Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery Off the Southern Atlantic States; Regulatory Amendment 16, 95893-95903 [2016-31363]

Download as PDF Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations Classification The Assistant Administrator for Fisheries NOAA (AA), finds that good cause exists for the inseason orders to be issued without affording the public prior notice and opportunity for comment under 5 U.S.C. 553(b)(B) as such prior notice and opportunity for comments is impracticable and contrary to the public interest. Prior notice and opportunity for public comment is impracticable because NMFS has insufficient time to allow for prior notice and opportunity for public comment between the time the stock abundance information is available to determine how much fishing can be allowed and the time the fishery must open and close in order to harvest the appropriate amount of fish while they are available. The AA also finds good cause to waive the 30-day delay in the effective date, required under 5 U.S.C. 553(d)(3), of the inseason orders. A delay in the effective date of the inseason orders would not allow fishers appropriately controlled access to the available fish at that time they are available. This action is authorized by 50 CFR 300.97, and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 3636(b). Dated: December 22, 2016. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2016–31526 Filed 12–28–16; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 131113952–6999–02] RIN 0648–BD78 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; SnapperGrouper Fishery Off the Southern Atlantic States; Regulatory Amendment 16 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. rmajette on DSK2TPTVN1PROD with RULES AGENCY: VerDate Sep<11>2014 14:51 Dec 28, 2016 Jkt 241001 ACTION: Final rule. NMFS issues regulations to implement Regulatory Amendment 16 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP), as prepared and submitted by the South Atlantic Fishery Management Council (Council). This final rule revises the current seasonal prohibition on the use of black sea bass pot gear in the South Atlantic and adds an additional gear marking requirement for black sea bass pot gear. The purpose of this final rule is to reduce the adverse socioeconomic impacts from the current seasonal black sea bass pot gear prohibition while continuing to protect Endangered Species Act (ESA) listed North Atlantic right whales (NARW)in the South Atlantic. This final rule also helps to better identify black sea bass pot gear in the South Atlantic. DATES: This rule is effective January 30, 2017, except for the amendments to § 622.183(b)(6) that are effective December 29, 2016. ADDRESSES: Electronic copies of Regulatory Amendment 16, which includes an environmental impact statement (EIS), a Regulatory Flexibility Act (RFA) analysis, and a regulatory impact review, may be obtained from the Southeast Regional Office Web site at https://sero.nmfs.noaa.gov/ sustainable_fisheries/s_atl/sg/2013/reg_ am16/index.html. Comments regarding the burden-hour estimates, clarity of the instructions, or other aspects of the collection of information requirements contained in this final rule (see the Classification section of the preamble) may be submitted in writing to Adam Bailey, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701; or the Office of Management and Budget (OMB), by email at OIRA_ submission@omb.eop.gov, or by fax to 202–395–5806. FOR FURTHER INFORMATION CONTACT: Nikhil Mehta, telephone: 727–824– 5305, email: nikhil.mehta@noaa.gov. SUPPLEMENTARY INFORMATION: Black sea bass is in the snapper-grouper fishery and 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 SUMMARY: PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 95893 Conservation and Management Act (Magnuson-Stevens Act). On December 4, 2013, NMFS published a notice of intent to prepare a draft EIS for Regulatory Amendment 16 and requested public comment (78 FR 72968). On October 23, 2015, the notice of availability for the draft EIS was published and public comment was also requested (80 FR 64409). The notice of availability for the final EIS for Regulatory Amendment 16 published on July 1, 2016 (81 FR 43198). On August 11, 2016, NMFS published a proposed rule for Regulatory Amendment 16 and requested public comment (81 FR 53109). The proposed rule and Regulatory Amendment 16 outline the rationale for the actions contained in this final rule. A summary of the actions implemented by Regulatory Amendment 16 and this final rule is provided below. Management Measures Contained in this Final Rule This final rule implements modifications to the current black sea bass pot seasonal closure. This final rule also modifies the buoy line rope marking requirements for black sea bass pots. Black Sea Bass Pot Gear Seasonal Prohibition As established through Regulatory Amendment 19 to the FMP, black sea bass pot gear is prohibited in the South Atlantic exclusive economic zone (EEZ) annually from November 1 through April 30 (78 FR 58249, September 23, 2013). This final rule retains the November 1 through April 30 prohibition on the use of black sea bass pots but modifies the boundaries of the prohibition. This rule revises the South Atlantic EEZ-wide seasonal closure to a closure with two temporal and spatial components. The first closure period is for the months of November and April and the second closure period is for the months of December through March, each year. The first closure period is illustrated by Figure 1 below. During the November and April seasonal prohibition, the eastern boundary of the sea bass pot closed area off North and South Carolina is closer to shore than during the months of December through March. E:\FR\FM\29DER1.SGM 29DER1 95894 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations Figure 1. Black Sea Bass Pot Seasonal Prohibition During November and April. BO"W 7B'W Virginia North Carolina 34•N South Carolina Atlantic Ocean 32"N Seasonal Black Sea Bass Pot Prohibition Nov 1·30 and Apr 1-30 MM WN I 0 15 30 60 90 120 Nautical Mites 150 N + 78'W During the black sea bass pot seasonal prohibition from December through March, each year, the closure area is larger than during the seasonal VerDate Sep<11>2014 14:51 Dec 28, 2016 Jkt 241001 76'W prohibition during November and April, particularly off Georgia and Florida. Waters off the coast of Georgia and Florida represent the primary right PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 whale calving grounds in the South Atlantic EEZ. The black sea bass pot seasonal closure for December through March is illustrated in Figure 2 below. E:\FR\FM\29DER1.SGM 29DER1 ER29DE16.021</GPH> rmajette on DSK2TPTVN1PROD with RULES ft"W Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations 95895 Figure 2. Black Sea Bass Pot Seasonal Prohibition During December Through March. ao•w 82"W Virginia North Carolina 34•N South Carolina Atlantic Ocaan Seasonal Black Sea Bass Pot Prohibition Dec 1- Mar 31 MM I 0 15 30 60 90 120 Nautical Miles 30"N 150 N + Florida 28"N The alternatives considered in Regulatory Amendment 16 for the black sea bass pot seasonal prohibition were developed considering spatial, temporal, and environmental variables. Spatial variation in the distribution of right whales is influenced by environmental variables such as water VerDate Sep<11>2014 14:51 Dec 28, 2016 TB"W 78"W Jkt 241001 temperature, depth, and distance to shore. The closed areas in this final rule incorporate these environmental variables and spatial distribution patterns to minimize the risk of interactions of NARWs with black sea bass pot gear. PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 During the months of November and April, the area closed through this rule prohibits black sea bass pots inshore of an area which represents 91 percent of historical right whale sightings off Florida and Georgia; and off North Carolina and South Carolina, the black sea bass pot prohibition would apply to E:\FR\FM\29DER1.SGM 29DER1 ER29DE16.022</GPH> rmajette on DSK2TPTVN1PROD with RULES 82"W 95896 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations rmajette on DSK2TPTVN1PROD with RULES Federal waters shallower than 25 meters (m) in depth. During December through March, the area closed through this final rule prohibits black sea bass pots shallower than 25 m in depth off Florida and Georgia; and from the Georgia/ South Carolina border to Cape Hatteras, North Carolina, the prohibition applies to Federal waters that are shallower than 30 m in depth. The bathymetric area closed during December through March is based on right whale sightings by depth and captures 97 percent and 96 percent of right whale sightings off the North Carolina/South Carolina area, and Florida/Georgia area, respectively. The reduction in the closure areas described in this final rule are expected to minimize adverse socioeconomic effects of the current November through April black sea bass pot prohibition by increasing the area available to fish using black sea bass pots. In addition, the changes are expected to increase the flexibility of black sea bass pot endorsement holders to fish with this gear while maintaining an appropriate level of protection for NARWs. On December 1, 2016, NMFS completed a new ESA consultation and biological opinion on the South Atlantic snapper-grouper fishery. The biological opinion concluded that the continued authorization of the South Atlantic snapper-grouper fishery, including the black sea bass component, is not likely to jeopardize the continued existence of North Atlantic right whales, the only listed whale species in the South Atlantic region that may be adversely affected by the fishery. This final rule also allows for vessel transit through the black sea bass pot closed areas, providing that the black sea bass pot gear is appropriately stowed on the vessel. Transit is defined as non-stop progression through the closed area; fishing gear appropriately stowed means all black sea bass pot gear must be out of the water and on board the deck of the vessel. All buoys must either be disconnected from the gear or stowed within the sea bass pot. The disconnected buoys may remain on deck. Gear Marking Requirements Fish traps and pot buoy lines, including black sea bass pots, are currently required to have specific line marking requirements during certain times of the year and in the locations described in the Atlantic Large Whale Take Reduction Plan (ALWTRP)(see 50 CFR 229.32(b)). The ALWTRP includes at least three areas where black sea bass pots are regulated and fished. This includes the Offshore Trap/Pot Waters Area, Southern Nearshore Trap/Pot VerDate Sep<11>2014 14:51 Dec 28, 2016 Jkt 241001 Waters Area, and the U.S. Southeast Restricted Area North. Additionally, the FMP contains separate gear requirements, and Regulatory Amendment 16 modifies the current gear marking requirements under the FMP by requiring additional markings for black sea bass pot buoy lines. This final rule requires that an additional 12-inch (30.5 cm) wide purple band be added onto the buoy line at the end of, and directly adjacent to, each of the currently required 12inch (30.5 cm) colored marks that are required through the ALWTRP, described in 50 CFR 229.32(b). Within the area of the Council’s jurisdiction for managing black sea bass, the additional black sea bass gear marking requirements are required to be in place in Federal waters from September 1 through May 31 in the Offshore Trap/ Pot Waters Area and the Southern Nearshore Trap/Pot Waters Area, and from November 15 through May 31 in the Southeast U.S. Restricted Area North. The Council’s requirement that sea bass pot gear have additional gearspecific marking will help distinguish black sea bass pots from other fishing gear that could be encountered by whales. Comments and Responses A total of 13 comment submissions were received on the proposed rule from individuals, a Federal agency, a commercial fishing organization, and non-governmental organizations (NGOs). Eight comments were in favor of the preferred actions in Regulatory Amendment 16 and three comments were opposed to the use of black sea bass pots in general in the South Atlantic EEZ. Two comment submissions received from the Federal agency and the NGOs expressed concerns over the actions in Regulatory Amendment 16. Specific comments related to the actions in Regulatory Amendment 16 and the proposed rule, as well as NMFS’ respective responses, are summarized below. Comment 1: Black sea bass pot gear marking should be a year-round requirement for all black sea bass pot buoy lines rather than just a seasonal measure as required in Regulatory Amendment 16. Response: There currently are gear marking requirements for black sea bass pots as required through the ALWTRP, and separate gear marking requirements as required through the FMP. This final rule requires buoy line marking for black sea bass pots in addition to those already required through the ALWTRP. These additional markings are required in areas and during times similar to the PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 existing ALWTRP gear marking requirements. The additional buoy line markings are required from September 1 through May 31, in the ALWTRP Offshore Trap/Pot Waters Area and Southern Nearshore Trap/Pot Waters Area, and from November 15 through May 31, in the ALWTRP Southeast U.S. Restricted Area North. NMFS and the Council determined that the new requirement for black sea bass pot gear marking, together with existing requirements, provides a mechanism to adequately identify the black sea bass pot component of the snapper-grouper commercial sector, given the timing and location of right whale expected occurrence. In addition, black sea bass pot fishers have reported that they will likely leave the newly required gear markings on their buoy lines year-round since it would require additional effort for them to remove it for a limited season. Therefore, the Paperwork Reduction Act (PRA) burden estimates assume that the required gear markings would stay on the buoy lines as long as the marking is clearly visible as required by the rule (50 CFR 622.189(g)), and not be applied and removed from the buoy lines each season. Comment 2: NMFS should monitor and enforce the requirement for additional black sea bass pot gear marking required in this final rule. Response: NMFS agrees that monitoring and enforcement of fishing gear marking requirements increases the effectiveness of these measures and intends to do that for the specific measures in Regulatory Amendment 16 upon implementation of this final rule. NMFS’s Office of Law Enforcement (NOAA/OLE) and the United States Coast Guard (USCG) have the authority and the responsibility to enforce regulations implementing FMPs. NOAA/OLE special agents and officers specialize in living marine resource violations and provide fisheries expertise and investigative support for the overall fisheries mission, while the USCG provides at-sea patrol services for the fisheries mission. To increase the effectiveness of fishing regulations, NOAA supplements at-sea and dockside inspections of fishing vessels through Cooperative Enforcement Agreements and Joint Enforcement Agreements with most of the states in the South Atlantic region. These agreements can include granting authority to state officers to also enforce the laws for which NOAA/OLE has jurisdiction. Additionally, all of the states in the South Atlantic region have their own law enforcement officers that routinely patrol and enforce fisheries regulations in state waters. E:\FR\FM\29DER1.SGM 29DER1 rmajette on DSK2TPTVN1PROD with RULES Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations Comment 3: Several commenters stated that NMFS neglected to consider whether gear restrictions more stringent than those required by ALWTRP are needed in an area with juveniles and calves. In particular, the commenters stated that line breaking strength of greater than 2,200 lb (998 kg) is risk prone to the whales, and vertical lines heavier than 1,700 lb (771 kg) should not be allowed. The commenters were disappointed that the Agency has proposed to re-open a closed area and yet apparently failed to address the need to reduce risk beyond