Fisheries of the Northeastern United States; Black Sea Bass Fishery; 2018 February Recreational Season Modification, 4601-4604 [2018-02025]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 83, Number 22 (Thursday, February 1, 2018)]
[Rules and Regulations]
[Pages 4601-4604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-02025]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 171023999-8070-02]
RIN 0648-BH35


Fisheries of the Northeastern United States; Black Sea Bass 
Fishery; 2018 February Recreational Season Modification

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

ACTION: Final rule.

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SUMMARY: NMFS is implementing regulations to open a 2018 February 
recreational season in the Federal black sea bass fishery. This action 
provides additional recreational fishing opportunities in winter, while 
maintaining management measures to prevent overfishing consistent with 
the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan. 
This rule is intended to inform the public of this new 2018 
recreational season.

DATES: Effective February 1 through February 28, 2018.

ADDRESSES: Copies of the Environmental Assessment (EA), Regulatory 
Flexibility Act Analyses, and other supporting documents for the action 
are available upon request from Dr. Christopher M. Moore, Executive 
Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. 
State Street, Dover, DE 19901.

FOR FURTHER INFORMATION CONTACT: Cynthia Hanson, Fishery Management 
Specialist, (978) 281-9180.

SUPPLEMENTARY INFORMATION: 

General Background

    Black sea bass are jointly managed by the Mid-Atlantic Fishery 
Management Council (Council) and the Atlantic States Marine Fisheries 
Commission (Commission) as part of the joint Summer Flounder, Scup, and 
Black Sea Bass Fishery Management Plan (FMP). States manage black sea 
bass within 3 nautical miles (4.83 km) of their coasts under the 
Commission's plan. The applicable Federal regulations govern vessels 
and individual anglers fishing in Federal waters of the exclusive 
economic zone (EEZ), as well as vessels possessing a Federal black sea 
bass charter/party vessel permit, regardless of where they fish. This 
rule applies to black sea bass (Centropristis striata) in U.S. waters 
of the Atlantic Ocean from 35 E 13.3' N lat. (the latitude of Cape 
Hatteras Lighthouse, Buxton, North Carolina) northward to the U.S./
Canada border.
    This action implements the addition of a Federal recreational black 
sea bass fishing season during February of 2018. Additional background 
information regarding the development of this action was provided in 
the proposed rule (83 FR 780; January 8, 2018) and is not repeated 
here. The Federal recreational measures for the remainder of 2018 are 
still in development and will be implemented through a separate 
rulemaking later this spring.

Final Action

    This action implements a 28-day winter season for the 2018 
recreational black sea bass fishery during the month of February. The 
current black sea bass recreational management measures of a 12.5-inch 
(31.75-cm) minimum size and 15-fish possession limit still apply during 
this February season. As explained in the proposed rule, this action 
responds to the favorable 2016 benchmark stock assessment for black sea 
bass, and is intended to increase recreational fishing access to a 
stable stock at a time of year when few other recreational species are 
available.
    Two states, North Carolina and Virginia, have formally declared 
their intent to participate in the February 2018 recreational season. 
To confirm their participation, both states

[[Page 4602]]

submitted a plan to offset their expected harvest during this winter 
season through their recreational management measures for remainder of 
the 2018 fishing year.
    Commission-based measures implemented by states may vary by state, 
and differ from the Federal water measures. Because only Virginia and 
North Carolina have committed to participate in this winter season, the 
fishery will only be open for these states. Federal permit holders are 
required to adhere to the more restrictive set of measures irrespective 
of whether the vessel is fishing in state or Federal waters. Similarly, 
private anglers must adhere to the recreational measures implemented by 
the state in which the fish will be landed as all the state-implemented 
measures place restrictions on season, minimum fish size, and per-
angler possession limit. For additional information on state-
implemented management measures, please contact the marine fisheries 
management agency for the state in question or the Commission 
(www.asmfc.org; 703-842-0740).

