[Federal Register Volume 79, Number 50 (Friday, March 14, 2014)]
[Proposed Rules]
[Pages 14466-14470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-05581]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 130403322-4180-01]
RIN 0648-BD08


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Dolphin and Wahoo Fishery Off the Atlantic States; Amendment 5

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

ACTION: Proposed rule; request for comments.

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[[Page 14467]]

SUMMARY: NMFS proposes regulations to implement Amendment 5 (Amendment 
5) to Fishery Management Plan for the Dolphin and Wahoo Fishery off the 
Atlantic States (FMP), as prepared and submitted by the South Atlantic 
Fishery Management Council (Council). If implemented, this rule would 
revise the annual catch limits (ACLS) and accountability measures (AMs) 
for the commercial and recreational sectors for dolphin and wahoo, and 
update the framework procedures for the FMP. The purpose of this rule 
is to help achieve optimum yield (OY) within the dolphin and wahoo 
fishery and to minimize socio-economic impacts, to the extent 
practicable, in accordance with the requirements of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

DATES: Written comments must be received on or before April 14, 2014.

ADDRESSES: You may submit comments on the proposed rule, identified by 
``NOAA-NMFS-2013-0170'' by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0170, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Nikhil Mehta, Southeast 
Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    Electronic copies of the amendment, which includes an environmental 
assessment, regulatory impact review, and Regulatory Flexibility Act 
analysis, may be obtained from the Southeast Regional Office Web site 
at http://sero.nmfs.noaa.gov/sustainable_fisheries/s_atl/dw/2013/am5/index.html.

FOR FURTHER INFORMATION CONTACT: Nikhil Mehta, telephone: 727-824-5305, 
or email: [email protected].

SUPPLEMENTARY INFORMATION: The dolphin and wahoo fishery off the 
Atlantic states 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 Act.

Background

    The final rule for the Comprehensive ACL Amendment included 
Amendment 3 to the FMP, which established ACLs (including ACL 
allocations to both the recreational and commercial sectors), 
acceptable biological catches (ABCs), recreational annual catch targets 
(ACTs), and accountability measures (AMs) for dolphin and wahoo (77 FR 
15916, March 16, 2012). Recreational catch estimates used in the 
Comprehensive ACL Amendment were determined with data collected by the 
Marine Recreational Fisheries Statistics Survey (MRFSS), which was the 
best scientific information available at that time. NMFS has made 
significant improvements in the data collection and catch estimation 
methodologies that are used to collect and analyze the recreational 
data for the computation of ABCs, as well as ACLs and ACTs. NMFS now 
estimates recreational landings using the Marine Recreational 
Information Program (MRIP).
    The MRIP collects recreational data on a more frequent basis and 
provides more accurate recreational catch estimates by accounting for 
potential biases such as possible differences in catch rates at high-
activity and low-activity fishing sites, as well as variation in 
fishing effort throughout the day. As described in Amendment 5, the 
MRIP values used to estimate recreational landings, along with updates 
to headboat and commercial landings, are the best scientific 
information available to revise the ABC catch estimates, ACLs, 
recreational ACTs, and AMs for dolphin and wahoo. Updates to the 
commercial and headboat landings were included in the revisions to the 
ACLs and ACTs, because the ABC control rule and subsequent ABCs and 
ACLs established in the Comprehensive ACL Amendment used data from both 
the recreational and commercial sectors (77 FR 15916, March 16, 2012). 
The headboat and commercial data updates reflect NMFS's ongoing data 
quality assurance and quality control protocols and reflect the best 
available scientific information.
    These revisions are necessary because if the ABC, ACL, and ACT 
values are not updated using the new MRIP estimates, the recreational 
ACLs would be based on MRFSS data, while the landings being used to 
track the recreational ACLs would be estimated using MRIP data. If this 
change is not made, it would result in inconsistencies in how the ACLs 
are calculated versus how the ACLs are monitored.

Management Measures Contained in This Proposed Rule

    This proposed rule would revise the ACLs and AMs for dolphin and 
wahoo, and revise the framework procedures for the FMP.

Dolphin Commercial and Recreational ACLs

    This proposed rule would revise the dolphin commercial and 
recreational ACLs. The dolphin commercial ACL would be increased from 
1,065,524 lb (483,314 kg) to 1,157,001 lb (524,807 kg). The dolphin 
recreational ACL would be increased from 13,530,692 lb (6,137,419 kg) 
to 14,187,845 lb (6,435,498 kg). The effects of the increases in the 
ACLs for dolphin are expected to be negligible to the stock and the 
human environment.