the status quo in the ALWTRP. The commenters noted that a recent peer-reviewed paper by Knowlton et al. (2015), though largely referencing the entanglement of adults, indicates that line breaking strengths of less than 1,700 lb (771 kg) would reduce the likelihood of life-threatening entanglements, and they noted that adult right whales have been found dead, entangled in gear with unbroken 600 lb (272 kg) weak links. Response: While the Council considered a measure in the amendment to require a breaking strength lower than that required under the ALWTRP, they did not choose that measure because they changed their preferred alternative during the development of the black sea bass pot seasonal closure to require fishers to travel further offshore to fish for black sea bass during November 1 through April 30, when the weather is likely to be more inclement (such as increased currents) than at other times of the year. The Council concluded that fishing in these areas during the winter would likely put greater stress on the fishing gear in the water, and a breaking strength that is lower than is currently required under the ALWTRP could increase the number of lost black sea bass pots. NMFS agrees that if fishermen used vertical lines with a breaking strength less than 1,700 lb (771 kg), the risk of life-threatening entanglements to right whales would be reduced from current levels, however, with the Council’s choice of closures for the black sea bass pot sector, the risk of potential right whale entanglement with black sea bass pot gear is low (Farmer et al. 2016). The recently completed ESA biological opinion on this fishery addresses vertical line breaking strength and contains a conservation recommendation that promotes the use of ropes with breaking strengths equal to or less than 1,700 lb (771 kg) for the black sea bass pot sector (50 CFR 402.2). NMFS is currently evaluating the implementation of this recommendation. Comment 4: Passive acoustic recording arrays have been deployed off VerDate Sep<11>2014 14:51 Dec 28, 2016 Jkt 241001 Georgia, South Carolina, and southern North Carolina since 2015; however, data from those arrays have yet to be published in a scientific journal describing the frequency of call rates at different distances from shore. Data on right whale call rates from these arrays should be analyzed to assess the probabilities of right whales encountering black sea bass pot buoy lines seaward of the offshore of the closure boundaries in Regulatory Amendment 16. Response: National Standard 2 of the Magnuson-Stevens Act requires that conservation and management measures shall be based upon the best scientific information available, and NMFS has determined that the actions in Amendment 16 and this final rule are based on the best scientific information available. Based on NMFS’s review of whale sightings, the models used for this rulemaking have performed well in predicting right whale distribution, and NMFS disagrees that unpublished data from these acoustic arrays should be included as part of Regulatory Amendment 16. Comment 5: One commenter agrees that the modified seasonal closures from November 1 through April 30 for the black sea bass pot component would substantially reduce the entanglement risk to right whales but suggests that the minimum distance from shore for the seaward boundaries of the black sea bass pot closure should be revised to extend to at least 30 nautical miles (nm) from shore between Cape Hatteras and the Florida-Georgia border and at least 20 nm from shore in Duval and St. Johns Counties in Florida. Response: NMFS disagrees that the boundaries of the black sea bass pot closure should be revised from those being implemented in this final rule. During the months of November and April, the area closed through this rule prohibits black sea bass pots inshore of an area which represents 91 percent of historical right whale sightings off Florida and Georgia; and off North Carolina and South Carolina, the black sea bass pot prohibition applies to Federal waters shallower than 25 m in depth. During December through March, the area closed through this final rule prohibits black sea bass pots shallower than 25 m in depth off Florida and Georgia; and from the Georgia/South Carolina border to Cape Hatteras, North Carolina, the prohibition applies to Federal waters that are shallower than 30 m in depth. This bathymetric area is based on right whale sightings by depth and captures 97 percent and 96 percent of right whale sightings off the North PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 95897 Carolina/South Carolina area, and Florida/Georgia area, respectively. Right whales are likely to be most abundant offshore of Duval and St. Johns Counties in Florida from December through March. In Regulatory Amendment 16, for December through March off Duval and St. Johns Counties, the distance of the black sea bass pot gear offshore boundary to the shoreline is greater than 20 nm from shore, except for an approximately 15 square nm area off the boundary that separates Duval and St. Johns Counties. NMFS has determined that changing the boundary for that 15 nm area, as the commenter requests, would not result in a significant change in the predicted relative risk to right whales from black sea bass pot gear. The analysis used in Regulatory Amendment 16 estimated that the area prohibition for black sea bass pots chosen by the Council has a low relative risk of entanglement of whales in black sea bass pot lines when compared with the other areas considered, and NMFS has determined that the analysis is based on the best scientific information available. Comment 6: The proposed depth thresholds for the offshore boundaries do not adequately capture all areas likely to be used by right whales during the peak months of right whale occurrence. The analysis used to evaluate the alternatives in Regulatory Amendment 16 is based almost entirely on right whale sightings from aerial surveys. Aerial surveys under-represent right whale occurrence and entanglement risks for areas farther offshore. Other analyses of sighting data (e.g., Knowlton et al. 2002, Schick et al. 2009) indicate that a large majority of sightings have occurred within approximately 10 or 15 nm of shore, but conclude that habitat extending 30 nm from shore should be considered important to migrating and calving whales off the southeastern United States. Response: NMFS disagrees. In Regulatory Amendment 16, right whale occurrence was predicted from two spatial distribution models that were based on a robust data set: Survey data for Florida-South Carolina during the calving season from 2003–2004 to 2012– 2013 (Gowan and Ortega-Ortiz 2014) and surveys off North Carolina from October 2005–April 2006, December 2006–April 2007, and February 2008– April 2008 (Farmer et al. 2016). These two models allowed for extrapolation of predicted right whale occurrence in areas that were not surveyed (i.e., the models controlled for bias created by shore-based search effort). E:\FR\FM\29DER1.SGM 29DER1 rmajette on DSK2TPTVN1PROD with RULES 95898 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations The commenter cited Knowlton et al. (2002) and Schick et al. (2009) to support extending the black sea bass pot closure 30 nm from shore. However, Knowlton et al. (2002) summarized sightings data in the mid-Atlantic, but did not correct those sightings for survey effort as was done in the models used in the development of Regulatory Amendment 16. Schick et al. (2009) modeled right whale spatial distribution in the mid-Atlantic, but the results have a high degree of uncertainty as the study only used data from two female right whales, one tagged in 1996 and the other tagged in 2000. NMFS has determined that the analysis in Regulatory Amendment 16 represents the best scientific information available. Comment 7: Limited telemetry and recent acoustic monitoring suggest that waters beyond 15 or 20 nm from shore are used by right whales more frequently than aerial survey data indicate. For example, data on right whales tagged with telemetry devices to document northbound migration routes from the southeastern U.S. calving grounds (Andrews 2016, Slay et al. 2002) indicate that they regularly use waters out to 30 nm from shore and therefore are not confined to waters shallower than 25 or 30 m in depth. Response: There are varying levels of error and uncertainty associated with the preliminary telemetry tracks gathered from the two studies referenced (Andrews 2016, Slay et al. 2002), and the data have not been processed completely to account for those errors. Andrews (2016) summarizes the results of a right whale tagging study and contains a map that illustrates the estimated tracks of right whales tagged during the study. Slay et al. (2002) describes the results of a January 1999 study in which a female right whale accompanied by her calf was tracked via radio off northeast Florida and southeast Georgia. The researchers used telemetry to follow the mother/calf pair for 140 hours. That report overlays the whales’ track with that of sea surface temperature and the temperatures associated with the track are consistent with modeled right whale distribution in Gowan and Ortega-Ortiz (2014), which was the basis for the analysis contained in Regulatory Amendment 16. Since the study described in Slay et al. (2002) used telemetry data, NMFS believes that the results have a high degree of uncertainty. However, the spatial distribution information learned from the one right whale mother/calf pair in Slay et al. (2002) was adequately represented in the model used by Gowan and Ortega-Ortiz (2014) during VerDate Sep<11>2014 14:51 Dec 28, 2016 Jkt 241001 the development of Regulatory Amendment 16 and this final rule. Comment 8: A 2016 study by the U.S. Navy shows that right whale call rates detected by an acoustic monitoring array moored perpendicular to the coast off Cape Hatteras, North Carolina, are highest within 15 or 20 nm of shore, but significant numbers of right whale calls also occur between 20 and 40 nm offshore. Response: The U.S. Navy buoys in the acoustic array appeared to be placed at approximately 5 nm increments from the shoreline (i.e., 5, 10, 15, 20, and 25 nm from the shoreline). The offshore boundary of the black sea bass pot closure area extends nearly 20 nm offshore off North Carolina. From December 2013 through March 2014, the study indicates that the majority of right whale calls were detected at buoys that were located between 10 and 15 nm from the Cape Hatteras, North Carolina, shoreline. Fewer calls were detected 20 nm from the shoreline (when compared to the calls detected at 10 and 15 nm) and even fewer were detected 25 nm from shore. From October 2014 through February 2015, the majority of right whale calls were detected at buoys 5 and 10 nm from the shoreline (the buoy 15 nm from shore was offline from December 2014 through February 2015). Fewer right whale calls were detected 20 and 25 nm from shore. This study did not correlate the number of calls to the number of whales nor did they specify the detection range of the acoustic buoys. The U.S. Navy buoys in the study did not extend out to 40 nm as the commenter suggests, and the buoys were not designed with the intent of detecting whale calls. Therefore, NMFS has determined that the best scientific information available on right whale spatial distribution was used in Regulatory Amendment 16, and serves as the basis for this final rule. Comment 9: The black sea bass pot seasonal closures should be extended to the shoreline, and black sea bass pot fishing in state waters should be prohibited at the same times that Federal waters are closed. Similar regulations should be in place for fishing gear in both state and Federal waters. Response: The Council does not manage black sea bass in state waters, because the Magnuson-Stevens Act gives the Council the authority to manage fisheries in the EEZ, off North Carolina, South Carolina, Georgia and Florida (16 U.S.C. 1852(a)(1)(C)). However, NMFS and the Council informed the states of North Carolina, South Carolina, Georgia and Florida of the measures proposed for black sea PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 bass pots during the development and implementation of Regulatory Amendment 16, and NMFS intends to ask each of these states to issue regulations compatible with this final rule. Comment 10: The prohibition on winter black sea bass pot fishing outside of the right whale critical habitat area should be ended and areas as shown in Alternative 2 of Action 1 (the previous designation of North Atlantic right whale critical habitat) should be closed to fishing with black sea bass pot gear. Response: NMFS disagrees that the area shown in Alternative 2 of Action 1 to modify the annual November 1 through April 30 prohibition on the use of black sea bass pot gear in Regulatory Amendment 16 should be the only area closed to fishing with black sea bass pot gear. The area shown in Alternative 2 of Action 1 is based on right whale critical habitat that was implemented in 1994, and on January 26, 2016, NMFS issued a final rule that created an expansion of the right whale critical habitat area (81 FR 4838) that was effective February 26, 2016. This recent determination of critical habitat is based on an increased understanding of where North Atlantic right whales occur, or are most likely to occur, off the southeastern United States. The Council did not include an alternative to base the closed area on the revised right whale critical habitat because the Council voted for final approval of Regulatory Amendment 16 in December 2015, which was prior to the publication of the final rule for the North Atlantic right whale critical habitat area expansion. In addition, the analysis in Regulatory Amendment 16 indicated that Alternative 2 in Action 1 would introduce the greatest amount of entanglement risk to large whales, relative to all alternatives, because predicted North Atlantic right whale presence is higher outside of the geographic boundaries of Alternative 2. Comment 11: NMFS should not modify the current restrictions on black sea bass pots because this type of fishing gear captures large amounts of fish and reduces the availability of black sea bass to fishermen using hook-and-line gear. Response: NMFS agrees that commercial fishermen can harvest more black sea bass using pot gear than hookand-line gear. In addition, NMFS acknowledges that this final rule will likely increase the benefits to fishers using black sea bass pot gear and decrease the benefits to fishers using hook-and-line gear, as described in the Classification section of this final rule. However, NMFS estimates that revenue losses to each vessel using fishing gear E:\FR\FM\29DER1.SGM 29DER1 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations rmajette on DSK2TPTVN1PROD with RULES other than black sea bass pots will be relatively small. Though commercial harvest is greater using black seas bass pot gear, there are only 32 fishers with an endorsement who may harvest black sea bass using pots, and as implemented through Amendment 18A to the FMP, each endorsement holder is limited to a maximum of 35 pots, a commercial trip limit of 1,000 lb (454 kg) gutted weight, and a requirement that pots be brought back to shore after each trip (77 FR 32408, June 1, 2012). The Council determined that modifying the current closure under this final rule will reduce the adverse socioeconomic impacts and increase the flexibility of black sea bass pot endorsement holders to fish with this gear, while continuing to protect ESA-listed whales in the South Atlantic region. Classification The Regional Administrator, Southeast Region, NMFS, has determined that this final rule is consistent with Regulatory Amendment 16, the Magnuson-Stevens Act, and other applicable law. This final rule has been determined to be not significant for purposes of Executive Order 12866. In compliance with section 604 of the RFA, NMFS prepared a final regulatory flexibility analysis (FRFA) for this final rule. The FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA), a summary of the significant economic issues raised by public comments, NMFS’s responses to those comments, and a summary of the