Clarification of Magnuson-Stevens Fishery Conservation and Management Act Regulation Regarding Monitor National Marine Sanctuary; Proposed Rulemaking, 68389-68391 [2019-27052]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 84, Number 241 (Monday, December 16, 2019)]
[Proposed Rules]
[Pages 68389-68391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27052]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 191209-0103]
RIN 0648-BI82


Clarification of Magnuson-Stevens Fishery Conservation and 
Management Act Regulation Regarding Monitor National Marine Sanctuary; 
Proposed Rulemaking

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS is proposing to clarify its regulation which interprets 
other regulations to prohibit all fishing in the Monitor National 
Marine Sanctuary (Sanctuary). This is inconsistent with the applicable 
Sanctuary regulation that prohibits some, but not all, fishing activity 
in the Sanctuary. This proposed rule would revise regulations by 
removing the fishing prohibition text and cross-referencing the 
Sanctuary regulations instead.

DATES: Comments must be received by January 15, 2020.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2019-0114, 
by the following method:
    Electronic Submissions: Submit all electronic public comments via 
the Federal e-Rulemaking portal: https://www.regulations.gov.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments.

FOR FURTHER INFORMATION CONTACT: Chris Wright, Fishery Policy Analyst, 
301-427-8504, or via email [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Sanctuary was designated as the nation's first national marine 
sanctuary in 1975. The site protects the wreck of the famed Civil War 
ironclad U.S.S. Monitor. The U.S.S. Monitor is located approximately 15 
miles southeast of Cape Hatteras, North Carolina. The Sanctuary 
currently surrounds the shipwreck and consists of a vertical column of 
water one mile (1.61 km) in diameter (0.78 square miles (2.02 square 
km) in size) extending from the seabed to the surface, the center of 
which is at 35[deg]00'23'' north latitude and 75[deg]24'32'' west 
longitude (15 CFR 922.60). The U.S.S. Monitor is in water depths of 240 
feet (22.3 m).
    Fishing in Federal waters off North Carolina is economically and 
socially vital to the state's residents, visitors, and coastal 
communities. Commercial and recreational fishing provides an important 
source of employment, income, recreation, and food, and is a 
significant driver for local tourism.
    The United States claims sovereign rights and exclusive fishery 
management authority over fish within the U.S. Exclusive Economic Zone 
(EEZ), an area extending 200 nautical miles (370.4 km) from the seaward 
boundary of coastal states and U.S. territories (16 U.S.C. 1811(a)). 
Within the EEZ, Federal fishery management is conducted under the 
authority of the Magnuson Stevens Fishery Conservation and Management 
Act (MSA) (16 U.S.C. 1801 et seq.). NMFS, acting under authority 
delegated from the Secretary of Commerce, is responsible for managing 
fisheries pursuant to the MSA. To assist in fishery management, the MSA 
established eight regional fishery management councils that develop and 
submit fishery management plans to NMFS (16 U.S.C. 1852(a)) for 
specific geographic areas. NMFS is responsible for developing fishery 
management plans for Atlantic highly migratory species (16 U.S.C. 
1852(a)(3)).
    This action affects regulations codified in the General Provisions 
for Domestic Fisheries (50 CFR part 600, subpart H). The proposed 
action would alleviate the potential for confusion regarding the 
fishing restrictions applicable to the Monitor National Marine 
Sanctuary or other sanctuaries. NMFS is taking this action pursuant to 
MSA Sec.  305(d), which gives the Agency general authority to carry out 
fishery management plans adopted under the MSA.

[[Page 68390]]

Current Regulations Affecting Fishing

    A Sanctuary regulation (15 CFR 922.61) includes specific 
restrictions applicable to fishing. Provisions that limit fishing and 
activities associated with fishing are: Anchoring in any manner, 
stopping, remaining, or drifting without power at any time; diving of 
any type, whether by an individual or by a submersible; lowering below 
the surface of the water any grappling, suction, conveyor, dredging or 
wrecking device; and trawling.
    In reviewing its regulations, NMFS noted that 50 CFR 600.705(f) 
cross-references the Sanctuary regulation, but includes broader 
language that prohibits ``all fishing activity'' in the Sanctuary.
    The marine sanctuary regulations under 15 CFR part 924 were changed 
to 15 CFR part 922, on December 27, 1995 (60 FR 66875). The broader 
prohibition on all fishing at 50 CFR 600.705(f) appears to be 
inadvertent and the result of consolidation of regulations for specific 
fisheries into the General Provisions for Domestic Fisheries.

Proposed Action

    This proposed action will remove text at 50 CFR 600.705(f), which 
states that all fishing in the Sanctuary is prohibited by Sanctuary 
regulations. This text is unnecessary and inconsistent with the 
Sanctuary's regulations and policies, which prohibit some, but not all, 
fishing activity in the Sanctuary. In 50 CFR 600.705(f), NMFS will 
retain an updated cross-reference to the Office of National Marine 
Sanctuaries' regulations at 15 CFR part 922.