Wahoo Commercial and Recreational ACLs

    This proposed rule would revise the wahoo commercial and 
recreational ACLs. The wahoo commercial ACL would be increased from 
64,147 lb (29,097 kg) to 70,542 lb (31,997 kg). The wahoo recreational 
ACL would be increased from 1,427,638 lb (647,566 kg) to 1,724,418 lb 
(782,183 kg). The effects of the increases in ACLs for wahoo are 
expected to be negligible to the stock and the human environment.

Dolphin and Wahoo Commercial AMs

    The current commercial AMs for dolphin and wahoo close the 
commercial sector for the respective species for the remainder of the 
fishing year, if commercial landings as estimated by the Science and 
Research Director (SRD) reach, or are projected to reach, the 
commercial ACL (in-season closure).
    This proposed rule would also provide that if the commercial ACL is 
met or projected to be met, then the commercial ACL for the respective 
species in the following fishing year would be reduced by the amount of 
the commercial ACL overage. However, the commercial ACL overage 
adjustment would only be applied if the species is overfished and the 
total ACL (combined commercial and recreational ACLs) is exceeded. The 
Council determined the commercial ACL overage adjustment (payback), 
combined with the in-season AM closure would offer greater

[[Page 14468]]

protection to the stocks and provided the best management strategy for 
the commercial sector based on the biology and recent catch levels of 
dolphin and wahoo.

Dolphin and Wahoo Recreational AMs

    The current recreational AMs for dolphin and wahoo provide that if 
recreational landings, as estimated by the SRD, exceed the recreational 
ACL, then during the following fishing year, recreational landings will 
be monitored for a persistence in increased landings and, if necessary, 
the NMFS Southeast Regional Administrator (RA) shall publish a notice 
to reduce the length of the following recreational fishing season by 
the amount necessary to ensure recreational landings do not exceed the 
recreational ACL in the following fishing year. However, the length of 
the recreational season will also not be reduced during the following 
fishing year if the RA determines, using the best scientific 
information available, that a reduction in the length of the following 
fishing season is unnecessary.
    This proposed rule would modify the recreational AM to reduce the 
length of the fishing season and the recreational ACL in the fishing 
year following any recreational sector ACL overage, if the stock is 
overfished and the total ACL (commercial and recreational ACLs 
combined) is exceeded. However, the recreational ACL overage adjustment 
and fishing season reduction would not be applied if the RA determines, 
using the best scientific information available, that such a reduction 
is unnecessary. The ability to reduce the recreational ACL when an 
overage of the respective ACL occurs would provide additional 
protection to the dolphin and wahoo stocks. The Council determined that 
this set of AMs best meets the objectives of the FMP, while complying 
with the requirements of the Magnuson-Stevens Act.

Dolphin and Wahoo FMP Framework Procedures

    The current framework procedure for dolphin and wahoo was 
implemented in 2004 through the FMP (69 FR 30235, May 27, 2004). While 
comprehensive, the framework does not incorporate recent developments 
such as ACLs, ABC control rule, AMs, and the roles of the Council's 
Southeast Data, Assessment, and Review (SEDAR) process for stock 
assessments, and Scientific and Statistical Committee's (SSC) role in 
reviewing SEDAR data for the Council.
    This proposed rule would revise the framework procedures for the 
FMP to add an ABC control rule, ACLs, ACTs, and AMs to the measures 
that could be revised via the regulatory amendment process. 
Additionally, this proposed rule would allow an ABC, ACL, and ACT to be 
modified using an abbreviated framework procedure, whereby after the 
Council has taken final action to change an ABC, ACL, and/or ACT, the 
Council would submit a letter to the RA containing an analysis of the 
relevant biological, economic, social, and administrative information 
necessary to support the action. Based on the information provided by 
the Council, the RA would determine whether or not the requested 
modifications are warranted. If the requested modifications may be 
warranted, NMFS would develop the appropriate documentation to comply 
with the National Environmental Policy Act and other applicable law, 
and propose the action through rulemaking. NMFS anticipates this 
expedited process will shorten the time it would take to make routine 
changes to harvest limits in response to new scientific information, 
while allowing the public adequate time to comment on any change.