analyses completed to support the action. The FRFA follows. The preamble to the final rule provides the statement of the need for and objectives of this final rule. The Magnuson-Stevens Act provides the statutory basis for this final rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting or record-keeping requirements are introduced by this final rule. However, the final rule will require that for each black sea bass pot buoy line an additional 12-inch (30.5 cm) wide purple band be added at the end of, and directly adjacent to, each of the currently required 12-inch (30.5 cm) colored marks required under the ALWTRP discussed above. Similar to the current requirements under the ALWTRP, this marking requirement does not need an additional expertise on the part of fishermen. NMFS estimates that this requirement will cost each pot endorsement holder about an additional $5 annually if surveyor’s tape is used for VerDate Sep<11>2014 14:51 Dec 28, 2016 Jkt 241001 line marking, or about an additional $90 annually if paint is used instead. The estimated additional annual time burden associated with the marking requirement is up to approximately 3.5 hours annually. No comments specific to the IRFA or on the economic impacts of the rule more generally were received from the public or from the Chief Counsel for the Advocacy of the Small Business Administration and, therefore, no public comments are addressed in this FRFA. No changes to the proposed rule were made in response to public comments. NMFS agrees that the Council’s choice of preferred alternative will best achieve the Council’s objectives for Regulatory Amendment 16 while minimizing, to the extent practicable, the adverse effects on fishers, support industries, and associated communities. NMFS expects this final rule to directly affect federally permitted commercial fishermen fishing for black sea bass in the South Atlantic. For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. Small Business Administration’s (SBA) current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all NMFS rules subject to the RFA after July 1, 2016. Pursuant to the RFA, and prior to July 1, 2016, an IRFA was developed for this regulatory action using SBA’s size standards. NMFS has reviewed the analyses prepared for this regulatory action in light of the new size standard. All of the entities directly affected by this regulatory action are commercial fishing businesses and were considered small under the SBA’s size standards, and they all will continue to be considered small under the new NMFS standard. Thus, NMFS has determined that the new size standard does not affect analyses prepared for this regulatory action. As of December 31, 2014, there were 32 holders of the Federal black sea bass pot endorsement to the snapper-grouper PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 95899 commercial permit. Since that time one endorsement holder has dropped out of the black sea bass pot component of the commercial sector, but the current analysis uses 32 endorsement holders because historical records of these 32 endorsement holders were used in Regulatory Amendment 16. Using the records of 32 endorsement holders for determining the economic effects is not expected to inflate the analytical results because only an average of 31 vessels fished for black sea bass using pots. From the 2000/2001 through 2013/ 2014 fishing years, these endorsement holders used an average of 31 vessels fishing for black sea bass using pots. These vessels generated total combined revenues (2014 dollars) of $732,717 from black sea bass, $228,468 from other species jointly landed with black sea bass, and $248,662 from all other species in trips where black sea bass was not caught. The average annual revenue per vessel from all species, including black sea bass, landed by these vessels was $38,715 (2014 dollars). During the same time period, an average of 215 vessels using gear other than sea bass pots landed at least 1 lb (0.45 kg) of black sea bass. These vessels generated dockside total combined revenues (2014 dollars) of $199,574 from black sea bass, $3.838 million from other species jointly landed with black sea bass, and $7.680 million from all other species in trips where black sea bass was not caught. The average annual revenue per vessel from all species, including black sea bass, landed by these vessels was $54,651 (2014 dollars). Vessels that caught and landed black sea bass may also operate in other fisheries, the revenues of which are not known and are not reflected in these totals. Based on revenue information, all commercial vessels directly affected by the final rule may be assumed to be small entities. Because all entities expected to be directly affected by this final rule are assumed to be small entities, NMFS has determined that this final rule will affect a substantial number of small entities. However, the issue of disproportionate effects on small versus large entities does not arise in the present case. This final rule modifies the November 1 through April 30 annual prohibition on the use of black sea bass pot gear in the South Atlantic EEZ by allowing black sea bass pot fishing at depths greater than approximately 25 m from November 1 through 30, and April 1 through 30, from approximately Daytona Beach, Florida, to the Georgia/ South Carolina border and off North and South Carolina; at depths greater than E:\FR\FM\29DER1.SGM 29DER1 rmajette on DSK2TPTVN1PROD with RULES 95900 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations approximately 25 m from December 1 through March 31, from approximately Cape Canaveral, Florida, to Savannah, Georgia; and, at depths greater than approximately 30 m from December 1 through March 31 off North and South Carolina. In addition, this final rule requires black sea bass pot endorsement holders to put three 12-inch (30.5 cm) purple markings on each sea bass pot buoy line adjacent to the already required color markings on these lines under the ALWTRP. The marks are commonly made with either paint or surveyor’s tape. As described in the codified text to this final rule, other materials may also be used for marking the line. The modification to the current prohibition on the use of black sea bass pot gear will have contrasting economic effects on the two major groups of participants in the commercial harvest of black sea bass. This action will benefit those using pots for harvesting black sea bass, and given that the commercial annual catch limit (ACL) is predicted to be fully harvested, benefits to users of other fishing gear, such as hook-and-line, will decrease. The combined dockside revenues (2014 dollars) for all sea bass pot gear vessels are estimated to increase annually between $113,964 and $185,068 based on 2000–2013 average black sea bass price, or between $163,606 and $260,355 based on 2011–2013 average black sea bass price. Two price levels are used to provide a limit on the range of revenue effects. The lower limit is based on the 2000–2013 average black sea bass price and the upper limit is based on the 2011–2013 average black sea bass price. In contrast, the combined dockside revenues (2014 dollars) for all non-black seas bass pot gear vessels are estimated to decrease annually between $68,323 and $141,527 based on 2000– 2013 average black sea bass price, or between $116,650 and $241,631 based on 2011–2013 the average black sea bass price. The net revenue change for all vessels combined will be between $43,541 and $46,367 based on 2000– 2013 average price for black sea bass, or between $43,889 and $46,553 based on 2010–2013 average price for black sea bass. Assuming that revenue increases for users of pot gear will be equally distributed among the 32 endorsement holders, revenues per pot endorsement holder will increase annually between $3,561 and $5,783, or between $5,113 and $8,136. However, revenue per vessel for the 215 users of non-pot gear will decrease between $318 and $658, or between $543 and $1,124. For vessels using black seas bass pot gear, the VerDate Sep<11>2014 14:51 Dec 28, 2016 Jkt 241001 expected revenue increases will be approximately 9 to 21 percent of their average annual revenue of $38,715 per vessel. However, revenue losses to vessels using fishing gear other than black sea bass pots will be between 1 and 2 percent of their average annual revenue of $54,651 per vessel. Therefore, on a per vessel basis, the revenue gains to the black seas bass pot endorsement holders could potentially be substantial, whereas the revenue losses to the other fishing gear users will be relatively small. The requirement for black sea bass pot endorsement holders to put three 12inch (30.5 cm) purple markings on each black sea bass pot buoy line adjacent to the already required colors required under the ALWTRP will cost each endorsement holder about an additional $5 annually if surveyor’s tape is used, or about an additional $90 annually if paint is used instead. The following discussion describes the alternatives that were not selected as preferred by the Council. In this section, the term ‘‘overall revenues’’ refers to the sum of revenues from all vessels using black sea bass pots and revenues from all vessels using gear other than black sea bass pots for for harvesting black sea bass. Twelve alternatives, including the preferred alternative as described above, were considered for modifying the November 1 through April 30 prohibition on the use of black sea bass pot gear. The first alternative, the no action alternative, would maintain the current economic benefits to all participants in the fishery as well as provide the least likelihood of right whales getting entangled with black sea bass pot lines. However, this alternative would not address the need to reduce the adverse socioeconomic effects resulting from the current prohibition on the use of black sea bass pot gear. The second alternative would apply the black sea bass pot closure to the area previously designated as North Atlantic right whale critical habitat from November 15 through April 15. This alternative would provide slightly more increases in overall revenues to commercial vessels than the preferred alternative, but it would also pose the highest risk of right whale entanglement with black sea bass pot buoy lines. The third alternative would apply the black sea bass pot closure from approximately Ponce Inlet, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Relative to the preferred alternative, this alternative would result in higher overall revenue increases but would also decrease protection to right whales PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 from getting entangled with pot buoy lines. The fourth alternative would apply the black sea bass pot closure from approximately Cape Canaveral, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Although this alternative would provide increased protection to right whales from entanglement with black sea bass pot buoy lines, it would result in smaller overall revenue increases than the preferred alternative. The fifth alternative would apply the black sea bass pot closure from approximately Daytona Beach, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Relative to the preferred alternative, this alternative would provide slightly more increases in overall revenues to commercial vessels but would provide less protection to right whales from entanglement with black sea bass pot buoy lines. The sixth alternative would apply the black sea bass pot closure from approximately Sebastian Inlet, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Although this alternative would provide the second greatest protection in comparison with the other alternatives in Regulatory Amendment 16 to right whales from entanglement with pot buoy lines, it would result in lower overall revenue increases than the preferred alternative. The seventh alternative would apply the black sea bass pot closure from approximately the Altamaha River, Georgia, to Cape Hatteras, North Carolina, with the following subalternatives: Annually from November 1 through December 15 and March 15 through April 30; annually from November 1 through December 15 and March 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida; and, annually from February 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida. Relative to the preferred alternative, this alternative and its sub-alternatives would result in relatively higher overall revenue increases but would provide much reduced protection to right whales from entanglement with sea bass pot buoy lines. The eighth alternative would apply the black sea bass pot closure from approximately Daytona Beach, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 15; or annually from November 1 E:\FR\FM\29DER1.SGM 29DER1 rmajette on DSK2TPTVN1PROD with RULES Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations through December 15 and February 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida. Relative to the preferred alternative, this alternative and its sub-alternatives would result in higher overall revenue increases but would result in a much reduced protection to right whales from entanglement with pot buoy lines. The ninth alternative would apply the black sea bass pot closure from approximately Daytona Beach, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 15; or annually from November 1 through December 15 and February 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida. Relative to the preferred alternative, this alternative and its sub-alternatives would result in higher overall revenue increases but would result in much reduced protection to right whales from entanglement with pot buoy lines. The tenth alternative would apply the black sea bass pot closure from approximately the Georgia/South Carolina border, to Cape Hatteras, North Carolina, annually from November 1 through December 15, with the following provision: From February 15 through April 30, the black sea bass pot closure applies to certain inshore waters from approximately the Georgia/South Carolina border, to Cape Hatteras, North Carolina; from December 16 through February 14, there would be no closure off of the Carolinas; from November 15 through April 15, the black sea bass pot closure applies to certain inshore waters from approximately the Georgia/South Carolina border, to approximately Daytona Beach, Florida. Relative to the preferred alternative, this alternative would result in higher overall revenue increases but would result in much reduced protection to right whales from entanglement with pot buoy lines. The eleventh alternative would apply the black sea bass pot closure from approximately Cape Canaveral, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Relative to the preferred alternative, this alternative would result in higher overall revenue increases but would result in slightly reduced protection to right whales from entanglement with black sea bass pot buoy lines. Four alternatives, including the preferred alternative, were considered in addition to the existing ALWTRP buoy line/weak link gear requirements and buoy line rope marking for black VerDate Sep<11>2014 14:51 Dec 28, 2016 Jkt 241001 sea bass pots in the South Atlantic. The first alternative, the no action alternative, would not impose any additional cost on fishermen when fishing for black sea bass using pots but it would not meet the need for the action. The second alternative, with two sub-alternatives, would impose requirements in addition to those required under the current ALWTRP for black sea bass pot buoy lines from November 1 through April 30 in Federal waters in the South Atlantic. The first sub-alternative would require that the breaking strength for buoy lines not exceed 2,200 lb (997 kg) and the second sub-alternative would require that the breaking strength for buoy lines not exceed 1,200 lb (544 kg). The first subalternative is what is currently required under the ALWTRP in the Southeast U.S. Restricted Area North and would affect only about 17 pot endorsement holders in North Carolina. The estimated cost to each of these 17 fishermen is a maximum of $716. The second sub-alternative would impose the same cost per fisherman of $716 but would affect all 32 pot endorsement holders. The third alternative would require that the breaking strength of the weak links of the buoy lines must not exceed 400 lb (181 kg) for black sea bass pots in the South Atlantic EEZ. This alternative is a decrease from the current requirement of 600 lb (272 kg) breaking strength of the weak links under the ALWTRP, and is estimated to cost each of the 32 pot endorsement holders $65. Relative to the preferred alternative, all these alternatives, except the no action alternative, would impose higher costs upon fishermen using black sea bass pots. This final rule contains a revised collection-of-information requirements subject to the PRA, which has been approved by OMB under control number 0648–0358. NMFS estimates the public reporting burden for the sea bass pot gear marking will result in an additional annual cost of up to $90 per sea bass pot endorsement holder and require up to an additional 3.5 hours per response per year. Based upon feedback from fishermen, the cost and time burden for the marking requirement may be slightly lower in subsequent years depending on the marking method used. However, NMFS estimates the requirement to endorsement holders will result in the same for cost and time burden for each subsequent year, because different materials used to mark sea bass pot gear are available and the longevity of the markings vary depending on factors such as the length of the fishing season and how often the PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 95901 gear is used. This estimate of the public reporting burden includes the time for reviewing instructions, gathering and maintaining the data needed, and completing and reviewing the collection-of-information. Notwithstanding any other provision of the law, no person is required to respond to, nor will any person be subject to a penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB control number. All currently approved NOAA collections-of-information may be viewed at http://www.cio.noaa.gov/ services_programs/prasubs.html. 