Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Comprehensive Ecosystem-Based Amendment for the South Atlantic Region

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement the Comprehensive Ecosystem-Based Amendment 1 (CE-BA1) to the following South Atlantic fishery management plans (FMPs): The FMP for Coral, Coral reefs, and Live/Hard Bottom Habitats of the South Atlantic Region (Coral FMP); the FMP for the Dolphin and Wahoo Fishery off the Atlantic States (Dolphin and Wahoo FMP); the FMP for Golden Crab of the South Atlantic Region (Golden Crab FMP); the FMP for the Shrimp Fishery of the South Atlantic Region (Shrimp FMP); and the FMP for the Snapper-Grouper Fishery of the South Atlantic Region (Snapper-Grouper FMP), as prepared and submitted by the South Atlantic Fishery Management Council (Council); as well as the FMP for Coastal Migratory Pelagic (CMP) Resources (CMP FMP); and the FMP for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic (Spiny Lobster FMP), as prepared and submitted by the South Atlantic and Gulf of Mexico Fishery Management Councils. This final rule establishes Deepwater Coral Habitat Areas of Particular Concern (Deepwater Coral HAPCs) off the coast of the southern Atlantic states in which the use of specified fishing gear and methods and the possession of coral is prohibited. Within the Deepwater Coral HAPCs, fishing zones have been established that allow continued fishing on the historical grounds for golden crab and deepwater shrimp. This rule protects what is thought to be the largest distribution of pristine deepwater coral ecosystems in the world while minimizing the effects on traditional fishing in the Deepwater Coral HAPCs. Additionally, the amendment updates existing Essential Fish Habitat (EFH) information in the area off the southern Atlantic states, thus, addressing the need for spatial representation of designated EFH and EFH-HAPCs.

DATES:

This rule is effective July 22, 2010.

ADDRESSES:

Copies of the regulatory flexibility analysis, CE-BA1, the Final Environmental Impact Statement (FEIS), the Regulatory Impact Review, and the Social Impact Assessment/Fishery Impact Statement may be obtained from Karla Gore, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701-5505.

FOR FURTHER INFORMATION CONTACT:

Karla Gore, telephone: 727-824-5305.

SUPPLEMENTARY INFORMATION:

The fisheries for coastal migratory pelagics; coral, coral reefs, and live/hard bottom habitats; dolphin and wahoo; golden crab; shrimp; spiny lobster; and snapper-grouper off the southern Atlantic states are managed under their respective FMPs. The FMPs were prepared by the Council(s) and are implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The availability of CE-BA1 was announced in the Federal Register on March 4, 2010 (75 FR 9864). On March 26, 2010, NMFS published a proposed rule for CE-BA1 and requested public comment (75 FR 14548). NMFS approved CE-BA1 on June 1, 2010. This final rule establishes Deepwater Coral HAPCs off the coast of the southern Atlantic states in which the use of specified fishing gear and methods and possession of coral is prohibited. Within the Deepwater Coral HAPCs, fishing zones have been created that allow continued fishing on the historical grounds for golden crab and deepwater shrimp. The rationale for the measures contained in CE-BA1 is provided in the amendment and in the preamble to the proposed rule and is not repeated here.

Comments and Responses

The following is a summary of the comments NMFS received on the proposed rule and CE-BA1, and NMFS' respective responses. During the respective comment periods for CE-BA1 and the proposed rule, NMFS received five submissions from the public, Federal agencies, and non-governmental organizations. Of these, two comments expressed support for the actions proposed in CE-BA1. Three comments expressed concern with various aspects of the amendment and proposed rule, and are addressed below.

Comment 1: The Deepwater Shrimp Advisory Panel (AP) unanimously agreed on the alternative (Alternative 3), which would move the western boundary of the Stetson-Miami Terrace Deepwater Coral HAPC 6 miles (10 km) seaward, to account for discrepancies in the bathymetric data, and to allow for a drift zone in the event of an unforeseen circumstance, such as mechanical failure of a shrimp vessel. However, in the amendment, this alternative was not chosen as the preferred alternative.