Additional Measures in Amendment 5 That Are Not Contained in This 
Proposed Rule

    In addition to the measures in this proposed rule, this rule 
publishes for the public's convenience, certain measures contained in 
Amendment 5. Amendment 5 would revise the ABCs and recreational ACTs 
for dolphin and wahoo. Amendment 5 would increase the ABC for dolphin 
from 14,596,216 lb (6,620,732 kg) to 15,344,846 lb (6,960,305 kg). The 
ABC for wahoo would increase from 1,491,785 lb (676,662 kg) to 
1,794,960 lb (814,180 kg). The revised ABCs would be established using 
MRIP data as opposed to using MRFSS data, as was used to establish the 
current ABCs.
    Amendment 5 would also increase the current dolphin recreational 
ACT of 11,595,803 lb (5,259,768 kg) to 12,769,061 (5,791,949 kg) and 
the current wahoo recreational ACT of 1,164,953 lb (528,414 kg) to 
1,258,825 lb (570,993 kg). The current recreational ACTs for dolphin 
and wahoo, implemented in the Comprehensive ACL Amendment, function as 
performance standards, and do not have management measures associated 
with them, such as triggering AMs (77 FR 15916, March 16, 2012).

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
Assistant Administrator has determined that this proposed rule is 
consistent with Amendment 5, the FMP, Magnuson-Stevens Act and other 
applicable law, subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Magnuson-Stevens Act provides the statutory basis for this 
rule.
    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 rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this determination is as follows:
    This proposed rule is expected to directly affect commercial 
fishermen and for-hire operators in the Atlantic. The SBA established 
size criteria for all major industry sectors in the U.S. including fish 
harvesters and for-hire operations. A business involved in fish 
harvesting is classified as a small business if independently owned and 
operated, is not dominant in its field of operation (including its 
affiliates), and its combined annual receipts are not in excess of 
$19.0 million (NAICS code 114111, finfish fishing) for all of its 
affiliated operations worldwide. For for-hire vessels, other qualifiers 
apply and the annual receipts threshold is $7.0 million (NAICS code 
487210, fishing boat charter operation). The SBA periodically reviews 
and changes, as appropriate, these size criteria. On June 20, 2013, the 
SBA issued a final rule revising the small business size standards for 
several industries effective July 22, 2013 (78 FR 37398). That rule 
increased the size standard for commercial finfish harvesters from $4.0 
million to $19.0 million. Neither that rule, nor other recent SBA 
rules, changed the size standard for for-hire vessels.
    From 2008-2012, an annual average of 554 vessels with valid Federal 
permits to operate in the commercial sector of the Atlantic dolphin-
wahoo fishery landed at least 1 lb (0.6 kg) of dolphin. These vessels 
generated average annual dockside revenues of approximately $4.4 
million (2011) from all species caught in the same trips as dolphin, of 
which $591,000 (2011 dollars) were from dolphin. Each commercial 
vessel, therefore, generated an annual average of approximately $8,000 
in gross revenues, of which $1,000 were from dolphin. For the same 
period, an annual average of 211 vessels with valid Federal permits to 
operate in the commercial sector of the dolphin-wahoo fishery landed at 
least 1 lb (0.6 kg) of wahoo. These vessels generated

[[Page 14469]]