Classification

    The NMFS Assistant Administrator has determined that the proposed 
rule is consistent with the MSA and other applicable laws, subject to 
further consideration after public comment.
    This proposed action has been determined to be not significant for 
the purposes of Executive Order 12866.
    This rule is expected to be an Executive Order 13771 deregulatory 
action.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. A description of the factual basis for this determination 
follows.
    This proposed rule removes an unnecessary fishery regulation that 
inadvertently included an overly broad interpretation of a Sanctuary 
regulation. The existing Sanctuary regulation will continue to prohibit 
stopping, remaining, or drifting without power in the Sanctuary, which 
significantly curtails most fishing activity in the Sanctuary. The 
proposed action could result in a slight increase in fishing activity 
in the Sanctuary, to the extent that NMFS's regulation had discouraged 
such activity.
    This rule would remove an unnecessary regulation that applies to 
vessels (businesses) in the commercial harvesting and for-hire fishing 
industries. The SBA has established size criteria for all major 
industry sectors in the U.S., including fish harvesters. On December 
29, 2015, NMFS issued a final rule establishing a small business size 
standard of $11 million in annual gross receipts for all businesses 
primarily engaged in the commercial fishing industry (NAICS 11411) for 
Regulatory Flexibility Act (RFA) compliance purposes only (80 FR 
81194). The $11 million standard became effective on July 1, 2016, and 
is to be used in place of the SBA's 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 (80 FR 81194, December 29, 2015).
    On July 18, 2019, the SBA issued an interim final rule (84 FR 
34261) effective August 19, 2019, that adjusted the monetary-based 
industry size standards (i.e., receipts- and assets-based) for 
inflation for many industries. For fisheries for-hire businesses, the 
rule changes the small business size standard from $7.5 million in 
annual gross receipts to $8 million (See 84 FR at 34273) (adjusting 
NAICS 487990 (Scenic and Sightseeing Transportation, Other)).
    Commercial fishing vessels whose owners possess valid commercial 
permit(s) for the South Atlantic EEZ (e.g., Tunas General category, 
Atlantic Tunas Longline, Atlantic Tunas Harpoon, Dolphin/Wahoo, and 
Atlantic Swordfish General Commercial) and harvest eligible species 
with hook and line or longline gear off the coast of North Carolina may 
be affected by this rule. As of May 7, 2019, 2633 vessels with valid 
commercial permits for the South Atlantic EEZ reported landings using 
hook and line or longline gear with 233 hailing from North Carolina. Of 
these, 82 of the 233 vessels landed in North Carolina in 2018. These 82 
entities could be directly affected by this action.
    The for-hire fleet is comprised of charter vessels, which charge a 
fee on a vessel basis, and headboats, which charge a fee on an 
individual angler (head) basis. The harvest of various species in the 
EEZ by for-hire vessels requires a charter vessel/headboat permit 
(e.g., Atlantic Highly Migratory Species Charter/Headboat, Atlantic 
Charter/Headboat for Dolphin Wahoo, South Atlantic Charter/Headboat for 
Pelagic Fish, and South Atlantic Charter/Headboat for Snapper/Grouper). 
The registration address for the Federal permit does not restrict 
operation to Federal waters off that state. As of September 19, 2019, 
there were 4904 vessels with valid or renewable for-hire permits. Of 
the 4904 vessels, 497 vessels were registered in North Carolina, with 
several entities owning multiple vessels. Based on the registered 
permit address, 439 for-hire businesses eligible to fish in the EEZ off 
North Carolina could be directly affected by the proposed action.
    The Sanctuary is relatively small, covering approximately one mile 
(1.61 km) in diameter (0.78 square miles in size; 2.02 square km). 
Limited data is available to determine how much harvesting activity is 
currently occurring or may occur in the Sanctuary if NMFS clarifies its 
regulation as proposed. As such, it is not possible to quantitatively 
determine the potential effects of this proposed rule. Considerable 
uncertainty exists regarding those potential effects. However, it is 
highly likely the economic benefits would be neutral to a slight 
increase. Vessels that might have been discouraged from fishing by 
NMFS's regulation may seek to fish in the Sanctuary, consistent with 
the Sanctuary regulations, if NMFS's rule is clarified as proposed. 
However, given the presence of similar or better fishing grounds closer 
to shore which are not subject to the Sanctuary's restrictions, vessels 
may not seek to fish in the Sanctuary.
    NMFS assumes that the 82 commercial fishing vessels and 439 for-
hire businesses, described above, are small entities and has determined 
that possible impacts of this proposed rule on those entities will not 
be significant.
    Because this rule, if implemented, is not expected to have a 
significant adverse economic effect on the profits of a substantial 
number of small entities, an initial regulatory flexibility analysis is 
not required and none has been prepared.

List of Subjects in 50 CFR Part 600

    Fisheries, Fishing, Reporting and recordkeeping requirements.


[[Page 68391]]


    Dated: December 9, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator, National Marine Fisheries Service.

    For the reasons stated in the preamble, 50 CFR part 600 is proposed 
to be amended as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

0
1. The authority citation for part 600 continues to read as follows:

    Authority:  5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

0
2. In Sec.  600.705, revise paragraph (f) to read as follows:


Sec.  600.705  Relation to other laws.

* * * * *
    (f) Marine sanctuaries. Regulations governing fishing activities 
inside the boundaries of national marine sanctuaries are set forth in 
15 CFR part 922.
* * * * *
[FR Doc. 2019-27052 Filed 12-13-19; 8:45 am]
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