Response: The Council acknowledged the Deepwater Shrimp AP's recommendation by including such an alternative for analysis in the FEIS. The fact that the Deepwater Shrimp AP unanimously agreed on this recommendation does not guarantee the Council will choose that alternative as their preferred alternative. This alternative was not chosen as the Council's preferred alternative because it would not address the objective of the amendment to protect vulnerable deepwater coral habitats. It would not prevent the shrimp fishery from operating in significant known and highly probable low- and high-relief deepwater coral habitats, it would allow the fishery to expand into non-traditional fishing grounds, and it would potentially create a gear conflict by allowing trawling within the major golden crab fishing area in the Middle Zone. Furthermore, the Council's Preferred Alternative (Alternative 2), was also endorsed by members of the Shrimp and Habitat APs.

Comment 2: The areas proposed as “Particular Concern” are not within the 219-fathom (400-m) bathymetric contour line where the Coral AP had originally stated the coral of concern would be found. These areas also include the historical fishing areas of the deepwater shrimp fishery, which likely do not contain corals. Response: The Coral AP stated that, in the South Atlantic, deepwater corals are generally distributed seaward of the 219-fathom (400-m) depth contour. However, off the Miami Terrace in Florida, deepwater coral habitat is often found inshore of the 219-fathom (400-m) contour, and the Coral and Habitat APs advised that this area very likely contains deepwater corals and should be encompassed within the Deepwater Coral HAPC.

The coral areas are of “Particular Concern” because scientific evidence indicates deepwater coral habitats are likely to occur there. While there is incomplete evidence of coral distribution in the South Atlantic, it can be inferred from bottom topography that some of these areas likely harbor deepwater corals. Therefore, the Council proposed establishing Deepwater Coral HAPCs as a proactive measure to protect the deepwater coral ecosystems in the South Atlantic.

Comment 3: The shrimp fishery access areas should be defined as areas in which the Vessel Monitoring System (VMS) data indicate some shrimp trawling has occurred, and are areas where deepwater corals are not thought to exist.

Response: VMS data indicate that approximately one percent of the deepwater shrimp fishery occurs within the designated shrimp fishery access areas subject to this rule. NMFS understands the shrimp fishery avoids deploying gear on or near the deepwater corals because of the high potential for gear damage. Therefore, NMFS concludes that if the deepwater shrimp fishery continues to operate in locations established as shrimp fishery access areas, potential encounters with deepwater corals are likely to be rare.

Comment 4: CE-BA1 does not address the potential impacts of resource management action on non-fishing industries such as offshore renewable energy.

Response: The Council operates under the mandate of the Magnuson-Stevens Act, and does not have authority to manage the activities of the renewable energy industry. CE-BA1 protects deepwater coral ecosystems from the impacts of bottom tending fishing gear while restricting the deepwater shrimp and golden crab fisheries to their traditional fishing grounds. CE-BA1 does not regulate non-fishing activities.

Comment 5: Current energy device deployment can be compatible with the Deepwater Coral HAPC designation. Specifically, the siting of an ocean current energy device or an array of devices and associated cables can be done in a very precise fashion that considers the locations of, and avoids impacts to, deepwater corals.

Response: NMFS agrees that the protection of deepwater coral ecosystems and the development of ocean-based renewable energy may be compatible. However, without details on the type, location, and scale of the renewable energy project, it is very difficult to make determinations about the potential impacts any renewable energy project may have on deepwater coral ecosystems.

Comment 6: The Council and NMFS should acknowledge that not all areas of the proposed Deepwater Coral HAPCs are densely covered with deepwater corals.

Response: NMFS agrees the entire area contained within the Deepwater Coral HAPCs is not densely covered with coral. However, the intent of the Deepwater Coral HAPCs is to establish protection, not only for the deepwater coral species themselves, but for the entire deepwater coral ecosystem which encompasses individual coral colonies, deepwater coral reefs and hard live bottom habitats, and interconnected benthic and pelagic systems.

Classification

The Administrator, Southeast Region, NMFS has determined that CE-BA1 is necessary for the conservation and management of deepwater coral ecosystems in the South Atlantic and is consistent with the Magnuson-Stevens Act, and other applicable laws.

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

NMFS prepared a Final Environmental Impact Statement (FEIS) for this amendment. A notice of availability for the FEIS was published on December 11, 2009 (74 FR 65773).

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. The basis for this certification follows:

This final rule establishes Deepwater Coral HAPCs off the coast of the southern Atlantic states in which the use of specified fishing gear and methods and the possession of coral will be prohibited. Within the Deepwater Coral HAPCs, fishing zones will be created that will allow continued fishing on the historical grounds for golden crab and deepwater shrimp.