annual dockside revenues of approximately $673,000 (2011) from all 
species caught in the same trips as wahoo, of which $71,000 (2011 
dollars) were from wahoo. Each vessel, therefore, generated an annual 
average of approximately $3,183 in gross revenues, of which $335 were 
from wahoo. Vessels that caught and landed dolphin or wahoo may also 
operate in other fisheries, the revenues of which are not reflected in 
these totals. Based on revenue information, all commercial vessels 
affected by the rule can be considered small entities.
    From 2008-2012, an annual average of 2,005 vessels had valid or 
renewable Federal permits to operate in the for-hire component of the 
recreational sector of the Atlantic dolphin-wahoo fishery. As of April 
23, 2013, 1,623 vessels held a Federal charter/headboat permit for 
Atlantic dolphin/wahoo, and about 75 of those vessels are estimated to 
have operated as headboats in 2013. The for-hire fleet consists of 
charter boats, which charge a fee on a vessel basis, and headboats, 
which charge a fee on an individual angler (head) basis. Average annual 
revenues (2011 dollars) for charter boats are estimated to be $126,032 
for Florida vessels, $53,443 for Georgia vessels, $100,823 for South 
Carolina vessels, and $101,959 for North Carolina vessels. For 
headboats, the corresponding estimates are $209,507 for Florida vessels 
and $153,848 for vessels in the other states. Headboat revenues for 
states other than Florida are aggregated to prevent disclosure of 
otherwise confidential information. For the Northeast (states north of 
North Carolina), in 2010, the average gross revenue for headboats was 
approximately $214,000 and $28,000 for charter vessels. The Northeast 
information is not currently available on a state by state basis. Based 
on these average revenue figures, all for-hire operations that would be 
affected by the rule can be considered small entities.
    This proposed rule would revise the ABCs, ACLs, and ACTs for 
dolphin and wahoo to reflect data from MRIP and other data updates. The 
resulting revisions would slightly increase the values for these 
parameters, thus resulting in slight economic benefits for the dolphin 
and wahoo commercial and recreational sectors.
    This proposed rule would revise the commercial and recreational AMs 
for dolphin and wahoo by introducing ACL overage adjustment (payback) 
provisions, but only if the stocks are overfished and the aggregate 
commercial and recreational ACLs are exceeded. Since dolphin is 
currently neither overfished nor undergoing overfishing, introduction 
of a payback provision has no short-term economic effects on the 
commercial and recreational sectors. Although a stock assessment for 
wahoo will be done in 2015, there are indications that the stock is 
healthy because of its life history. In addition, and based on the last 
5 years of landings, both the commercial and recreational sector ACLs 
for wahoo are unlikely to be exceeded during a fishing year in the near 
future. These revisions to the AMs for dolphin and wahoo are therefore 
expected to have no short-term economic effects on small entities.
    NMFS considered one alternative, the ``no action'' alternative, to 
the commercial and recreational AMs for dolphin and wahoo. The no 
action alternative does not have payback provisions; however, AMs would 
apply regardless of stock status. In addition, the application of 
sector-specific AMs is dependent only on a sector's ACL being exceeded 
or expected to be exceeded and not on the aggregate commercial and 
recreational ACLs.
    This proposed rule would also modify the framework procedures for 
the FMP. The proposed revisions are administrative in nature and 
therefore have no direct economic effects on small entities.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified. In addition, no new reporting, record-keeping, or other 
compliance requirements are introduced by this proposed rule. 
Accordingly, this rule does not implicate the Paperwork Reduction Act.
    The information provided above supports a determination that this 
rule would not have a significant economic impact on a substantial 
number of small entities. Because this rule, if implemented, is not 
expected to have significant economic impact on any small entities, an 
initial regulatory flexibility analysis is not required and none has 
been prepared.

List of Subjects in 50 CFR Part 622

    Atlantic, Dolphin, Fisheries, Fishing, Wahoo.

    Dated: March 7, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 622 is 
proposed to be 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.  622.280, paragraphs (a) and (b) are revised to read as 
follows:


Sec.  622.280  Annual catch limits (ACLs) and accountability measures 
(AMs).

    (a) Atlantic dolphin--(1) Commercial sector. (i) If commercial 
landings for Atlantic dolphin, as estimated by the SRD, reach or are 
projected to reach the commercial ACL of 1,157,001 lb (524,807 kg), 
round weight, the AA will file a notification with the Office of the 
Federal Register to close the commercial sector for the remainder of 
the fishing year. On and after the effective date of such a 
notification, all sale or purchase of Atlantic dolphin is prohibited 
and harvest or possession of this species in or from the South Atlantic 
EEZ is limited to the bag and possession limit. This bag and possession 
limit applies in the South Atlantic on board a vessel for which a valid 
Federal commercial or charter vessel/headboat permit for Atlantic 
dolphin and wahoo has been issued, without regard to where such species 
were harvested, i.e., in state or Federal waters.
    (ii) In addition to the measures specified in paragraph (a)(1)(i) 
of this section, if the combined Atlantic dolphin commercial and 
recreational landings exceed the combined commercial and recreational 
ACLs specified in paragraphs (a)(1)(i) and (a)(2)(i) of this section, 
and Atlantic dolphin are overfished, based on the most recent Status of 
U.S. Fisheries Report to Congress, the AA will file a notification with 
the Office of the Federal Register, at or near the beginning of the 
following fishing year, to reduce the commercial ACL for that following 
year by the amount of the commercial overage in the prior fishing year.
    (2) Recreational sector. (i) If recreational landings for Atlantic 
dolphin, as estimated by the SRD, exceed the recreational ACL of 
14,187,845 lb (6,435,498 kg), round weight, then during the following 
fishing year, recreational landings will be monitored for a persistence 
in increased landings.
    (ii) If the combined Atlantic dolphin commercial and recreational 
landings exceed the combined commercial and recreational ACLs specified 
in paragraphs (a)(1)(i) and (a)(2)(i) of this section, and Atlantic 
dolphin are