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. There are provisions in this final rule that are exempt from the requirement to delay the effectiveness of a final rule by 30 days after publication in the Federal Register, under 5 U.S.C. 553(d)(3). Specifically, NMFS finds good cause under 5 U.S.C. 553(d)(3) to waive the delay in the effective date for the revised time and area closures specific to the use of black sea bass pot gear in the South Atlantic EEZ set forth in § 622.183(b)(6), since these measures increase the allowable area and time available to this fishing gear type for the regulated community during the fishing year. Delaying implementation of these measures for black sea bass could result in snapper-grouper fishermen not having the opportunity to achieve optimum yield from this stock, because the black sea bass pot component of the commercial sector would have less time available during the year to harvest the ACL before the fishing year’s end, thereby undermining the intent of the rule. Additionally, a delay in implementation for these measures would not allow fishers using black sea bass pot gear to begin fishing with that gear as soon as possible, which would therefore minimize the potential socioeconomic benefits of this final rule and be contrary to the purpose of Regulatory Amendment 16. Thus, not waiving the 30-day delay of effectiveness for these black sea bass pot E:\FR\FM\29DER1.SGM 29DER1 95902 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations gear closure provisions is unnecessary and contrary to the public interest, as a delay in implementation may negatively impact black sea bass pot fishers and be inconsistent with the purpose of this final rule with respect to reducing the socioeconomic impacts of the current closure. Therefore, a delay in effectiveness would diminish the social and economic benefits for snappergrouper fishermen this final rule provides, which is part of the purpose of the rule. Thus, the measures applicable to the black sea bass pot gear area and seasonal closure in this final rule are effective upon publication. List of Subjects in 50 CFR Part 622 Annual catch limits, Black sea bass, Fisheries, Fishing, South Atlantic. Point 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, revise paragraph (b)(6) to read as follows: ■ Area and seasonal closures. rmajette on DSK2TPTVN1PROD with RULES * * * * * (b) * * * (6) Seasonal closure of the commercial black sea bass pot component of the snapper-grouper fishery. The closed area is that area and time period described in paragraphs (b)(6)(i) and (b)(6)(ii) of this section, respectively. During the applicable closure, no person may harvest or possess black sea bass in or from the closed area within the South Atlantic EEZ either with sea bass pots or from a vessel with sea bass pots on board, except that a vessel with a valid commercial permit for snapper-grouper with a sea bass pot endorsement that is in transit and with black sea bass pot gear appropriately stowed as described in paragraph (b)(6)(iii) of this section may possess black sea bass. In addition, sea bass pots must be removed from the water in the applicable closed area within the South Atlantic EEZ before the applicable time period, and may not be on board a vessel in the closed area within the South Atlantic EEZ during the applicable closure, except for such VerDate Sep<11>2014 14:51 Dec 28, 2016 Jkt 241001 North lat. 1 ............... Dated: December 22, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. § 622.183 sea bass pot gear appropriately stowed on board a vessel in transit through the closed area. See paragraph (b)(6)(iii) of this section for black sea bass pot transit and gear stowage requirements through the closed areas. (i) From November 1 through November 30 and from April 1 through April 30, no person may harvest or possess black sea bass in or from the closed area within the South Atlantic EEZ either with sea bass pots or from a vessel with sea bass pots on board in the South Atlantic EEZ inshore of the rhumb lines connecting, in order, the following points: 35°15′ 2 ............... 3 ............... 4 ............... 5 ............... 6 ............... 7 ............... 8 ............... 9 ............... 10 ............. 11 ............. 12 ............. 13 ............. 14 ............. 15 ............. 16 ............. 17 ............. 18 ............. 19 ............. 20 ............. 21 ............. 22 ............. 23 ............. 24 ............. 25 ............. 26 ............. 27 ............. 28 ............. 29 ............. 30 ............. 31 ............. 32 ............. 33 ............. 34 ............. 35 ............. 35°15′ 35°06′ 35°06′ 35°01′ 34°54′ 34°52′ 34°33′ 34°23′ 34°21′ 34°25′ 34°09′ 33°44′ 33°25′ 33°22′ 33°28′ 33°32′ 33°22′ 33°06′ 33°05′ 33°01′ 32°56′ 32°44′ 32°42′ 32°34′ 32°25′ 32°23′ 31°53′ 31°31′ 30°43′ 30°30′ 29°45′ 29°31′ 29°13′ 29°13′ West long. State/EEZ boundary. 75°09′. 75°22′. 75°39′. 75°47′. 75°46′. 76°04′. 76°22′. 76°18′. 76°27′. 76°51′. 77°19′. 77°38′. 77°27′. 77°40′. 77°41′. 77°53′. 78°26′. 78°31′. 78°40′. 78°43′. 78°57′. 79°04′. 79°13′. 79°23′. 79°25′. 79°37′. 80°09′. 80°33′. 80°49′. 81°01′. 81°01′. 80°58′. 80°52′. State/EEZ boundary. (ii) From December 1 through March 31, no person may harvest or possess black sea bass in or from the closed area within the South Atlantic EEZ either with sea bass pots or from a vessel with sea bass pots on board in the South Atlantic EEZ inshore of the rhumb lines connecting, in order, the following points: Point North lat. 1 ........... 35°15′ ............... 2 ........... 3 ........... 35°15′ ............... 34°58′ ............... PO 00000 Frm 00050 Fmt 4700 West long. State/EEZ boundary. 75°08′. 75°41′. Sfmt 4700 Point North lat. 4 ........... 5 ........... 6 ........... 7 ........... 8 ........... 9 ........... 10 ......... 11 ......... 12 ......... 13 ......... 14 ......... 15 ......... 16 ......... 17 ......... 18 ......... 19 ......... 20 ......... 21 ......... 22 ......... 23 ......... 24 ......... 25 ......... 26 ......... 27 ......... 28 ......... 34°49′ 34°47′ 34°31′ 34°20′ 34°12′ 33°43′ 33°21′ 33°18′ 33°22′ 33°12′ 33°05′ 33°01′ 32°40′ 32°36′ 32°19′ 32°16′ 32°03′ 31°39′ 30°58′ 30°13′ 29°32′ 29°22′ 28°50′ 28°21′ 28°21′ ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... West long. 75°50′. 76°05′. 76°18′. 76°13′. 77°00′. 77°30′. 77°21′. 77°41′. 77°56′. 78°20′. 78°22′. 78°38′. 79°01′. 79°18′. 79°22′. 79°37′. 79°48′. 80°27′. 80°47′. 81°01′. 80°39′. 80°44′. 80°22′. 80°18′. State/EEZ boundary. (iii) For the purpose of paragraph (b)(6) of this section, transit means nonstop progression through the area; fishing gear appropriately stowed means all black sea bass pot gear must be out of the water and on board the deck of the vessel. All buoys must either be disconnected from the gear or stowed within the sea bass pot. Disconnected buoys may remain on deck. * * * * * ■ 3. § 622.189, add paragraph (g) to read as follows: § 622.189 Restrictions and requirements for sea bass pots. * * * * * (g) Sea bass pot buoy line marking requirement. In addition to the gear marking requirements specified in 50 CFR 229.32(b), from November 15 through April 15, each year, in the Southeast U.S. Restricted Area North as described in 50 CFR 229.32(f) and from September 1 through May 31, each year in the Offshore Trap/Pot Waters Area and the Southern Nearshore Trap/Pot Waters Area, as described in 50 CFR 229.32(c)(6) and (9), respectively, the buoy line must be marked with a purple color band. The colored band must be clearly visible when the gear is hauled or removed from the water, including if the color of the rope is the same as, or similar, to the colored band. The purple band must be marked directly onto the line and adjacent to the buoy line markings specified in 50 CFR 229.32(b), that is, at the top, middle, and bottom of each buoy line deployed by, or on board, the vessel. Each of the three purple bands must be a 12-inch (30.5 E:\FR\FM\29DER1.SGM 29DER1 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations cm) color mark. In marking or affixing the purple band, the line may be dyed, painted, or marked with thin colored whipping line, thin colored plastic, or heat-shrink tubing, or other material. [FR Doc. 2016–31363 Filed 12–28–16; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 160527473–6999–02] RIN 0648–BG09 Atlantic Highly Migratory Species; Individual Bluefin Quota Program; Inseason Transfers National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS modifies the Atlantic highly migratory species (HMS) regulations regarding the distribution of inseason Atlantic bluefin tuna (BFT) quota transfers to the Longline category. This final rule provides NMFS the ability to distribute quota inseason either to all qualified Individual Bluefin Quota (IBQ) share recipients (i.e., share recipients who have associated their permit with a vessel) or only to permitted Atlantic Tunas Longline vessels with recent fishing activity, whether or not they are associated with IBQ shares. This action is necessary to optimize fishing opportunity in the directed pelagic longline fishery for target species such as tuna and swordfish and to improve the functioning of the IBQ Program and its leasing provisions consistent with the objectives of Amendment 7 to the 2006 Consolidated HMS Fishery Management Plan (FMP). DATES: Effective on January 28, 2017. ADDRESSES: Supporting documents, including the Regulatory Impact Review and Final Regulatory Flexibility Analysis, may be downloaded from the HMS Web site at www.nmfs.noaa.gov/ sfa/hms/. FOR FURTHER INFORMATION CONTACT: Thomas Warren or Sarah McLaughlin, 978–281–9260; Carrie Soltanoff, 301– 427–8503. SUPPLEMENTARY INFORMATION: Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et rmajette on DSK2TPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 14:51 Dec 28, 2016 Jkt 241001 seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and implemented by NMFS among the various domestic fishing categories per the allocations established in the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006), as amended by Amendment 7 to the 2006 Consolidated HMS FMP (Amendment 7) (79 FR 71510, December 2, 2014), and in accordance with implementing regulations. The current baseline U.S. BFT quota and subquotas were established and analyzed in the BFT quota final rule (80 FR 52198, August 28, 2015). NMFS is required under ATCA and the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quota. Background Background information about the need for additional flexibility within the IBQ Program for distribution of BFT quota transferred to the Longline category inseason was provided in the preamble to the proposed rule (81 FR 65988, September 26, 2016) and most of that information is not repeated here. Vessels fishing with pelagic longline gear, which may only catch BFT incidentally while fishing for target species (primarily swordfish and yellowfin tuna), hold limited access Atlantic Tunas Longline permits and utilize Longline category BFT quota. Through Amendment 7, NMFS established the IBQ Program, a catch share program that identified 136 permit holders as IBQ share recipients based on specified criteria, including historical target species landings and the bluefin catch-to-target species ratios from 2006 through 2012. NMFS currently distributes and manages the Longline category BFT quota via the IBQ Program. The specific objectives of the IBQ Program are to: 1. Limit the amount of BFT landings and dead discards in the pelagic longline fishery; 2. Provide strong incentives for the vessel owner and operator to avoid BFT interactions, and thus reduce bluefin dead discards; 3. Provide flexibility in the quota system to enable pelagic longline PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 95903 vessels to obtain BFT quota from other vessels with available individual quota in order to enable full accounting for BFT landings and dead discards, and minimize constraints on fishing for target species; 4. Balance the objective of limiting bluefin landings and dead discards with the objective of optimizing fishing opportunities and maintaining profitability; and 5. Balance the above objectives with potential impacts on the directed permit categories that target BFT, and the broader objectives of the 2006 Consolidated HMS FMP and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). IBQ share recipients receive an annual allocation of the Longline category quota based on the percentage share they received through Amendment 7 but only if their permit is associated with a vessel in the subject year (i.e., only ‘‘qualified IBQ share recipients’’ receive annual allocations). Permit holders that were not selected to receive IBQ shares through Amendment 7 may still fish, but they are required to lease quota through the IBQ electronic system. Every vessel must have a minimum amount of quota allocation to fish (e.g., 0.25 metric tons (mt) whole weight (ww) (551 lb ww) for a trip in the Gulf of Mexico and 0.125 mt ww (276 lb ww) for a trip in the Atlantic), whether obtained through shares or by leasing, and every vessel must individually account for its BFT landings and dead discards through the IBQ electronic system. In July 2015 and January 2016, NMFS transferred quota inseason from the Reserve category to the Longline category (80 FR 45098, July 29, 2015; 81 FR 19, January 4, 2016). In these inseason actions, NMFS distributed the transferred quota in equal amounts to 136 qualified IBQ share recipients. During 2015, 36 of these 136 qualified IBQ share recipients had no pelagic longline fishing activity (i.e., they took no fishing trips with pelagic longline gear). Furthermore, 31 of the 36 qualified IBQ share recipients that did not fish also did not lease IBQ to others (i.e., 31 neither fished nor leased and 5 did not fish but leased out their IBQ allocations). As a result, those 31 IBQ allocations went unused for the year and expired at year’s end. NMFS received requests, among other suggestions about the IBQ Program and management of the pelagic longline fishery, that when quota is transferred inseason to the Longline category, NMFS distribute it only to those vessels that are currently fishing (whether E:\FR\FM\29DER1.SGM 29DER1

Agencies

[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)]
[Rules and Regulations]
[Pages 95893-95903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31363]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 131113952-6999-02]
RIN 0648-BD78


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Snapper-Grouper Fishery Off the Southern Atlantic States; Regulatory 
Amendment 16

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

ACTION: Final rule.

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SUMMARY: NMFS issues regulations to implement Regulatory Amendment 16 
to the Fishery Management Plan for the Snapper-Grouper Fishery of the 
South Atlantic Region (FMP), as prepared and submitted by the South 
Atlantic Fishery Management Council (Council). This final rule revises 
the current seasonal prohibition on the use of black sea bass pot gear 
in the South Atlantic and adds an additional gear marking requirement 
for black sea bass pot gear. The purpose of this final rule is to 
reduce the adverse socioeconomic impacts from the current seasonal 
black sea bass pot gear prohibition while continuing to protect 
Endangered Species Act (ESA) listed North Atlantic right whales 
(NARW)in the South Atlantic. This final rule also helps to better 
identify black sea bass pot gear in the South Atlantic.

DATES: This rule is effective January 30, 2017, except for the 
amendments to Sec.  622.183(b)(6) that are effective December 29, 2016.

ADDRESSES: Electronic copies of Regulatory Amendment 16, which includes 
an environmental impact statement (EIS), a Regulatory Flexibility Act 
(RFA) analysis, and a regulatory impact review, may be obtained from 
the Southeast Regional Office Web site at https://sero.nmfs.noaa.gov/sustainable_fisheries/s_atl/sg/2013/reg_am16/index.html.
    Comments regarding the burden-hour estimates, clarity of the 
instructions, or other aspects of the collection of information 
requirements contained in this final rule (see the Classification 
section of the preamble) may be submitted in writing to Adam Bailey, 
Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, 
FL 33701; or the Office of Management and Budget (OMB), by email at 
OIRA_submission@omb.eop.gov, or by fax to 202-395-5806.

FOR FURTHER INFORMATION CONTACT: Nikhil Mehta, telephone: 727-824-5305, 
email: nikhil.mehta@noaa.gov.

SUPPLEMENTARY INFORMATION: Black sea bass is in the snapper-grouper 
fishery and 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 December 4, 2013, NMFS published a notice of intent to prepare a 
draft EIS for Regulatory Amendment 16 and requested public comment (78 
FR 72968). On October 23, 2015, the notice of availability for the 
draft EIS was published and public comment was also requested (80 FR 
64409). The notice of availability for the final EIS for Regulatory 
Amendment 16 published on July 1, 2016 (81 FR 43198). On August 11, 
2016, NMFS published a proposed rule for Regulatory Amendment 16 and 
requested public comment (81 FR 53109). The proposed rule and 
Regulatory Amendment 16 outline the rationale for the actions contained 
in this final rule. A summary of the actions implemented by Regulatory 
Amendment 16 and this final rule is provided below.

Management Measures Contained in this Final Rule

    This final rule implements modifications to the current black sea 
bass pot seasonal closure. This final rule also modifies the buoy line 
rope marking requirements for black sea bass pots.

Black Sea Bass Pot Gear Seasonal Prohibition

    As established through Regulatory Amendment 19 to the FMP, black 
sea bass pot gear is prohibited in the South Atlantic exclusive 
economic zone (EEZ) annually from November 1 through April 30 (78 FR 
58249, September 23, 2013). This final rule retains the November 1 
through April 30 prohibition on the use of black sea bass pots but 
modifies the boundaries of the prohibition. This rule revises the South 
Atlantic EEZ-wide seasonal closure to a closure with two temporal and 
spatial components. The first closure period is for the months of 
November and April and the second closure period is for the months of 
December through March, each year. The first closure period is 
illustrated by Figure 1 below. During the November and April seasonal 
prohibition, the eastern boundary of the sea bass pot closed area off 
North and South Carolina is closer to shore than during the months of 
December through March.

[[Page 95894]]

[GRAPHIC] [TIFF OMITTED] TR29DE16.021

    During the black sea bass pot seasonal prohibition from December 
through March, each year, the closure area is larger than during the 
seasonal prohibition during November and April, particularly off 
Georgia and Florida. Waters off the coast of Georgia and Florida 
represent the primary right whale calving grounds in the South Atlantic 
EEZ. The black sea bass pot seasonal closure for December through March 
is illustrated in Figure 2 below.

[[Page 95895]]

[GRAPHIC] [TIFF OMITTED] TR29DE16.022

    The alternatives considered in Regulatory Amendment 16 for the 
black sea bass pot seasonal prohibition were developed considering 
spatial, temporal, and environmental variables. Spatial variation in 
the distribution of right whales is influenced by environmental 
variables such as water temperature, depth, and distance to shore. The 
closed areas in this final rule incorporate these environmental 
variables and spatial distribution patterns to minimize the risk of 
interactions of NARWs with black sea bass pot gear.
    During the months of November and April, the area closed through 
this rule prohibits black sea bass pots inshore of an area which 
represents 91 percent of historical right whale sightings off Florida 
and Georgia; and off North Carolina and South Carolina, the black sea 
bass pot prohibition would apply to

[[Page 95896]]

Federal waters shallower than 25 meters (m) in depth. During December 
through March, the area closed through this final rule prohibits black 
sea bass pots shallower than 25 m in depth off Florida and Georgia; and 
from the Georgia/South Carolina border to Cape Hatteras, North 
Carolina, the prohibition applies to Federal waters that are shallower 
than 30 m in depth. The bathymetric area closed during December through 
March is based on right whale sightings by depth and captures 97 
percent and 96 percent of right whale sightings off the North Carolina/
South Carolina area, and Florida/Georgia area, respectively.
    The reduction in the closure areas described in this final rule are 
expected to minimize adverse socioeconomic effects of the current 
November through April black sea bass pot prohibition by increasing the 
area available to fish using black sea bass pots. In addition, the 
changes are expected to increase the flexibility of black sea bass pot 
endorsement holders to fish with this gear while maintaining an 
appropriate level of protection for NARWs.
    On December 1, 2016, NMFS completed a new ESA consultation and 
biological opinion on the South Atlantic snapper-grouper fishery. The 
biological opinion concluded that the continued authorization of the 
South Atlantic snapper-grouper fishery, including the black sea bass 
component, is not likely to jeopardize the continued existence of North 
Atlantic right whales, the only listed whale species in the South 
Atlantic region that may be adversely affected by the fishery.
    This final rule also allows for vessel transit through the black 
sea bass pot closed areas, providing that the black sea bass pot gear 
is appropriately stowed on the vessel. Transit is defined as non-stop 
progression through the closed area; fishing gear appropriately stowed 
means all black sea bass pot gear must be out of the water and on board 
the deck of the vessel. All buoys must either be disconnected from the 
gear or stowed within the sea bass pot. The disconnected buoys may 
remain on deck.

Gear Marking Requirements

    Fish traps and pot buoy lines, including black sea bass pots, are 
currently required to have specific line marking requirements during 
certain times of the year and in the locations described in the 
Atlantic Large Whale Take Reduction Plan (ALWTRP)(see 50 CFR 
229.32(b)). The ALWTRP includes at least three areas where black sea 
bass pots are regulated and fished. This includes the Offshore Trap/Pot 
Waters Area, Southern Nearshore Trap/Pot Waters Area, and the U.S. 
Southeast Restricted Area North.
    Additionally, the FMP contains separate gear requirements, and 
Regulatory Amendment 16 modifies the current gear marking requirements 
under the FMP by requiring additional markings for black sea bass pot 
buoy lines. This final rule requires that an additional 12-inch (30.5 
cm) wide purple band be added onto the buoy line at the end of, and 
directly adjacent to, each of the currently required 12-inch (30.5 cm) 
colored marks that are required through the ALWTRP, described in 50 CFR 
229.32(b). Within the area of the Council's jurisdiction for managing 
black sea bass, the additional black sea bass gear marking requirements 
are required to be in place in Federal waters from September 1 through 
May 31 in the Offshore Trap/Pot Waters Area and the Southern Nearshore 
Trap/Pot Waters Area, and from November 15 through May 31 in the 
Southeast U.S. Restricted Area North. The Council's requirement that 
sea bass pot gear have additional gear-specific marking will help 
distinguish black sea bass pots from other fishing gear that could be 
encountered by whales.

Comments and Responses

    A total of 13 comment submissions were received on the proposed 
rule from individuals, a Federal agency, a commercial fishing 
organization, and non-governmental organizations (NGOs). Eight comments 
were in favor of the preferred actions in Regulatory Amendment 16 and 
three comments were opposed to the use of black sea bass pots in 
general in the South Atlantic EEZ. Two comment submissions received 
from the Federal agency and the NGOs expressed concerns over the 
actions in Regulatory Amendment 16. Specific comments related to the 
actions in Regulatory Amendment 16 and the proposed rule, as well as 
NMFS' respective responses, are summarized below.
    Comment 1: Black sea bass pot gear marking should be a year-round 
requirement for all black sea bass pot buoy lines rather than just a 
seasonal measure as required in Regulatory Amendment 16.
    Response: There currently are gear marking requirements for black 
sea bass pots as required through the ALWTRP, and separate gear marking 
requirements as required through the FMP. This final rule requires buoy 
line marking for black sea bass pots in addition to those already 
required through the ALWTRP. These additional markings are required in 
areas and during times similar to the existing ALWTRP gear marking 
requirements. The additional buoy line markings are required from 
September 1 through May 31, in the ALWTRP Offshore Trap/Pot Waters Area 
and Southern Nearshore Trap/Pot Waters Area, and from November 15 
through May 31, in the ALWTRP Southeast U.S. Restricted Area North. 
NMFS and the Council determined that the new requirement for black sea 
bass pot gear marking, together with existing requirements, provides a 
mechanism to adequately identify the black sea bass pot component of 
the snapper-grouper commercial sector, given the timing and location of 
right whale expected occurrence. In addition, black sea bass pot 
fishers have reported that they will likely leave the newly required 
gear markings on their buoy lines year-round since it would require 
additional effort for them to remove it for a limited season. 
Therefore, the Paperwork Reduction Act (PRA) burden estimates assume 
that the required gear markings would stay on the buoy lines as long as 
the marking is clearly visible as required by the rule (50 CFR 
622.189(g)), and not be applied and removed from the buoy lines each 
season.
    Comment 2: NMFS should monitor and enforce the requirement for 
additional black sea bass pot gear marking required in this final rule.
    Response: NMFS agrees that monitoring and enforcement of fishing 
gear marking requirements increases the effectiveness of these measures 
and intends to do that for the specific measures in Regulatory 
Amendment 16 upon implementation of this final rule. NMFS's Office of 
Law Enforcement (NOAA/OLE) and the United States Coast Guard (USCG) 
have the authority and the responsibility to enforce regulations 
implementing FMPs. NOAA/OLE special agents and officers specialize in 
living marine resource violations and provide fisheries expertise and 
investigative support for the overall fisheries mission, while the USCG 
provides at-sea patrol services for the fisheries mission.
    To increase the effectiveness of fishing regulations, NOAA 
supplements at-sea and dockside inspections of fishing vessels through 
Cooperative Enforcement Agreements and Joint Enforcement Agreements 
with most of the states in the South Atlantic region. These agreements 
can include granting authority to state officers to also enforce the 
laws for which NOAA/OLE has jurisdiction. Additionally, all of the 
states in the South Atlantic region have their own law enforcement 
officers that routinely patrol and enforce fisheries regulations in 
state waters.

[[Page 95897]]

    Comment 3: Several commenters stated that NMFS neglected to 
consider whether gear restrictions more stringent than those required 
by ALWTRP are needed in an area with juveniles and calves. In 
particular, the commenters stated that line breaking strength of 
greater than 2,200 lb (998 kg) is risk prone to the whales, and 
vertical lines heavier than 1,700 lb (771 kg) should not be allowed. 
The commenters were disappointed that the Agency has proposed to re-
open a closed area and yet apparently failed to address the need to 
reduce risk beyond the status quo in the ALWTRP. The commenters noted 
that a recent peer-reviewed paper by Knowlton et al. (2015), though 
largely referencing the entanglement of adults, indicates that line 
breaking strengths of less than 1,700 lb (771 kg) would reduce the 
likelihood of life-threatening entanglements, and they noted that adult 
right whales have been found dead, entangled in gear with unbroken 600 
lb (272 kg) weak links.
    Response: While the Council considered a measure in the amendment 
to require a breaking strength lower than that required under the 
ALWTRP, they did not choose that measure because they changed their 
preferred alternative during the development of the black sea bass pot 
seasonal closure to require fishers to travel further offshore to fish 
for black sea bass during November 1 through April 30, when the weather 
is likely to be more inclement (such as increased currents) than at 
other times of the year. The Council concluded that fishing in these 
areas during the winter would likely put greater stress on the fishing 
gear in the water, and a breaking strength that is lower than is 
currently required under the ALWTRP could increase the number of lost 
black sea bass pots. NMFS agrees that if fishermen used vertical lines 
with a breaking strength less than 1,700 lb (771 kg), the risk of life-
threatening entanglements to right whales would be reduced from current 
levels, however, with the Council's choice of closures for the black 
sea bass pot sector, the risk of potential right whale entanglement 
with black sea bass pot gear is low (Farmer et al. 2016). The recently 
completed ESA biological opinion on this fishery addresses vertical 
line breaking strength and contains a conservation recommendation that 
promotes the use of ropes with breaking strengths equal to or less than 
1,700 lb (771 kg) for the black sea bass pot sector (50 CFR 402.2). 
NMFS is currently evaluating the implementation of this recommendation.
    Comment 4: Passive acoustic recording arrays have been deployed off 
Georgia, South Carolina, and southern North Carolina since 2015; 
however, data from those arrays have yet to be published in a 
scientific journal describing the frequency of call rates at different 
distances from shore. Data on right whale call rates from these arrays 
should be analyzed to assess the probabilities of right whales 
encountering black sea bass pot buoy lines seaward of the offshore of 
the closure boundaries in Regulatory Amendment 16.
    Response: National Standard 2 of the Magnuson-Stevens Act requires 
that conservation and management measures shall be based upon the best 
scientific information available, and NMFS has determined that the 
actions in Amendment 16 and this final rule are based on the best 
scientific information available. Based on NMFS's review of whale 
sightings, the models used for this rulemaking have performed well in 
predicting right whale distribution, and NMFS disagrees that 
unpublished data from these acoustic arrays should be included as part 
of Regulatory Amendment 16.
    Comment 5: One commenter agrees that the modified seasonal closures 
from November 1 through April 30 for the black sea bass pot component 
would substantially reduce the entanglement risk to right whales but 
suggests that the minimum distance from shore for the seaward 
boundaries of the black sea bass pot closure should be revised to 
extend to at least 30 nautical miles (nm) from shore between Cape 
Hatteras and the Florida-Georgia border and at least 20 nm from shore 
in Duval and St. Johns Counties in Florida.
    Response: NMFS disagrees that the boundaries of the black sea bass 
pot closure should be revised from those being implemented in this 
final rule. During the months of November and April, the area closed 
through this rule prohibits black sea bass pots inshore of an area 
which represents 91 percent of historical right whale sightings off 
Florida and Georgia; and off North Carolina and South Carolina, the 
black sea bass pot prohibition applies to Federal waters shallower than 
25 m in depth. During December through March, the area closed through 
this final rule prohibits black sea bass pots shallower than 25 m in 
depth off Florida and Georgia; and from the Georgia/South Carolina 
border to Cape Hatteras, North Carolina, the prohibition applies to 
Federal waters that are shallower than 30 m in depth. This bathymetric 
area is based on right whale sightings by depth and captures 97 percent 
and 96 percent of right whale sightings off the North Carolina/South 
Carolina area, and Florida/Georgia area, respectively.
    Right whales are likely to be most abundant offshore of Duval and 
St. Johns Counties in Florida from December through March. In 
Regulatory Amendment 16, for December through March off Duval and St. 
Johns Counties, the distance of the black sea bass pot gear offshore 
boundary to the shoreline is greater than 20 nm from shore, except for 
an approximately 15 square nm area off the boundary that separates 
Duval and St. Johns Counties. NMFS has determined that changing the 
boundary for that 15 nm area, as the commenter requests, would not 
result in a significant change in the predicted relative risk to right 
whales from black sea bass pot gear.
    The analysis used in Regulatory Amendment 16 estimated that the 
area prohibition for black sea bass pots chosen by the Council has a 
low relative risk of entanglement of whales in black sea bass pot lines 
when compared with the other areas considered, and NMFS has determined 
that the analysis is based on the best scientific information 
available.
    Comment 6: The proposed depth thresholds for the offshore 
boundaries do not adequately capture all areas likely to be used by 
right whales during the peak months of right whale occurrence. The 
analysis used to evaluate the alternatives in Regulatory Amendment 16 
is based almost entirely on right whale sightings from aerial surveys. 
Aerial surveys under-represent right whale occurrence and entanglement 
risks for areas farther offshore. Other analyses of sighting data 
(e.g., Knowlton et al. 2002, Schick et al. 2009) indicate that a large 
majority of sightings have occurred within approximately 10 or 15 nm of 
shore, but conclude that habitat extending 30 nm from shore should be 
considered important to migrating and calving whales off the 
southeastern United States.
    Response: NMFS disagrees. In Regulatory Amendment 16, right whale 
occurrence was predicted from two spatial distribution models that were 
based on a robust data set: Survey data for Florida-South Carolina 
during the calving season from 2003-2004 to 2012-2013 (Gowan and 
Ortega-Ortiz 2014) and surveys off North Carolina from October 2005-
April 2006, December 2006-April 2007, and February 2008-April 2008 
(Farmer et al. 2016). These two models allowed for extrapolation of 
predicted right whale occurrence in areas that were not surveyed (i.e., 
the models controlled for bias created by shore-based search effort).

[[Page 95898]]

    The commenter cited Knowlton et al. (2002) and Schick et al. (2009) 
to support extending the black sea bass pot closure 30 nm from shore. 
However, Knowlton et al. (2002) summarized sightings data in the mid-
Atlantic, but did not correct those sightings for survey effort as was 
done in the models used in the development of Regulatory Amendment 16. 
Schick et al. (2009) modeled right whale spatial distribution in the 
mid-Atlantic, but the results have a high degree of uncertainty as the 
study only used data from two female right whales, one tagged in 1996 
and the other tagged in 2000. NMFS has determined that the analysis in 
Regulatory Amendment 16 represents the best scientific information 
available.
    Comment 7: Limited telemetry and recent acoustic monitoring suggest 
that waters beyond 15 or 20 nm from shore are used by right whales more 
frequently than aerial survey data indicate. For example, data on right 
whales tagged with telemetry devices to document northbound migration 
routes from the southeastern U.S. calving grounds (Andrews 2016, Slay 
et al. 2002) indicate that they regularly use waters out to 30 nm from 
shore and therefore are not confined to waters shallower than 25 or 30 
m in depth.
    Response: There are varying levels of error and uncertainty 
associated with the preliminary telemetry tracks gathered from the two 
studies referenced (Andrews 2016, Slay et al. 2002), and the data have 
not been processed completely to account for those errors. Andrews 
(2016) summarizes the results of a right whale tagging study and 
contains a map that illustrates the estimated tracks of right whales 
tagged during the study. Slay et al. (2002) describes the results of a 
January 1999 study in which a female right whale accompanied by her 
calf was tracked via radio off northeast Florida and southeast Georgia. 
The researchers used telemetry to follow the mother/calf pair for 140 
hours. That report overlays the whales' track with that of sea surface 
temperature and the temperatures associated with the track are 
consistent with modeled right whale distribution in Gowan and Ortega-
Ortiz (2014), which was the basis for the analysis contained in 
Regulatory Amendment 16. Since the study described in Slay et al. 
(2002) used telemetry data, NMFS believes that the results have a high 
degree of uncertainty. However, the spatial distribution information 
learned from the one right whale mother/calf pair in Slay et al. (2002) 
was adequately represented in the model used by Gowan and Ortega-Ortiz 
(2014) during the development of Regulatory Amendment 16 and this final 
rule.
    Comment 8: A 2016 study by the U.S. Navy shows that right whale 
call rates detected by an acoustic monitoring array moored 
perpendicular to the coast off Cape Hatteras, North Carolina, are 
highest within 15 or 20 nm of shore, but significant numbers of right 
whale calls also occur between 20 and 40 nm offshore.
    Response: The U.S. Navy buoys in the acoustic array appeared to be 
placed at approximately 5 nm increments from the shoreline (i.e., 5, 
10, 15, 20, and 25 nm from the shoreline). The offshore boundary of the 
black sea bass pot closure area extends nearly 20 nm offshore off North 
Carolina. From December 2013 through March 2014, the study indicates 
that the majority of right whale calls were detected at buoys that were 
located between 10 and 15 nm from the Cape Hatteras, North Carolina, 
shoreline. Fewer calls were detected 20 nm from the shoreline (when 
compared to the calls detected at 10 and 15 nm) and even fewer were 
detected 25 nm from shore. From October 2014 through February 2015, the 
majority of right whale calls were detected at buoys 5 and 10 nm from 
the shoreline (the buoy 15 nm from shore was offline from December 2014 
through February 2015). Fewer right whale calls were detected 20 and 25 
nm from shore. This study did not correlate the number of calls to the 
number of whales nor did they specify the detection range of the 
acoustic buoys. The U.S. Navy buoys in the study did not extend out to 
40 nm as the commenter suggests, and the buoys were not designed with 
the intent of detecting whale calls. Therefore, NMFS has determined 
that the best scientific information available on right whale spatial 
distribution was used in Regulatory Amendment 16, and serves as the 
basis for this final rule.
    Comment 9: The black sea bass pot seasonal closures should be 
extended to the shoreline, and black sea bass pot fishing in state 
waters should be prohibited at the same times that Federal waters are 
closed. Similar regulations should be in place for fishing gear in both 
state and Federal waters.
    Response: The Council does not manage black sea bass in state 
waters, because the Magnuson-Stevens Act gives the Council the 
authority to manage fisheries in the EEZ, off North Carolina, South 
Carolina, Georgia and Florida (16 U.S.C. 1852(a)(1)(C)). However, NMFS 
and the Council informed the states of North Carolina, South Carolina, 
Georgia and Florida of the measures proposed for black sea bass pots 
during the development and implementation of Regulatory Amendment 16, 
and NMFS intends to ask each of these states to issue regulations 
compatible with this final rule.
    Comment 10: The prohibition on winter black sea bass pot fishing 
outside of the right whale critical habitat area should be ended and 
areas as shown in Alternative 2 of Action 1 (the previous designation 
of North Atlantic right whale critical habitat) should be closed to 
fishing with black sea bass pot gear.
    Response: NMFS disagrees that the area shown in Alternative 2 of 
Action 1 to modify the annual November 1 through April 30 prohibition 
on the use of black sea bass pot gear in Regulatory Amendment 16 should 
be the only area closed to fishing with black sea bass pot gear. The 
area shown in Alternative 2 of Action 1 is based on right whale 
critical habitat that was implemented in 1994, and on January 26, 2016, 
NMFS issued a final rule that created an expansion of the right whale 
critical habitat area (81 FR 4838) that was effective February 26, 
2016. This recent determination of critical habitat is based on an 
increased understanding of where North Atlantic right whales occur, or 
are most likely to occur, off the southeastern United States. The 
Council did not include an alternative to base the closed area on the 
revised right whale critical habitat because the Council voted for 
final approval of Regulatory Amendment 16 in December 2015, which was 
prior to the publication of the final rule for the North Atlantic right 
whale critical habitat area expansion.
    In addition, the analysis in Regulatory Amendment 16 indicated that 
Alternative 2 in Action 1 would introduce the greatest amount of 
entanglement risk to large whales, relative to all alternatives, 
because predicted North Atlantic right whale presence is higher outside 
of the geographic boundaries of Alternative 2.
    Comment 11: NMFS should not modify the current restrictions on 
black sea bass pots because this type of fishing gear captures large 
amounts of fish and reduces the availability of black sea bass to 
fishermen using hook-and-line gear.
    Response: NMFS agrees that commercial fishermen can harvest more 
black sea bass using pot gear than hook-and-line gear. In addition, 
NMFS acknowledges that this final rule will likely increase the 
benefits to fishers using black sea bass pot gear and decrease the 
benefits to fishers using hook-and-line gear, as described in the 
Classification section of this final rule. However, NMFS estimates that 
revenue losses to each vessel using fishing gear

[[Page 95899]]

other than black sea bass pots will be relatively small.
    Though commercial harvest is greater using black seas bass pot 
gear, there are only 32 fishers with an endorsement who may harvest 
black sea bass using pots, and as implemented through Amendment 18A to 
the FMP, each endorsement holder is limited to a maximum of 35 pots, a 
commercial trip limit of 1,000 lb (454 kg) gutted weight, and a 
requirement that pots be brought back to shore after each trip (77 FR 
32408, June 1, 2012). The Council determined that modifying the current 
closure under this final rule will reduce the adverse socioeconomic 
impacts and increase the flexibility of black sea bass pot endorsement 
holders to fish with this gear, while continuing to protect ESA-listed 
whales in the South Atlantic region.

Classification

    The Regional Administrator, Southeast Region, NMFS, has determined 
that this final rule is consistent with Regulatory Amendment 16, the 
Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    In compliance with section 604 of the RFA, NMFS prepared a final 
regulatory flexibility analysis (FRFA) for this final rule. The FRFA 
incorporates the Initial Regulatory Flexibility Analysis (IRFA), a 
summary of the significant economic issues raised by public comments, 
NMFS's responses to those comments, and a summary of the analyses 
completed to support the action. The FRFA follows.
    The preamble to the final rule provides the statement of the need 
for and objectives of this final rule. The Magnuson-Stevens Act 
provides the statutory basis for this final rule.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified. In addition, no new reporting or record-keeping 
requirements are introduced by this final rule. However, the final rule 
will require that for each black sea bass pot buoy line an additional 
12-inch (30.5 cm) wide purple band be added at the end of, and directly 
adjacent to, each of the currently required 12-inch (30.5 cm) colored 
marks required under the ALWTRP discussed above. Similar to the current 
requirements under the ALWTRP, this marking requirement does not need 
an additional expertise on the part of fishermen. NMFS estimates that 
this requirement will cost each pot endorsement holder about an 
additional $5 annually if surveyor's tape is used for line marking, or 
about an additional $90 annually if paint is used instead. The 
estimated additional annual time burden associated with the marking 
requirement is up to approximately 3.5 hours annually.
    No comments specific to the IRFA or on the economic impacts of the 
rule more generally were received from the public or from the Chief 
Counsel for the Advocacy of the Small Business Administration and, 
therefore, no public comments are addressed in this FRFA. No changes to 
the proposed rule were made in response to public comments. NMFS agrees 
that the Council's choice of preferred alternative will best achieve 
the Council's objectives for Regulatory Amendment 16 while minimizing, 
to the extent practicable, the adverse effects on fishers, support 
industries, and associated communities.
    NMFS expects this final rule to directly affect federally permitted 
commercial fishermen fishing for black sea bass in the South Atlantic. 
For RFA purposes only, NMFS has established a small business size 
standard for businesses, including their affiliates, whose primary 
industry is commercial fishing (see 50 CFR 200.2). A business primarily 
engaged in commercial fishing (NAICS code 11411) is classified as a 
small business if it is independently owned and operated, is not 
dominant in its field of operation (including affiliates), and has 
combined annual receipts not in excess of $11 million for all its 
affiliated operations worldwide. The $11 million standard became 
effective on July 1, 2016, and is to be used in place of the U.S. Small 
Business Administration's (SBA) current standards of $20.5 million, 
$5.5 million, and $7.5 million for the finfish (NAICS 114111), 
shellfish (NAICS 114112), and other marine fishing (NAICS 114119) 
sectors of the U.S. commercial fishing industry in all NMFS rules 
subject to the RFA after July 1, 2016.
    Pursuant to the RFA, and prior to July 1, 2016, an IRFA was 
developed for this regulatory action using SBA's size standards. NMFS 
has reviewed the analyses prepared for this regulatory action in light 
of the new size standard. All of the entities directly affected by this 
regulatory action are commercial fishing businesses and were considered 
small under the SBA's size standards, and they all will continue to be 
considered small under the new NMFS standard. Thus, NMFS has determined 
that the new size standard does not affect analyses prepared for this 
regulatory action.
    As of December 31, 2014, there were 32 holders of the Federal black 
sea bass pot endorsement to the snapper-grouper commercial permit. 
Since that time one endorsement holder has dropped out of the black sea 
bass pot component of the commercial sector, but the current analysis 
uses 32 endorsement holders because historical records of these 32 
endorsement holders were used in Regulatory Amendment 16. Using the 
records of 32 endorsement holders for determining the economic effects 
is not expected to inflate the analytical results because only an 
average of 31 vessels fished for black sea bass using pots.
    From the 2000/2001 through 2013/2014 fishing years, these 
endorsement holders used an average of 31 vessels fishing for black sea 
bass using pots. These vessels generated total combined revenues (2014 
dollars) of $732,717 from black sea bass, $228,468 from other species 
jointly landed with black sea bass, and $248,662 from all other species 
in trips where black sea bass was not caught. The average annual 
revenue per vessel from all species, including black sea bass, landed 
by these vessels was $38,715 (2014 dollars). During the same time 
period, an average of 215 vessels using gear other than sea bass pots 
landed at least 1 lb (0.45 kg) of black sea bass. These vessels 
generated dockside total combined revenues (2014 dollars) of $199,574 
from black sea bass, $3.838 million from other species jointly landed 
with black sea bass, and $7.680 million from all other species in trips 
where black sea bass was not caught. The average annual revenue per 
vessel from all species, including black sea bass, landed by these 
vessels was $54,651 (2014 dollars). Vessels that caught and landed 
black sea bass may also operate in other fisheries, the revenues of 
which are not known and are not reflected in these totals. Based on 
revenue information, all commercial vessels directly affected by the 
final rule may be assumed to be small entities.
    Because all entities expected to be directly affected by this final 
rule are assumed to be small entities, NMFS has determined that this 
final rule will affect a substantial number of small entities. However, 
the issue of disproportionate effects on small versus large entities 
does not arise in the present case.
    This final rule modifies the November 1 through April 30 annual 
prohibition on the use of black sea bass pot gear in the South Atlantic 
EEZ by allowing black sea bass pot fishing at depths greater than 
approximately 25 m from November 1 through 30, and April 1 through 30, 
from approximately Daytona Beach, Florida, to the Georgia/South 
Carolina border and off North and South Carolina; at depths greater 
than

[[Page 95900]]

approximately 25 m from December 1 through March 31, from approximately 
Cape Canaveral, Florida, to Savannah, Georgia; and, at depths greater 
than approximately 30 m from December 1 through March 31 off North and 
South Carolina. In addition, this final rule requires black sea bass 
pot endorsement holders to put three 12-inch (30.5 cm) purple markings 
on each sea bass pot buoy line adjacent to the already required color 
markings on these lines under the ALWTRP. The marks are commonly made 
with either paint or surveyor's tape. As described in the codified text 
to this final rule, other materials may also be used for marking the 
line.
    The modification to the current prohibition on the use of black sea 
bass pot gear will have contrasting economic effects on the two major 
groups of participants in the commercial harvest of black sea bass. 
This action will benefit those using pots for harvesting black sea 
bass, and given that the commercial annual catch limit (ACL) is 
predicted to be fully harvested, benefits to users of other fishing 
gear, such as hook-and-line, will decrease. The combined dockside 
revenues (2014 dollars) for all sea bass pot gear vessels are estimated 
to increase annually between $113,964 and $185,068 based on 2000-2013 
average black sea bass price, or between $163,606 and $260,355 based on 
2011-2013 average black sea bass price. Two price levels are used to 
provide a limit on the range of revenue effects. The lower limit is 
based on the 2000-2013 average black sea bass price and the upper limit 
is based on the 2011-2013 average black sea bass price. In contrast, 
the combined dockside revenues (2014 dollars) for all non-black seas 
bass pot gear vessels are estimated to decrease annually between 
$68,323 and $141,527 based on 2000-2013 average black sea bass price, 
or between $116,650 and $241,631 based on 2011-2013 the average black 
sea bass price. The net revenue change for all vessels combined will be 
between $43,541 and $46,367 based on 2000-2013 average price for black 
sea bass, or between $43,889 and $46,553 based on 2010-2013 average 
price for black sea bass. Assuming that revenue increases for users of 
pot gear will be equally distributed among the 32 endorsement holders, 
revenues per pot endorsement holder will increase annually between 
$3,561 and $5,783, or between $5,113 and $8,136. However, revenue per 
vessel for the 215 users of non-pot gear will decrease between $318 and 
$658, or between $543 and $1,124. For vessels using black seas bass pot 
gear, the expected revenue increases will be approximately 9 to 21 
percent of their average annual revenue of $38,715 per vessel. However, 
revenue losses to vessels using fishing gear other than black sea bass 
pots will be between 1 and 2 percent of their average annual revenue of 
$54,651 per vessel. Therefore, on a per vessel basis, the revenue gains 
to the black seas bass pot endorsement holders could potentially be 
substantial, whereas the revenue losses to the other fishing gear users 
will be relatively small.
    The requirement for black sea bass pot endorsement holders to put 
three 12-inch (30.5 cm) purple markings on each black sea bass pot buoy 
line adjacent to the already required colors required under the ALWTRP 
will cost each endorsement holder about an additional $5 annually if 
surveyor's tape is used, or about an additional $90 annually if paint 
is used instead.
    The following discussion describes the alternatives that were not 
selected as preferred by the Council. In this section, the term 
``overall revenues'' refers to the sum of revenues from all vessels 
using black sea bass pots and revenues from all vessels using gear 
other than black sea bass pots for for harvesting black sea bass.
    Twelve alternatives, including the preferred alternative as 
described above, were considered for modifying the November 1 through 
April 30 prohibition on the use of black sea bass pot gear. The first 
alternative, the no action alternative, would maintain the current 
economic benefits to all participants in the fishery as well as provide 
the least likelihood of right whales getting entangled with black sea 
bass pot lines. However, this alternative would not address the need to 
reduce the adverse socioeconomic effects resulting from the current 
prohibition on the use of black sea bass pot gear.
    The second alternative would apply the black sea bass pot closure 
to the area previously designated as North Atlantic right whale 
critical habitat from November 15 through April 15. This alternative 
would provide slightly more increases in overall revenues to commercial 
vessels than the preferred alternative, but it would also pose the 
highest risk of right whale entanglement with black sea bass pot buoy 
lines.
    The third alternative would apply the black sea bass pot closure 
from approximately Ponce Inlet, Florida, to Cape Hatteras, North 
Carolina, annually from November 1 through April 30. Relative to the 
preferred alternative, this alternative would result in higher overall 
revenue increases but would also decrease protection to right whales 
from getting entangled with pot buoy lines.
    The fourth alternative would apply the black sea bass pot closure 
from approximately Cape Canaveral, Florida, to Cape Hatteras, North 
Carolina, annually from November 1 through April 30. Although this 
alternative would provide increased protection to right whales from 
entanglement with black sea bass pot buoy lines, it would result in 
smaller overall revenue increases than the preferred alternative.
    The fifth alternative would apply the black sea bass pot closure 
from approximately Daytona Beach, Florida, to Cape Hatteras, North 
Carolina, annually from November 1 through April 30. Relative to the 
preferred alternative, this alternative would provide slightly more 
increases in overall revenues to commercial vessels but would provide 
less protection to right whales from entanglement with black sea bass 
pot buoy lines.
    The sixth alternative would apply the black sea bass pot closure 
from approximately Sebastian Inlet, Florida, to Cape Hatteras, North 
Carolina, annually from November 1 through April 30. Although this 
alternative would provide the second greatest protection in comparison 
with the other alternatives in Regulatory Amendment 16 to right whales 
from entanglement with pot buoy lines, it would result in lower overall 
revenue increases than the preferred alternative.
    The seventh alternative would apply the black sea bass pot closure 
from approximately the Altamaha River, Georgia, to Cape Hatteras, North 
Carolina, with the following sub-alternatives: Annually from November 1 
through December 15 and March 15 through April 30; annually from 
November 1 through December 15 and March 15 through April 30 for the 
area off North Carolina and South Carolina, and from November 15 
through April 15 for the area off Georgia and Florida; and, annually 
from February 15 through April 30 for the area off North Carolina and 
South Carolina, and from November 15 through April 15 for the area off 
Georgia and Florida. Relative to the preferred alternative, this 
alternative and its sub-alternatives would result in relatively higher 
overall revenue increases but would provide much reduced protection to 
right whales from entanglement with sea bass pot buoy lines.
    The eighth alternative would apply the black sea bass pot closure 
from approximately Daytona Beach, Florida, to Cape Hatteras, North 
Carolina, annually from November 1 through April 15; or annually from 
November 1

[[Page 95901]]

through December 15 and February 15 through April 30 for the area off 
North Carolina and South Carolina, and from November 15 through April 
15 for the area off Georgia and Florida. Relative to the preferred 
alternative, this alternative and its sub-alternatives would result in 
higher overall revenue increases but would result in a much reduced 
protection to right whales from entanglement with pot buoy lines.
    The ninth alternative would apply the black sea bass pot closure 
from approximately Daytona Beach, Florida, to Cape Hatteras, North 
Carolina, annually from November 1 through April 15; or annually from 
November 1 through December 15 and February 15 through April 30 for the 
area off North Carolina and South Carolina, and from November 15 
through April 15 for the area off Georgia and Florida. Relative to the 
preferred alternative, this alternative and its sub-alternatives would 
result in higher overall revenue increases but would result in much 
reduced protection to right whales from entanglement with pot buoy 
lines.
    The tenth alternative would apply the black sea bass pot closure 
from approximately the Georgia/South Carolina border, to Cape Hatteras, 
North Carolina, annually from November 1 through December 15, with the 
following provision: From February 15 through April 30, the black sea 
bass pot closure applies to certain inshore waters from approximately 
the Georgia/South Carolina border, to Cape Hatteras, North Carolina; 
from December 16 through February 14, there would be no closure off of 
the Carolinas; from November 15 through April 15, the black sea bass 
pot closure applies to certain inshore waters from approximately the 
Georgia/South Carolina border, to approximately Daytona Beach, Florida. 
Relative to the preferred alternative, this alternative would result in 
higher overall revenue increases but would result in much reduced 
protection to right whales from entanglement with pot buoy lines.
    The eleventh alternative would apply the black sea bass pot closure 
from approximately Cape Canaveral, Florida, to Cape Hatteras, North 
Carolina, annually from November 1 through April 30. Relative to the 
preferred alternative, this alternative would result in higher overall 
revenue increases but would result in slightly reduced protection to 
right whales from entanglement with black sea bass pot buoy lines.
    Four alternatives, including the preferred alternative, were 
considered in addition to the existing ALWTRP buoy line/weak link gear 
requirements and buoy line rope marking for black sea bass pots in the 
South Atlantic. The first alternative, the no action alternative, would 
not impose any additional cost on fishermen when fishing for black sea 
bass using pots but it would not meet the need for the action. The 
second alternative, with two sub-alternatives, would impose 
requirements in addition to those required under the current ALWTRP for 
black sea bass pot buoy lines from November 1 through April 30 in 
Federal waters in the South Atlantic. The first sub-alternative would 
require that the breaking strength for buoy lines not exceed 2,200 lb 
(997 kg) and the second sub-alternative would require that the breaking 
strength for buoy lines not exceed 1,200 lb (544 kg). The first sub-
alternative is what is currently required under the ALWTRP in the 
Southeast U.S. Restricted Area North and would affect only about 17 pot 
endorsement holders in North Carolina. The estimated cost to each of 
these 17 fishermen is a maximum of $716. The second sub-alternative 
would impose the same cost per fisherman of $716 but would affect all 
32 pot endorsement holders. The third alternative would require that 
the breaking strength of the weak links of the buoy lines must not 
exceed 400 lb (181 kg) for black sea bass pots in the South Atlantic 
EEZ. This alternative is a decrease from the current requirement of 600 
lb (272 kg) breaking strength of the weak links under the ALWTRP, and 
is estimated to cost each of the 32 pot endorsement holders $65. 
Relative to the preferred alternative, all these alternatives, except 
the no action alternative, would impose higher costs upon fishermen 
using black sea bass pots.
    This final rule contains a revised collection-of-information 
requirements subject to the PRA, which has been approved by OMB under 
control number 0648-0358. NMFS estimates the public reporting burden 
for the sea bass pot gear marking will result in an additional annual 
cost of up to $90 per sea bass pot endorsement holder and require up to 
an additional 3.5 hours per response per year. Based upon feedback from 
fishermen, the cost and time burden for the marking requirement may be 
slightly lower in subsequent years depending on the marking method 
used. However, NMFS estimates the requirement to endorsement holders 
will result in the same for cost and time burden for each subsequent 
year, because different materials used to mark sea bass pot gear are 
available and the longevity of the markings vary depending on factors 
such as the length of the fishing season and how often the gear is 
used. This estimate of the public reporting burden includes the time 
for reviewing instructions, gathering and maintaining the data needed, 
and completing and reviewing the collection-of-information.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor will any person be subject to a penalty for 
failure to comply with, a collection-of-information subject to the 
requirements of the PRA, unless that collection-of-information displays 
a currently valid OMB control number. All currently approved NOAA 
collections-of-information may be viewed at http://www.cio.noaa.gov/services_programs/prasubs.html.
    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.
    There are provisions in this final rule that are exempt from the 
requirement to delay the effectiveness of a final rule by 30 days after 
publication in the Federal Register, under 5 U.S.C. 553(d)(3). 
Specifically, NMFS finds good cause under 5 U.S.C. 553(d)(3) to waive 
the delay in the effective date for the revised time and area closures 
specific to the use of black sea bass pot gear in the South Atlantic 
EEZ set forth in Sec.  622.183(b)(6), since these measures increase the 
allowable area and time available to this fishing gear type for the 
regulated community during the fishing year. Delaying implementation of 
these measures for black sea bass could result in snapper-grouper 
fishermen not having the opportunity to achieve optimum yield from this 
stock, because the black sea bass pot component of the commercial 
sector would have less time available during the year to harvest the 
ACL before the fishing year's end, thereby undermining the intent of 
the rule. Additionally, a delay in implementation for these measures 
would not allow fishers using black sea bass pot gear to begin fishing 
with that gear as soon as possible, which would therefore minimize the 
potential socioeconomic benefits of this final rule and be contrary to 
the purpose of Regulatory Amendment 16. Thus, not waiving the 30-day 
delay of effectiveness for these black sea bass pot

[[Page 95902]]

gear closure provisions is unnecessary and contrary to the public 
interest, as a delay in implementation may negatively impact black sea 
bass pot fishers and be inconsistent with the purpose of this final 
rule with respect to reducing the socioeconomic impacts of the current 
closure. Therefore, a delay in effectiveness would diminish the social 
and economic benefits for snapper-grouper fishermen this final rule 
provides, which is part of the purpose of the rule. Thus, the measures 
applicable to the black sea bass pot gear area and seasonal closure in 
this final rule are effective upon publication.

List of Subjects in 50 CFR Part 622

    Annual catch limits, Black sea bass, Fisheries, Fishing, South 
Atlantic.

    Dated: December 22, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.


0
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

0
1. The authority citation for part 622 continues to read as follows:

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


0
2. In Sec.  622.183, revise paragraph (b)(6) to read as follows:


Sec.  622.183  Area and seasonal closures.

* * * * *
    (b) * * *
    (6) Seasonal closure of the commercial black sea bass pot component 
of the snapper-grouper fishery. The closed area is that area and time 
period described in paragraphs (b)(6)(i) and (b)(6)(ii) of this 
section, respectively. During the applicable closure, no person may 
harvest or possess black sea bass in or from the closed area within the 
South Atlantic EEZ either with sea bass pots or from a vessel with sea 
bass pots on board, except that a vessel with a valid commercial permit 
for snapper-grouper with a sea bass pot endorsement that is in transit 
and with black sea bass pot gear appropriately stowed as described in 
paragraph (b)(6)(iii) of this section may possess black sea bass. In 
addition, sea bass pots must be removed from the water in the 
applicable closed area within the South Atlantic EEZ before the 
applicable time period, and may not be on board a vessel in the closed 
area within the South Atlantic EEZ during the applicable closure, 
except for such sea bass pot gear appropriately stowed on board a 
vessel in transit through the closed area. See paragraph (b)(6)(iii) of 
this section for black sea bass pot transit and gear stowage 
requirements through the closed areas.
    (i) From November 1 through November 30 and from April 1 through 
April 30, no person may harvest or possess black sea bass in or from 
the closed area within the South Atlantic EEZ either with sea bass pots 
or from a vessel with sea bass pots on board in the South Atlantic EEZ 
inshore of the rhumb lines connecting, in order, the following points:

------------------------------------------------------------------------
             Point                   North lat.           West long.
------------------------------------------------------------------------
1.............................  35[deg]15'           State/EEZ boundary.
2.............................  35[deg]15'           75[deg]09'.
3.............................  35[deg]06'           75[deg]22'.
4.............................  35[deg]06'           75[deg]39'.
5.............................  35[deg]01'           75[deg]47'.
6.............................  34[deg]54'           75[deg]46'.
7.............................  34[deg]52'           76[deg]04'.
8.............................  34[deg]33'           76[deg]22'.
9.............................  34[deg]23'           76[deg]18'.
10............................  34[deg]21'           76[deg]27'.
11............................  34[deg]25'           76[deg]51'.
12............................  34[deg]09'           77[deg]19'.
13............................  33[deg]44'           77[deg]38'.
14............................  33[deg]25'           77[deg]27'.
15............................  33[deg]22'           77[deg]40'.
16............................  33[deg]28'           77[deg]41'.
17............................  33[deg]32'           77[deg]53'.
18............................  33[deg]22'           78[deg]26'.
19............................  33[deg]06'           78[deg]31'.
20............................  33[deg]05'           78[deg]40'.
21............................  33[deg]01'           78[deg]43'.
22............................  32[deg]56'           78[deg]57'.
23............................  32[deg]44'           79[deg]04'.
24............................  32[deg]42'           79[deg]13'.
25............................  32[deg]34'           79[deg]23'.
26............................  32[deg]25'           79[deg]25'.
27............................  32[deg]23'           79[deg]37'.
28............................  31[deg]53'           80[deg]09'.
29............................  31[deg]31'           80[deg]33'.
30............................  30[deg]43'           80[deg]49'.
31............................  30[deg]30'           81[deg]01'.
32............................  29[deg]45'           81[deg]01'.
33............................  29[deg]31'           80[deg]58'.
34............................  29[deg]13'           80[deg]52'.
35............................  29[deg]13'           State/EEZ boundary.
------------------------------------------------------------------------

    (ii) From December 1 through March 31, no person may harvest or 
possess black sea bass in or from the closed area within the South 
Atlantic EEZ either with sea bass pots or from a vessel with sea bass 
pots on board in the South Atlantic EEZ inshore of the rhumb lines 
connecting, in order, the following points:

------------------------------------------------------------------------
              Point                   North lat.          West long.
------------------------------------------------------------------------
1...............................  35[deg]15'........  State/EEZ
                                                       boundary.
2...............................  35[deg]15'........  75[deg]08'.
3...............................  34[deg]58'........  75[deg]41'.
4...............................  34[deg]49'........  75[deg]50'.
5...............................  34[deg]47'........  76[deg]05'.
6...............................  34[deg]31'........  76[deg]18'.
7...............................  34[deg]20'........  76[deg]13'.
8...............................  34[deg]12'........  77[deg]00'.
9...............................  33[deg]43'........  77[deg]30'.
10..............................  33[deg]21'........  77[deg]21'.
11..............................  33[deg]18'........  77[deg]41'.
12..............................  33[deg]22'........  77[deg]56'.
13..............................  33[deg]12'........  78[deg]20'.
14..............................  33[deg]05'........  78[deg]22'.
15..............................  33[deg]01'........  78[deg]38'.
16..............................  32[deg]40'........  79[deg]01'.
17..............................  32[deg]36'........  79[deg]18'.
18..............................  32[deg]19'........  79[deg]22'.
19..............................  32[deg]16'........  79[deg]37'.
20..............................  32[deg]03'........  79[deg]48'.
21..............................  31[deg]39'........  80[deg]27'.
22..............................  30[deg]58'........  80[deg]47'.
23..............................  30[deg]13'........  81[deg]01'.
24..............................  29[deg]32'........  80[deg]39'.
25..............................  29[deg]22'........  80[deg]44'.
26..............................  28[deg]50'........  80[deg]22'.
27..............................  28[deg]21'........  80[deg]18'.
28..............................  28[deg]21'........  State/EEZ
                                                       boundary.
------------------------------------------------------------------------

    (iii) For the purpose of paragraph (b)(6) of this section, transit 
means non-stop progression through the area; fishing gear appropriately 
stowed means all black sea bass pot gear must be out of the water and 
on board the deck of the vessel. All buoys must either be disconnected 
from the gear or stowed within the sea bass pot. Disconnected buoys may 
remain on deck.
* * * * *

0
3. Sec.  622.189, add paragraph (g) to read as follows:


Sec.  622.189  Restrictions and requirements for sea bass pots.

* * * * *
    (g) Sea bass pot buoy line marking requirement. In addition to the 
gear marking requirements specified in 50 CFR 229.32(b), from November 
15 through April 15, each year, in the Southeast U.S. Restricted Area 
North as described in 50 CFR 229.32(f) and from September 1 through May 
31, each year in the Offshore Trap/Pot Waters Area and the Southern 
Nearshore Trap/Pot Waters Area, as described in 50 CFR 229.32(c)(6) and 
(9), respectively, the buoy line must be marked with a purple color 
band. The colored band must be clearly visible when the gear is hauled 
or removed from the water, including if the color of the rope is the 
same as, or similar, to the colored band. The purple band must be 
marked directly onto the line and adjacent to the buoy line markings 
specified in 50 CFR 229.32(b), that is, at the top, middle, and bottom 
of each buoy line deployed by, or on board, the vessel. Each of the 
three purple bands must be a 12-inch (30.5

[[Page 95903]]

cm) color mark. In marking or affixing the purple band, the line may be 
dyed, painted, or marked with thin colored whipping line, thin colored 
plastic, or heat-shrink tubing, or other material.

[FR Doc. 2016-31363 Filed 12-28-16; 8:45 am]
BILLING CODE 3510-22-P