This rule will directly affect commercial fishing entities that operate in the Deepwater Coral HAPCs and use gear types that are prohibited in the Deepwater Coral HAPCs, i.e., bottom longlines, trawls (mid-water and bottom), dredges, pots, or traps; anchor and chain; or grapple and chain; and/or possess coral in these Deepwater Coral HAPCs. Although many commercial species are found in these areas, only wreckfish, golden crab, and royal red shrimp are known to be currently harvested in these areas. Within the Deepwater Coral HAPCs, snapper-grouper fishermen, such as those that harvest wreckfish, may continue to fish with non-prohibited gear in the Deepwater Coral HAPCs and retain their harvest. As a result, the only entities expected to be potentially directly affected by this rule are those that fish for golden crab or royal red shrimp. However, this rule includes provisions to reduce any adverse economic impacts on entities that fish for these species. First, the Shrimp Fishery Access Areas will allow royal red shrimp fishing vessels with a rock shrimp limited access endorsement and equipped with an approved VMS to continue to operate in the historical royal red shrimp fishing areas without added costs. Second, the Golden Crab Fishery Access Areas within the Deepwater Coral HAPCs will allow golden crab fishing vessels to continue to use presently allowed gear in their historic fishing areas. There are six known vessels that fish for royal red shrimp in the South Atlantic, and two of these vessels are reported to fish for royal red shrimp full time. In 2007, combined landings of South Atlantic and Gulf of Mexico royal red shrimp peaked at approximately 507,000 lb (229,971 kg). With an average price of $4 per pound, total revenue from these landings in 2007, was approximately $2 million. Most vessels that do not fish full time for royal red shrimp operate in other shrimp fisheries. However, total annual revenue estimates for these vessels are not available.

Seven vessels reported landings of golden crab from 2004 to 2007, although a total of 11 vessels possessed a Federal golden crab permit for the South Atlantic EEZ during this period. Total dockside revenue from golden crab sales averaged $714,000 annually during the 4-year period (2004-2007), or approximately $102,000 annually per vessel. Vessels that operate in the golden crab fishery typically do not participate in other fisheries and therefore, the golden crab revenues generated by these vessels can be assumed to be the total annual revenues for these vessels.

The vessels that fish for royal red shrimp and golden crab represent businesses in the shellfish fishing industry (NAICS 114112). A small business as defined for the shellfish fishing industry does not have annual receipts in excess of $4.0 million, is independently owned and operated, and is not dominant in its field of operations. Based on the revenue profiles provided above, all vessels that operate in the royal red shrimp and golden crab fisheries are determined for the purpose of this analysis to be small businesses.

Vessels that fish for royal red shrimp are not required to have a federally issued rock shrimp limited access endorsement or an approved VMS; however, all royal red shrimp fishing vessels are believed to have both. Because this rule will allow royal red shrimp fishing vessels with a rock shrimp limited access endorsement and equipped with an approved VMS to continue fishing in their historic fishing areas, this rule is not expected to have any adverse economic impact on small businesses that fish for royal red shrimp.

Golden crab fishing presently occurs in the Stetson-Miami Terrace Deepwater Coral HAPC and Pourtales Terrace Deepwater Coral HAPC. The three Golden Crab Fishery Access Areas will allow golden crab fishing vessels to continue their existing fishing practices in traditional golden crab fishing areas. Therefore, this rule is not expected to result in any adverse economic impacts on small businesses that fish for golden crab.

No other potential direct adverse economic impacts on small entities have been identified. The information provided above supports a determination that this rule will not have a significant economic impact on a substantial number of small business entities. An Initial Regulatory Flexibility Act (IRFA) analysis was prepared for the proposed rule and the resultant analysis concluded the same finding of no significant economic impact. Public comment was solicited on this determination through the proposed rule (75 FR 14548). No challenge of this determination or other substantive issues were received through public comment on the proposed rule and, thus, no changes were made to the economic analysis in the final rule. Accordingly, a final regulatory flexibility analysis was not required or prepared. Copies of the RIR and Regulatory Flexibility Act Analysis are available (see ADDRESSES).

List of Subjects in 50 CFR Part 622

• Fisheries
• Fishing
• Puerto Rico
• Reporting and recordkeeping requirements
• Virgin Islands

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

PART 622—FISHERIES OF THE CARIBBEAN, GULF, 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 § 622.35, paragraph (n) is added to read as follows: