Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery Off the Southern Atlantic States; Regulatory Amendment 19

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement management measures for black sea bass described in Regulatory Amendment 19 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP), as prepared by the South Atlantic Fishery Management Council (Council). Regulatory Amendment 19 specifies the acceptable biological catch (ABC), and the amendment and this final rule revise the optimum yield (OY), the commercial and recreational annual catch limits (ACLs), and the recreational annual catch target (ACT) for black sea bass harvested in or from the South Atlantic exclusive economic zone (EEZ). This final rule also establishes an annual prohibition on the use of black sea bass pots in the South Atlantic from November 1 through April 30. The purpose of this rule is to provide socio-economic benefits to snapper-grouper fishermen and communities that utilize the snapper-grouper resource, while maintaining fishing mortality at sustainable levels according to the best scientific information available. The rule also prevents interactions between black sea bass pot gear and whales listed under the Endangered Species Act (ESA) during periods of large whale migrations and during the northern right whale calving season off of the southeastern coast.

DATES:

This rule is effective October 23, 2013 except for the amendments to §§ 622.190(a)(5) and 622.193(e)(2) which are effective September 23, 2013.

ADDRESSES:

Electronic copies of Regulatory Amendment 19, which includes an environmental assessment, a Regulatory Flexibility Act analysis, and a regulatory impact review, may be obtained from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov/sf/pdfs/SGRegAmend19.pdf.

FOR FURTHER INFORMATION CONTACT:

Rick DeVictor, Southeast Regional Office, telephone: 727-824-5305, or email: rick.devictor@noaa.gov.

SUPPLEMENTARY INFORMATION:

The snapper-grouper fishery of the South Atlantic, which includes black sea bass, is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On July 2, 2013, NMFS published a proposed rule for Regulatory Amendment 19 and requested public comment (78 FR 39700). The proposed rule and Regulatory Amendment 19 outline the rationale for the actions contained in this final rule. A summary of the actions implemented by this final rule is provided below.

Management Measures Contained in This Final Rule

This final rule revises the commercial and recreational ACLs for black sea bass harvested in or from the South Atlantic EEZ and establishes an annual prohibition on the use of black sea bass pots in the South Atlantic from November 1 through April 30.

Black Sea Bass ACLs

For black sea bass, Regulatory Amendment 19 changes the ACL and revises the ACL and OY formula from OY = ABC = ACL to OY = ACL. For 3 consecutive fishing years beginning in 2013-2014, and including 2014-2015 and 2015-2016, the Council set the ACL value equal to the 2015-2016 fishing year ABC value, which is 1,814,000 lb (822,817 kg). Beginning with the 2016-2017 fishing year, the stock ACL value would be decreased to the yield at 75 percent F_MSY, which equals 1,756,450 lb (796,712 kg), round weight.

This final rule revises the commercial ACL from the current 309,000 lb (140,160 kg), gutted weight, 364,620 lb (165,389 kg), round weight, to: 661,034 lb (299,840 kg), gutted weight, 780,020 lb (353,811 kg), round weight for the 2013-2014, 2014-2015, and 2015-2016 fishing years; and 640,063 lb (290,328 kg), gutted weight, 755,274 lb (342,587 kg), round weight, for the 2016-2017 fishing year and subsequent fishing years. The recreational ACL is revised from the current 409,000 lb (185,519 kg), gutted weight; 482,620 lb (218,913 kg), round weight, to: 876,254 lb (397,462 kg), gutted weight, 1,033,980 lb (469,005 kg), round weight for the 2013-2014, 2014-2015, and 2015-2016 fishing years; and 848,455 lb (384,853 kg), gutted weight, 1,001,177 lb (454,126 kg), round weight, for the 2016-2017 fishing year and subsequent fishing years.

Black Sea Bass Pot Gear Seasonal Prohibition

This rule establishes a prohibition on the use of black sea bass pots from November 1 through April 30, each year. The large whale migration period and the right whale calving season in the South Atlantic extends from approximately November 1 through April 30, each year. Since 2010, black sea bass harvest levels have reached the commercial ACL, triggering accountability measures (AMs) to close the commercial sector. Because these in-season commercial AM closures have occurred prior to November 1, actions to prevent black sea bass pot gear from being in the water during the higher whale concentration time period have been unnecessary. However, NMFS has determined that the increase in the commercial ACL contained in this rule could extend the commercial black sea bass fishing season beyond November 1 and into a time period when a higher concentration of endangered whales are known to migrate through black sea bass fishing grounds.