[[Page 14470]]

overfished, based on the most recent Status of U.S. Fisheries Report to 
Congress, the AA will file a notification with the Office of the 
Federal Register, at or near the beginning of the following fishing 
year, to reduce the recreational ACL for that following year by the 
amount of the recreational overage in the prior fishing year, and 
reduce the recreational fishing season by the amount necessary to 
ensure recreational landings do not exceed the reduced ACL. However, 
the recreational ACL and the length of the recreational fishing season 
will not be reduced during the following fishing year if the RA 
determines, using the best scientific information available, that a 
reduced recreational ACL and a reduction in the length of the following 
fishing season is unnecessary.
    (b) Atlantic wahoo--(1) Commercial sector. (i) If commercial 
landings for Atlantic wahoo, as estimated by the SRD, reach or are 
projected to reach the commercial ACL of 70,542 lb (31,997 kg), round 
weight, the AA will file a notification with the Office of the Federal 
Register to close the commercial sector for the remainder of the 
fishing year. On and after the effective date of such a notification, 
all sale or purchase of Atlantic wahoo is prohibited and harvest or 
possession of this species in or from the South Atlantic EEZ is limited 
to the bag and possession limit. This bag and possession limit applies 
in the South Atlantic on board a vessel for which a valid Federal 
commercial or charter vessel/headboat permit for Atlantic dolphin and 
wahoo has been issued, without regard to where such species were 
harvested, i.e., in state or Federal waters.
    (ii) In addition to the measures specified in paragraph (b)(1)(i) 
of this section, if the combined Atlantic wahoo commercial and 
recreational landings exceed the combined commercial and recreational 
ACLs specified in paragraphs (b)(1)(i) and (b)(2)(i) of this section, 
and Atlantic wahoo are overfished, based on the most recent Status of 
U.S. Fisheries Report to Congress, the AA will file a notification with 
the Office of the Federal Register, at or near the beginning of the 
following fishing year, to reduce the commercial ACL for that following 
year by the amount of the commercial overage in the prior fishing year.
    (2) Recreational sector. (i) If recreational landings for Atlantic 
wahoo, as estimated by the SRD, exceed the recreational ACL of 
1,724,418 lb (782,183 kg), round weight, then during the following 
fishing year, recreational landings will be monitored for a persistence 
in increased landings.
    (ii) If the combined Atlantic wahoo commercial and recreational 
landings exceed the combined commercial and recreational ACLs specified 
in paragraphs (b)(1)(i) and (b)(2)(i) of this section, and Atlantic 
wahoo are overfished, based on the most recent Status of U.S. Fisheries 
Report to Congress, the AA will file a notification with the Office of 
the Federal Register, at or near the beginning of the following fishing 
year, to reduce the recreational ACL for that following year by the 
amount necessary to ensure recreational landings do not exceed the 
reduced ACL. However, the recreational ACL and the length of the 
recreational fishing season will not be reduced during the following 
year if the RA determines, using the best scientific information 
available, that a reduced recreational ACL and a reduction in the 
length of the following fishing season is unnecessary.
0
3. In Sec.  622.281, paragraph (a) is revised to read as follows:


Sec.  622.281  Adjustment of management measures.

* * * * *
    (a) Atlantic dolphin and wahoo. Biomass levels, age-structured 
analyses, MSY, OY, OFL, TAC, ABC, ABC Control Rule, ACLs, ACTs, AMs, 
trip limits, minimum sizes, gear regulations and restrictions, permit 
requirements, seasonal or area closures, sub-zones and their management 
measures, overfishing definitions and other status determination 
criteria, time frame for recovery of Atlantic dolphin or wahoo if 
overfished, fishing year (adjustment not to exceed 2 months), authority 
for the RA to close a fishery when a quota is reached or is projected 
to be reached or reopen a fishery when additional quota becomes 
available, definitions of essential fish habitat, and essential fish 
habitat HAPCs or Coral HAPCs.
* * * * *
[FR Doc. 2014-05581 Filed 3-13-14; 8:45 am]
BILLING CODE 3510-22-P