Comments and Responses

    The public comment period for the proposed rule ended on January 
23, 2018. Thirteen comments were received from the public on this rule. 
Many of the comments expressed similar concerns.
    Comment 1: One commenter was dissatisfied with the regulatory 
flexibility analysis (RFA) process and believed that more input from 
small businesses should have been taken into account during the 
development stage of this rule.
    Response 1: Thorough RFA analyses were prepared for this action 
consistent with Small Business Administration guidance. The action was 
also discussed at several public Council and Commission meetings where 
the concerns of small businesses were considered. This comment did not 
raise specific issues regarding the proposed rule or the economic 
impact analyses summarized in the initial RFA for this action. Rather, 
the commenter stated frustrations with the RFA process in general, 
stating that RFA regulations need to be updated and the small business 
community needs to be better included in policy discussions during 
their development. These are larger changes that are outside the 
purview of this action.
    Comment 2: One commenter was in favor of this action and is looking 
forward to increased fishing opportunity.
    Response 2: NMFS agrees and notes that increased opportunity is a 
key purpose of this action.
    Comment 3: Several commenters opposed implementation of the 
proposed season, stating concerns over the reduction in the 
recreational harvest limit for the rest of the 2018 fishing year, the 
inability of northern states to adequately participate due to weather 
conditions, the unfavorable coastal distribution of black sea bass in 
February, and the feasibility of the season overall. Many of these 
commenters noted that better opportunities would be created by 
lengthening the existing seasons into April or October or changing the 
bag limits.
    Response 3: The purpose of this action is to create more 
recreational fishing access and opportunity at a time when other 
options are limited or restricted in the winter. There are more varied 
recreational opportunities in the later months of the year. Only 
Virginia and North Carolina have committed to participate in this 
February season, so only those states will need to account for any 
catch during the rest of the 2018 fishing year. The expected harvest 
from these two states is expected to be minimal and will not 
appreciably reduce the quota available for the summer and fall fishery.
    Comment 4: One commenter was upset about Federal agencies' varied 
interpretations and implementations of the National Environmental 
Policy Act (NEPA), arguing that state and local governments should play 
a larger role in cooperative actions to better represent the ``human 
environment.''
    Response 4: A full environmental assessment (EA) was prepared 
consistent with applicable NEPA guidance and Council for Environmental 
Quality (CEQ) requirements. This action was also developed with full 
collaboration from state agencies through the Commission. No comments 
were received that raised specific concerns or that noted deficiencies 
with the prepared NEPA analyses in support of this action.
    Comment 5: The Massachusetts Division of Marine Fisheries (MA DMF) 
submitted a comment raising concerns about the lack of data, reporting, 
and accountability during Wave 1 in the recreational fishery. They also 
expressed concern about the potential implications of this season on 
future recreational rulemaking for states at the Commission level, and 
Council decisions at the Federal level.
    Response 5: The Council and Commission openly acknowledged these 
concerns during this action's development. Furthermore, NMFS agrees, 
which is why the 2018 fishing opportunity is restricted to February and 
is, by design, a small scale endeavor to increase access with minimum 
risk. The Council is considering options to address the noted reporting 
and accountability issues in its development of the Wave 1 recreational 
Letter of Authorization program for 2019 and future years. NMFS 
encourages MA DMF to continue raising these concerns with the Council 
and Commission during continued development of a Wave 1 recreational 
black sea bass fishery.
    Comment 6: One commenter asked that we protect the livelihoods of 
commercial fishermen.
    Response 6: NMFS agrees and considers this a critical component of 
its overall mandate. However, this comment does not pertain to the 
subject action, which involves the recreational fishery.
    Comment 7: One commenter claimed that black sea bass are 
intelligent and should not be farmed to extinction.
    Response 7: The recent 2016 benchmark stock assessment showed that 
wild black sea bass populations are thriving at nearly three times the 
biomass target, and not at risk of extinction. Also, this action 
pertains to recreational fishing activities, not aquaculture or marine 
farming practices.

Changes From the Proposed Rule

    There are no changes from the proposed rule.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this final rule is 
consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, 
other provisions of the Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final rule does not duplicate, conflict, or overlap with any 
existing Federal rules.
    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
under 5 U.S.C. 553(d)(3) to waive the 30-day delay of effectiveness 
period for this rule, to ensure that the action is in place on or about 
February 1, 2018. This action implements an additional Federal black 
sea bass recreational season during February 2018. A delay in its

[[Page 4603]]

effectiveness would reduce the length of the open winter season; 
unnecessarily disadvantaging recreational anglers that wish to 
participate, and limiting the fishing opportunity that this action was 
meant to create.
    Furthermore, regulated parties do not require any additional time 
to come into compliance with this rule. Unlike actions that require an 
adjustment period, charter/party operators will not have to purchase 
new equipment or otherwise expend time or money to comply with these 
management measures. Rather, complying with this final rule simply 
means adhering to the existing management measures for black sea bass 
while the charter/party operators are engaged in fishing activities 
during the new open season. This action has been discussed at multiple 
Council and Commission public meetings throughout its development and 
is expected by the recreational fishing sector.
    This rule is being issued at the earliest possible date. 
Preparation of the proposed rule was dependent on completion of the EA 
in support of the recommendations developed by the Council and 
Commission. Documentation in support of the Council's recommended 
specifications is required for us to provide the public with 
information from the environmental and economic analyses, as required 
in rulemaking, and to evaluate the consistency of the Council's 
recommendation with the Magnuson-Stevens Act and other applicable law. 
The Council's decision to recommend a February season was not final 
until December 13, 2017, and a complete document was finalized in late 
December 2017. Due to this tight timeline, we were unable to prepare 
this action early enough to allow for both an appropriate public 
comment period and a 30-day delay in effectiveness. The proposed rule 
published on January 8, 2018, with a 15-day comment period ending 
January 23, 2018. This action creates an additional Federal 
recreational season for black sea bass and increases fishing 
opportunity and access in the winter that would otherwise be 
constrained under the current seasons. If this final rule were delayed 
for 30 days, the proposed 28-day recreational season would be severely 
shortened or may not become effective at all. This would diminish any 
opportunity created by opening a winter season, and would be contrary 
to the purpose of the action. For these reasons, a 30-day delay in 
effectiveness would be contrary to the public interest and is therefore 
waived.

Final Regulatory Flexibility Analysis

    The final regulatory flexibility analysis (FRFA) included in this 
final rule was prepared pursuant to 5 U.S.C. 604(a), and incorporates 
the initial regulatory flexibility analysis (IRFA) and a summary of 
analyses completed to support the action. A public copy of the 
environmental assessment/IRFA is available from the Council (see 
ADDRESSES). The preamble to the proposed rule included a detailed 
summary of the analyses contained in the IRFA, and that discussion is 
not repeated here.

A Summary of the Significant Issues Raised by the Public in Response to 
the IRFA, a Summary of the Agency's Assessment of Such Issues, and a 
Statement of Any Changes Made in the Final Rule as a Result of Such 
Comments

    NMFS received one comment on the RFA process in general, stating 
that RFA regulations need to be updated and the small business 
community needs to be afforded more inclusion in policy discussions 
during their development. However, this comment did not raise specific 
issues regarding the proposed rule or the economic analyses summarized 
in the IRFA. Refer to the ``Comments and Responses'' section of this 
preamble for more detail. No changes to the proposed rule are necessary 
as a result of the public comments.

Description and Estimate of Number of Small Entities to Which the Rule 
Would Apply

    This final rule affects small entities engaged in recreational fish 
harvesting operations within the black sea bass fishery. For the 
purposes of the RFA analysis, the ownership entities (or firms), not 
the individual vessels, are considered to be the regulated entities. 
Individually permitted vessels may hold permits for several fisheries, 
harvesting species of fish that are regulated by several different 
FMPs, even beyond those affected by this action. Furthermore, multiple-
permitted vessels and/or permits may be owned by entities affiliated by 
stock ownership, common management, identity of interest, contractual 
relationships, or economic dependency. Because of this, some 
individually permitted vessels may be part of the same firm because 
they have the same owner for the purpose of this analysis.
    In terms of the RFA, a business primarily engaged in for-hire 
fishing activity is classified as a small business if it has combined 
annual receipts not in excess of $7.5 million. The current ownership 
data set used for this analysis is based on calendar year 2016 (the 
most recent complete year available) and contains average gross sales 
associated with those permits for calendar years 2014 through 2016. 
According to the ownership database, there were 406 for-hire permits 
that generated revenues from recreational fishing for various species 
during the 2014-2016 period. Of these permits, there were 328 that were 
not affiliated with any other ownership group. The remaining 78 for-
hire vessels were comprised of affiliated ownership groups with between 
two and six for-hire vessels for a total of 359 for-hire affiliate 
firms; all of which are categorized as small businesses. Although it is 
not possible to derive what proportion of the overall revenues came 
from specific fishing activities, further analysis conducted by the 
Council and NMFS during the development of this action identified that 
in 2016 there were 291 for-hire entities that recreationally caught 
black sea bass. In 2013, the last year that a recreational black sea 
bass fishery was open in January and February, 331 for-hire firms 
caught black sea bass recreationally; however, only 39 of those were 
active during the Wave 1 (January and February) period. While these are 
the best available estimates of potential participation in the February 
season implemented by this action, these numbers are not necessarily 
indicative of the number of entities that will actually participate. 
Overall, participation is expected to be low as only Virginia and North 
Carolina declared into the fishery, and general comments on the 
proposed rule suggest that businesses are primarily promoting and 
planning for the busier summer and fall seasons.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    No additional reporting, recordkeeping, or other compliance 
requirements are included in this final rule.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes

    NMFS is implementing the Council-recommended final rule to open a 
February recreational season in the 2018 black sea bass fishery to 
satisfy the Magnuson-Stevens Act requirements to ensure that fish 
stocks are not subject to overfishing, while allowing the greatest 
access to the fishery, and opportunity to

[[Page 4604]]

achieve optimum yield. The objective of this action is to increase 
fishing opportunity while maintaining catch within the recreational 
harvest limit and annual catch limit.
    As described in the proposed rule for this action, two other 
alternatives to the approved action were considered. Maintaining the 
status quo with no winter fishing did not take advantage of the 
favorable stock status or provide any additional access or opportunity 
in the recreational black sea bass fishery. Opening the fishery for 
both January and February could have created more recreational fishing 
opportunity in 2018; however, given the lack of recreational data 
available, the time constraints involved, and the potential 
disproportionate impacts to state recreational fisheries later in the 
year, this alternative was not selected. The action described in this 
final rule was chosen as the best feasible way to increase recreational 
fishing opportunity in the black sea bass fishery in 2018 with the 
lowest potential negative impact.

Small Entity Compliance Guide

    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.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit holders that also serves as 
small entity compliance guide was prepared and will be sent to all 
holders of Federal charter/party permits issued for the black sea bass 
fishery. In addition, copies of this final rule and guide (i.e., permit 
holder letter) are available from NMFS (see ADDRESSES) and at the 
following website: www.greateratlantic.fisheries.noaa.gov.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: January 29, 2018.
Chris Oliver,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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


Sec.  648.146   [Suspended]

0
2. Section 648.146 is suspended.

0
3. Section 648.150 is added to subpart I to read as follows:


Sec.  648.150   Black sea bass recreational fishing season.

    Vessels that are not eligible for a moratorium permit under Sec.  
648.4(a)(7), and fishermen subject to the possession limit specified in 
Sec.  648.145(a), may only possess black sea bass from February 1 
through February 28, May 15 through September 21, and October 22 
through December 31, unless this time period is adjusted pursuant to 
the procedures in Sec.  648.142.

[FR Doc. 2018-02025 Filed 1-31-18; 8:45 am]
 BILLING CODE 3510-22-P