The seasonal sea bass pot prohibition is a precautionary measure to prevent interactions between black sea bass pot gear and whales during large whale migrations and during the right whale calving season off the U.S. southeastern coast. During this closure, no person is allowed to harvest or possess black sea bass in or from the South Atlantic EEZ either with sea bass pots or from a vessel with sea bass pots on board. In addition, sea bass pots must be removed from the water in the South Atlantic EEZ before November 1, and may not be on board a vessel in the South Atlantic EEZ during this closure.

Additional Management Measures Contained in Regulatory Amendment 19

Regulatory Amendment 19 also revises the black sea bass recreational ACT. The black sea bass recreational ACT was set at 357,548 lb (162,181 kg) gutted weight, 421,907 lb (191,374 kg), round weight, in the Amendment 18A final rule (75 FR 82280, December 30, 2010). Regulatory Amendment 19 increases the recreational ACT to 766,021 lb (347,461 kg), gutted weight, 903,905 lb (410,004 kg), round weight, for the 2013-2014, 2014-2015, and 2015-2016 fishing years and to 741,719 lb (336,438 kg), gutted weight, 875,228 (396,997 kg), round weight, for the 2016-2017 fishing year and subsequent fishing years. Because the ACT is not used to trigger an AM, it is not codified in the regulatory text.

Comments and Responses

A total of nine comments were received on the proposed rule for Regulatory Amendment 19 from fishers, a fishing association, three non-governmental organizations, and a Federal agency. Two commenters supported the increase in the black sea bass ACL. Three commenters supported the seasonal prohibition on the use of black sea bass pots. The Federal agency stated it had no comment. Specific comments related to the actions contained in Regulatory Amendment 19 and the proposed rule, and NMFS' respective responses, are summarized and responded to below.

Comment 1: Black sea bass should be open year-round instead of having a sector close in-season as a result of AMs being triggered.

Response: The Magnuson-Stevens Act requires the Council and NMFS to set ACLs and establish measures to ensure their accountability (AMs). The Council and NMFS established an ACL for black sea bass that is further divided for the recreational and commercial sectors, with AMs to close the harvest when each sector's ACL is reached or projected to be reached. The Council and NMFS have determined that the in-season sector closures (AMs) are necessary to minimize potential overages of the ACLs and to prevent overfishing.

Comment 2: The commercial harvest of black sea bass using pots should be open year-round, as long as the commercial ACL has not been met. Regulations that are “whale friendly” have already been implemented, including a requirement to return pots to shore at the conclusion of each trip and a limit of 35 pots per vessel.

Response: The Council and NMFS have determined that a seasonal black sea bass pot prohibition, along with the existing regulations related to pot gear, are necessary to prevent interactions between black sea bass pot gear and whales during periods of large whale migrations and during the right whale calving season off the U.S. southeastern coast. The large whale migration period and the right whale calving season in the South Atlantic occurs from approximately November 1 through April 30, each year. Since 2010, black sea bass harvest levels have reached the commercial ACL during the fishing year, thereby triggering in-season AMs to close the commercial sector prior to November 1. Therefore, Council actions to prevent black sea bass pot gear from being in the water during periods of higher whale concentrations have been unnecessary. However, NMFS has determined that the increase in the commercial ACL implemented through this rule could extend the commercial black sea bass fishing season beyond November 1, and into a period when a higher concentration of endangered whales are known to migrate through black sea bass fishing grounds. NMFS notes that if the commercial ACL is not reached or projected to be reached by November 1 of each year, then harvest of black sea bass by the commercial sector may continue with hook-and-line gear until the commercial ACL is reached.

According to the NMFS List of Fisheries, black sea bass pots are considered to pose an entanglement risk to marine mammals. The South Atlantic black sea bass commercial pot component of the snapper-grouper fishery is included in the Atlantic mixed species trap/pot fisheries grouping, which is classified as a Category II in the proposed rule for the 2013 List of Fisheries (78 FR 23708, April 22, 2013). Category II means that there is an occasional incidental mortality and serious injury of marine mammals associated with that specific fishing gear type. Therefore, the seasonal black sea bass pot seasonal prohibition implemented through this rule is a precautionary measure to prevent interactions between black sea bass pot gear and whales during periods of large whale migrations and during the right whale calving season off the U.S. southeastern coast.

Classification

The Regional Administrator, Southeast Region, NMFS has determined that this final rule is necessary for the conservation and management of black sea bass in the South Atlantic and is consistent with Regulatory Amendment 19, the FMP, the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

A final regulatory flexibility analysis (FRFA) was prepared for this action. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant economic issues raised by public comment, NMFS' responses to those comments, and a summary of the analyses completed to support the action. The FRFA follows.

