishing permits with the exception of those that fish with hook and line. While all business entities that hold commercial Federal fishing permits could be directly affected by these regulations, not all business entities that hold Federal fishing permits fish in the areas identified as potential SMZs. Those who actively participate, i.e., land fish, in the areas identified as potential SMZs would be the group of business entities that are directly impacted by the regulations.
The number of possible affected entities as well as an enumeration of the number of commercial fishing vessels with recent activity at the five reef sites, by gear type are described in detail in Table 6.
Table 6--Number of Reported Vessel Trip Reports of Commercial Fishing Trips Within 0.46 km of the Reef Sites, by Gear Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reef site and gear type
------------------------------------------------------------------------------------------
10 11 13 14
9 -----------------------------------------------------------------------------
Trawl Pot/Trap Pot/Trap Pot/Trap Dredge Trawl
--------------------------------------------------------------------------------------------------------------------------------------------------------
-
0 0 0 10 3 0 0
-
0 0 1 25 0 0 0
-
0 0 0 7 2 0 0
-
0 0 0 0 1 0 0
-
0 0 0 4 10 0 0
-
0 0 0 8 14 17 7
-
0 1 0 3 12 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
NMFS considered two option under this action, the no buffer and two SMZ buffer zones around the five artificial reefs. The no buffer alternative would have had no effect on the commercial vessels operating near the artificial reefs, so assessments of commercial activity within the 500-yard (0.46 km) buffer zone is included in this IRFA summary. The buffer area was recommended to improve enforcement of the recommended SMZ management measures for the artificial reefs. The 0.46-km buffer is the preferred measure. The no buffer alternative and an alternative for a 1,000-yard (0.91-km) buffer were not preferred because they were considered either too small for enforcement to effectively protect the SMZs (no buffer) or needlessly too large (1,000-yard (0.91-km) buffer) and disruptive to commercial fishing near the artificial reefs.
During 2008, 2009, and 2010, only 2 commercial vessels reported landings within 0.46 km of the reef sites in each of these years, 1 vessel reported landings in two of the three years, and 12 vessels reported landings in only one of the three years. This implies a total of 15 unique commercial vessels reported landings within 0.46 km of the reef sites from 2008-2010.
Based on the ownership data classification process described above, all of the directly affected participating commercial fishing vessels were found to be unique fishing business entities. The ownership data indicated that no two affected vessels were owned by the same business entity. Total revenue earned by these business was derived from both shellfishing and finfishing, but the highest percentage of average annual revenue for the majority of the businesses was from shellfishing. Of the 15 unique fishing business entities potentially estimated to be affected by implementation of a 0.46-km buffer around the five reef sites, 9 entities earned the majority of their total revenues (i.e., from all species and areas fished) from landings of shellfish, and 6 entities earned the majority of the their total revenues from landings of finfish. Thus, under the 0.46-km buffer alternative, nine of the potentially affected businesses are classified as shellfishing business entities and six as finfishing business entities.
Average annual gross revenue estimates calculated from the most recent 3 years of available Northeast regional dealer data (2010-2012) indicate that only one of the potentially affected shellfishing business entities under the preferred 0.46-km buffer alternative would be considered large according to the SBA size standards. In other words, one business, classified as a shellfishing business, averaged more than $5 million annually in gross revenues from all of its fishing activities during 2010-2012. Therefore, under the preferred 0.46-km buffer alternative, 14 of the 15 potentially affected business entities are considered small (8 shellfish and 6 finfish) and 1 business entity is considered large (shellfish).
Table 7 shows the number of potentially affected business entities by percent of total average annual gross revenue landed within 0.46 km of the reef sites.
Page 35145
Table 7--Number of Potential Business Entities Affected by Percent of Total Average Annual Gross Revenue Landed
Within 0.46 km of the Reef Sites
----------------------------------------------------------------------------------------------------------------
Percent of total average annual gross revenue (2010-2012)
Business entity ---------------------------------------------------------------
9, 10, 11, 13, and 14 in the area of the U.S. Exclusive Economic Zone. From January 1 through December 31 of each year, no fishing vessel or person on a fishing vessel may fish in the Delaware Special Management Zones with any gear except hook and line and spear fishing (including the taking of fish by hand). The Delaware Special Management Zones are defined by straight lines connecting the following points N. latitude and W. longitude in the order stated:
(1) Delaware artificial reef 9:
(i) 38deg39.71016' lat., 74deg59.0883' long.;
(ii) 38deg39.82578' lat., 75deg1.11264' long;
(iii) 38deg41.1048' lat., 75deg0.63288' long; and
(iv) 38deg41.03244' lat., 74deg58.45098' long; and then ending at the first point.
(2) Delaware artificial reef 10:
(i) 38deg35.93706' lat, 74deg55.44408' long;
(ii) 38deg36.0759' lat., 74deg57.57864' long;
(iii) 38deg37.36314' lat., 74deg57.01812' long; and
(iv) 38deg37.21938' lat., 74deg54.96474' long; and then ending at the first point.
(3) Delaware artificial reef 11:
(i) 38deg39.61578' lat., 74deg42.81462' long.;
(ii) 38deg39.7797' lat.; 74deg45.20484' long.;
(iii) 38deg41.11092' lat., 74deg44.73474' long.; and
(iv) 38deg40.97472' lat., 74deg42.3459' long.; and then ending at the first point.
(4) Delaware artificial reef 13:
(i) 38deg29.87118' lat.; SE. 74deg30.34818' long.;
(ii) 38deg30.00876' lat., 74deg31.93008' long.;
(iii) 38deg31.83384' lat., 74deg31.09968' long.; and
(iv) 38deg32.04756' lat., l74deg29.5839' long.; and then ending at the first point.
(5) Delaware artificial reef 14:
(i) 38deg31.55286' lat., 73deg47.75244' long.;
(ii) 38deg31.55286' lat., 73deg50.08164' long.;
(iii) 38deg32.94684' lat.; 73deg50.08158' long.; and
(iv) 38deg32.94714' lat, 73deg47.75232' long.; and then ending at the first point.
FR Doc. 2014-14358 Filed 6-18-14; 8:45 am
BILLING CODE 3510-22-P