No public comments specific to the IRFA were received and, therefore, no public comments are addressed in this FRFA. No changes in the final rule were made in response to public comments.

On June 20, 2013, the Small Business Administration (SBA) issued a final rule revising the small business size standards for several industries effective July 22, 2013 (78 FR 37398). The rule increased the size standard for Finfish Fishing from $4.0 to $19.0 million, Shellfish Fishing from $4.0 to $5.0 million, and Other Marine Fishing from $4.0 to $7.0 million. The SBA did not revise the size standard for for-hire fishing and thus it remains at $7 million. Pursuant to the Regulatory Flexibility Act, and prior to SBA's June 20, 2013, final rule, an IRFA was developed for this action using SBA's former size standards. Subsequent to the June 20, 2013 rule, NMFS has reviewed the FRFA prepared for this action in light of the new size standards. Under the former, lower size standards, all entities subject to this action were considered small entities, thus they all would continue to be considered small under the new standards. NMFS has determined that the new size standards do not affect the analyses prepared for this action.

NMFS agrees that the Council's choice of preferred alternatives would best achieve the Council's objectives for Regulatory Amendment 19 while minimizing, to the extent practicable, the adverse effects on fishers, support industries, and associated communities. The preamble of the proposed rule and this rule provide a statement of the need for and objectives of this final rule, and it is not repeated here.

The Magnuson-Stevens Act provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this rule.

NMFS expects this final rule to directly affect commercial fishermen and for-hire vessel operators in the South Atlantic snapper-grouper fishery. The SBA established small entity size criteria for all major industry sectors in the U.S., including fish harvesters. A business involved in fish harvesting is classified as a small business if independently owned and operated, is not dominant in its field of operation (including its affiliates), and its combined annual receipts are not in excess of $19.0 million (NAICS code 114111, finfish fishing) for all of its affiliated operations worldwide. For for-hire vessels, all qualifiers apply except that the annual receipts threshold is $7.0 million (NAICS code 713990, recreational industries).

From 2007 through 2011, an annual average of 240 vessels with valid commercial South Atlantic snapper-grouper permits landed at least 1 lb (0.45 kg) of black sea bass. These vessels generated annual dockside revenues of approximately $4.0 million (2011 dollars) from all species caught on the same commercial trips as black sea bass, of which about $1.0 million (2011 dollars) were attributable to black sea bass. Each commercial vessel, therefore, generated an annual average of approximately $17,000 in gross revenues, of which $4,000 were from black sea bass. Based on revenue information, all commercial vessels affected by the rule can be considered small entities.

From 2007 through 2012, an annual average of 1,855 vessels had a valid South Atlantic Charter/Headboat for Snapper-Grouper permit to operate in the for-hire component of the recreational sector in the snapper-grouper fishery. As of April 23, 2013, 1,485 vessels held South Atlantic Charter/Headboat for Snapper-Grouper permits and about 75 of those are estimated to have operated as headboats in 2013. The for-hire fleet consists of charter boats, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. Average annual revenues (2011 dollars) per charter boat are estimated to be $126,032 for Florida vessels, $53,443 for Georgia vessels, $100,823 for South Carolina vessels, and $101,959 for North Carolina vessels. For headboats, the corresponding estimates are $209,507 for Florida vessels and $153,848 for vessels in the other three states. For state headboat estimates other than Florida, the headboat sample sizes were small and therefore providing more detailed revenue estimate information on a state-by-state basis would potentially disclose sensitive financial information and so aggregated economic information is provided. Based on these average revenue figures, all for-hire operations that would be affected by the rule can be considered small entities.

NMFS expects the final rule to directly affect all federally-permitted commercial vessels harvesting black sea bass and for-hire vessels that operate in the South Atlantic snapper-grouper fishery. All directly affected entities have been determined, for the purpose of this analysis, to be small entities. Therefore, NMFS determines that this final rule will affect a substantial number of small entities.

Because NMFS determines that all entities expected to be affected by the actions in this final rule are small entities, the issue of disproportional effects on small versus large entities does not arise in the present case.

This final rule will increase the black sea bass stock ACL from its current level of 847,000 lb (384,193 kg), round weight, to 1,814,000 lb (822,817 kg), round weight, for the 2013-2014, 2014-2015, and 2015-2016 fishing years and to 1,756,450 lb (796,713 kg), round weight, for the 2016-2017 fishing year, and subsequent fishing years. In addition, this final rule will prohibit retention, possession, and fishing for black sea bass using black sea bass pot gear, from November 1 through April 30, each year.

Increasing the black sea bass stock ACL will also increase the commercial and recreational sector ACLs based on the current allocation ratio of 43 percent for the commercial sector and 57 percent for the recreational sector. Current NMFS modeling projections suggest that, even with relatively large increases in the commercial ACL, the commercial fishing season for black sea bass would likely close before the end of each fishing year. If the commercial ACL is fully harvested each year, the commercial sector will generate additional revenues (in 2011 dollars) of about $939,000 in each of the 2013-2014, 2014-2015, and 2015-2016 fishing years and approximately $883,000 in the 2016-2017 fishing year and subsequent fishing years. For the 2013-2014, 2014-2015, and 2015-2016 fishing years, the net present value of increased revenues to the commercial sector will be approximately $2.5 million. As a result of relatively large increases in commercial revenues, profits to commercial vessels will likely increase. These revenue estimates are for the short-term as there is increasing variability in the conditions beyond 3 years which would therefore not result in accurate estimates of revenue beyond 3 years.

The November through April prohibition on the use of black sea bass pots for harvesting black sea bass is intended to prevent interactions between black sea bass pot gear and whales listed under the ESA during large whale migrations and during the right whale calving season off the southeastern coast. In theory, this prohibition is expected to negatively affect the revenues and profits of the 32 commercial vessels which currently possess black sea bass pot endorsements to their Federal commercial snapper-grouper permits. Since the 2010-2011 fishing season, however, commercial fishing for black sea bass has closed before November 1 each year. Thus, the November through April prohibition on the use of black sea bass pots will mainly constrain the revenue increases associated with an increased commercial ACL for 32 commercial vessels which possess black sea bass pot endorsements.

However, the seasonal black sea bass pot prohibition will greatly benefit fishermen using other gear types, such as vertical lines, because their fishing season will be extended as a result of this rule. Despite the ACL increases, closures to commercial (and recreational) harvest of black sea bass are still projected to occur as a result of the sectors reaching their respective ACLs during the fishing year. Therefore, revenues forgone by vessels using black sea bass pots will likely be gained by vessels using other gear types. Thus, the black sea bass pot prohibition will mainly have distributional effects within the commercial sector, with the overall industry revenues and likely profits expected to increase.

NMFS modeling projections suggest that even with large ACL increases, the recreational sector for black sea bass will experience fishing season closures during the fishing year as a result of the sector reaching the recreational ACL. These closures will likely occur starting in December of each fishing year. Relative to the no action alternative, however, the ACL increases will extend the recreational fishing season each year, allowing for-hire vessels to take more fishing trips. These additional trips will increase total for-hire vessel profits (in 2011 dollars) by approximately $354,000 each year starting with the 2013-2014 fishing year, of which about $234,000 will be for headboats and $120,000 for charter boats. Over the 2013-2014, 2014-2015, and 2015-2016 fishing years, the net present value of these profit increases will be approximately $930,000, of which $614,000 will be for headboats and $316,000 for charter boats. These revenue estimates are for the short-term as there is increasing variability in the conditions beyond 3 years which would therefore not result in accurate estimates of revenue beyond 3 years.

Additionally, Regulatory Amendment 19 will revise the recreational ACT. The formula for calculating the ACT from the ACL will not change, but the ACT level will increase with an increase in the ACL. Previously, and in this final rule, the recreational ACT has been used by the Council and NMFS to monitor recreational harvest and not as a trigger for AMs. Thus the revised ACT is expected to have no effects on the revenues and profits of for-hire vessels. If, in the future, the ACT is used to trigger AMs, the ACT increase accompanying the ACL increase will reduce the probability of triggering an AM associated with an in-season closure.

The following discussion analyzes the alternatives that were not selected as preferred by the Council.

Four alternatives, including the preferred alternative, were considered for revising the stock ACL for black sea bass. The first alternative, the no action alternative, would retain the current ACL of 847,000 lb (384,193 kg), round weight. In principle, this alternative would have no short-run effects on the revenues and profits of commercial and for-hire vessels. However, with the developing derby conditions in the commercial and recreational sectors that harvest black sea bass, both the commercial and recreational fishing seasons would continue to shorten over time, eventually adversely affecting the revenues and profits of commercial and for-hire vessels. Moreover, this alternative would result in forgoing the economic benefits expected of the preferred alternative to increase the stock ACL. In addition to the economic rationale just presented, the Council noted that this alternative would not be based on the best available science resulting from the recent stock assessment update for black sea bass that would allow for a higher ACL. As for the November through April black sea bass pot prohibition introduced in the preferred alternative, the Council considered it important for addressing the need to prevent interactions between black sea bass pot gear and ESA-listed whales during large whale migrations and right whale calving season. However, the Council recognized that the black sea bass pot prohibition may be modified in the future and is therefore considering a modification to the prohibition in Regulatory Amendment 16 to the FMP which is currently under development.

The second alternative to increase the stock ACL would increase the ACL from its current level of 847,000 lb (384,193 kg), round weight, to 2,133,000 lb (967,513 kg), round weight, in the 2103-2014 fishing year, 1,992,000 lb (903,557 kg), round weight, in the 2014-2015 fishing year, and 1,814,000 lb (822,817 kg), round weight, in the 2015-2016 fishing year and beyond. In addition, this alternative would prohibit the use of black sea bass pots for the same period as the preferred alternative and increase the recreational ACT. This alternative would result in higher revenues and profits for commercial and for-hire vessels than the preferred alternative mainly because it would provide for higher ACLs in the 2013-2014 and 2014-2015 fishing years. Although the effects of this alternative on commercial vessels using black sea bass pots would be the same as those of the preferred alternative, the effects on commercial vessels using other gear types would be different. With the seasonal black sea bass pot prohibition in place, the 2013-2014 and 2014-2015 fishing seasons for users of other gear types would be longer, thus affording them higher revenues and profits than the preferred alternative. A negative consequence of this alternative is its higher likelihood (relative to the preferred alternative) of overfishing the stock over time. As has been experienced in the snapper-grouper fishery, overfishing requires more restrictive regulations with their associated adverse consequences on the revenues and profits of commercial and for-hire vessels. The Council therefore rejected this alternative because it would pose a high probability of overfishing the black sea bass stock. The revised recreational ACT levels would have no direct effects on the revenues and profits of for-hire vessels.

The third alternative would increase the stock ACL from its current level of 847,000 lb (384,193 kg), round weight, to 1,756,450 lb (796,713 kg), round weight, in the 2013-2014 fishing year and beyond. In addition, this alternative would similarly prohibit the seasonal use of black sea bass pots, like the preferred alternative, and increase the recreational ACT. This alternative would maintain the same ACL starting in the 2013-2014 fishing season but at lower levels in the initial 3 years than the preferred alternative. Thus, this alternative would be expected to result in lower revenues and profits than the preferred alternative. The prohibition on the use of black sea bass pots would extend the overall commercial fishing season but for a shorter duration than what would be expected under the preferred alternative. Revenue and profit increases to vessels using other gear types would be less than those under the preferred alternative. The Council did not select this as the preferred alternative because it would provide for lower economic benefits than the preferred alternative. As with the preferred alternative, the revised recreational ACT level would have no direct effects on the revenues and profits of for-hire vessels.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as small entity compliance guides. As part of the rulemaking process, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. The fishery bulletin will be sent to all interested parties.

The NOAA Assistant Administrator for Fisheries (AA) finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for the revised commercial and recreational ACLs located at §§ 622.190(a)(5) and 622.193(e)(2) in this final rule. A 30-day delay in effectiveness of these management measures would be contrary to the public interest because the commercial and recreational sectors could reach their respective ACLs sooner than anticipated, and possibly within the 30-day delay period, without the increase in the ACLs. As described in Regulatory Amendment 19, with the implementation of the revised ACLs in this rule, the black sea bass commercial sector is projected to reach its ACL by October 10, 2013, and the recreational sector is projected to reach its ACL by August 29, 2013. If these revised ACLs are not implemented immediately, the commercial and recreational sectors could meet the current ACLs triggering unnecessary in-season closures and thus undermine the intent of the rule. To avoid in-season closures and re-openings of the commercial and recreational sectors later in the season based on the increased ACLs, which can be both burdensome and confusing to the public, these ACLs need to be effective upon publication of this final rule. The increased commercial and recreational ACLs will allow for additional harvest of black sea bass and will provide the opportunity for fishermen to achieve the OY for the black sea bass component of the snapper-grouper fishery, as required by National Standard 1 of the Magnuson-Stevens Act. This will help maximize socio-economic opportunities for black sea bass fishers.

For these reasons, the AA waives the 30-day delay in effectiveness of this final rule for §§ 622.190(a)(5) and 622.193(e)(2).

List of Subjects in 50 CFR Part 622

• Fisheries
• Fishing
• South Atlantic
• Black Sea Bass

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows:

PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC

1. The authority citation for part 622 continues to read as follows:

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

2. In § 622.183, paragraph (b)(6) is added to read as follows:

3. In § 622.190, paragraph (a)(5) is revised to read as follows:

4. In § 622.193, paragraph (e)(2) is revised to read as follows: