[Federal Register Volume 80, Number 110 (Tuesday, June 9, 2015)]
[Rules and Regulations]
[Pages 32480-32487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14021]



[[Page 32480]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 130702585-5454-02]
RIN 0648-BD42


Fisheries of the Northeastern United States; Special Management 
Zones for Delaware Artificial Reefs

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

ACTION: Final rule.

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SUMMARY: NMFS issues final regulations to implement Special Management 
Zones for four Delaware artificial reefs under the black sea bass 
provisions of the Summer Flounder, Scup, and Black Sea Bass Fishery 
Management Plan. These measures are necessary to promote orderly use of 
fisheries resources on artificial reefs by reducing user group 
conflicts, and are intended to maintain the intended socioeconomic 
benefits of the artificial reefs to the maximum extent practicable.

DATES: Effective July 9, 2015.

ADDRESSES: Copies of the Environmental Assessment and Initial 
Regulatory Flexibility Analysis (EA/IRFA) and other supporting 
documents for the Special Management Zones measures are available from 
Paul Perra, NOAA/NMFS, Sustainable Fisheries Division, 55 Great 
Republic Drive, Gloucester, MA 01930. The EA for the Special Management 
Zone measures is also accessible via the Internet at: http://www.nero.noaa.gov. The Final Regulatory Flexibility Analysis (FRFA) 
consists of the IRFA, public comments and responses contained in this 
final rule, and the summary of impacts and alternatives contained in 
this final rule. Copies of the small entity compliance guide are 
available from John K. Bullard, Regional Administrator, Greater 
Atlantic Region, National Marine Fisheries Service, 55 Great Republic 
Drive, Gloucester, MA 01930-2298.

FOR FURTHER INFORMATION CONTACT: Paul Perra, Fishery Policy Analyst, 
(978) 281-9153.

SUPPLEMENTARY INFORMATION: The Mid-Atlantic Fishery Management Council 
prepared the Summer Flounder, Scup, Black Sea Bass Fishery Management 
Plan (FMP) under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 
et seq. Regulations implementing the FMP appear at 50 CFR part 648, 
subparts A (general provisions), G (summer flounder), H (scup), and I 
(black sea bass). General regulations governing fisheries of the 
Northeastern U.S. also appear at 50 CFR part 648. Amendment 9 to the 
FMP which established conservation and management measures for the 
black sea bass fishery, also established a process by which the Council 
could recommend that Special Management Zones (SMZs) be established.

Special Management Zone Measures Background

    In 2011, the Delaware Fish and Wildlife Department (DFW) requested 
and the Council recommended that five Delaware artificial reef sites be 
designated as SMZs according to the provisions of the FMP.
    These artificial reefs are currently permitted by the U.S. Army 
Corps of Engineers (COE) in the Exclusive Economic Zone (EEZ). The FMP 
provides authority to implement SMZs around artificial reefs. SMZ-
designated areas are used to provide for specialized fishery management 
regulations around artificial reefs to reduce user conflicts, protect 
reef habitat, and control fishing off the artificial reefs.
    The SMZ request noted that the DFW received complaints from hook-
and-line anglers about fouling of their fishing gear in commercial pots 
and lines on ocean reef sites for more than 10 years. The request also 
noted that the U.S. Fish and Wildlife Service (FWS) Sportfish 
Restoration Program (SRP) had notified DFW that these gear conflicts 
are not consistent with the objectives of the SRP program, which 
provides funding for the building and maintenance of the artificial 
reefs. The FWS requires that state artificial reef programs be able to 
limit gear conflicts by state regulations in state waters or by SMZs 
for sites in the EEZ. The Council reviewed DFW's request through its 
specific process for recommending SMZ measures to NMFS for rule making. 
All meetings are open to the public and meeting related materials are 
publicly available. Extensive background on the SMZ management measures 
recommendation process is not repeated here but can be found in Sec.  
648.18 and in the proposed rule for these measures (79 FR 35141). After 
completing its initial review, the Council recommended to NMFS that all 
five Delaware artificial reefs be established as SMZs. The Council also 
recommended that the SMZ areas be enlarged beyond their original COE 
permit areas by 500 yards (0.46 km) to enhance enforcement. 
Additionally, the Council recommended that in the established areas of 
the SMZs, all vessels would only be allowed to conduct fishing with 
hook and line and spear (including the taking of fish by hand). NMFS 
subsequently reviewed the Council's recommendations through the 
development of an EA and published a proposed rule on June 19, 2014 (79 
FR 35141) that had an initial 45-day comment period. The comment period 
on the proposed rule was later extended (79 FR 41530) for an additional 
15 days. See Comments and Responses section of this preamble for 
additional details.
    NMFS proposed the Council's measures, applicable in the Federal 
waters of the EEZ and to all vessels as follows:
    1. All five Delaware artificial reefs be established as SMZs;
    2. The SMZ areas be enlarged beyond their original COE permit areas 
by 500 yards (0.46 km) for enforcement purposes; and
    3. Within the established areas of the SMZs, all vessels would only 
be allowed to conduct fishing with hook and line and spear (including 
taking of fish by hand).
    The New England Fishery Management Council and commercial fishermen 
commented on the proposed rule that implementing an SMZ at the most 
offshore artificial reef site (site 14) could have serious negative 
effects on the scallop fishery in that it would restrict scallop 
dredging in a highly productive scallop fishing area. Also, the DFW 
requested that the 0.46-km area enlargement for enforcement not be 
implemented because doing so would enlarge (approximately double) the 
size of the SMZs to cover other structures not intended to be part of 
the artificial reefs. DFW also stated that SMZ area enlargements for 
enforcement would negatively impact more commercial fishing activities 
and were not necessary to enforce the SMZs. In response to concerns 
from the scallop fleet, and because no artificial reef materials have 
yet been placed at site 14, DFW withdrew its request for an SMZ at that 
site. Also, at its August meeting (during the comment period for the 
proposed rule) the Mid-Atlantic Council reconsidered its 
recommendations for the SMZs and withdrew its requests for an SMZ at 
site 14 and for each SMZ to be enlarged 0.46 km for enforcement 
purposes. The Atlantic States Marine Fisheries Commission also 
supported the Mid-Atlantic Council and DFW's requested changes to the 
proposed rule.

[[Page 32481]]

Changes From the Proposed Rule

    NMFS has made two changes from the proposed rule: (1) SMZ site 14 
is not being implemented and (2) the proposed 0.46-km enlargement to 
enhance enforcement on the four remaining SMZs is not being implemented 
as had been proposed. These changes are being made as a result of the 
comments received on the June 19, 2014, proposed rule (79 FR 35141). 
The final boundaries for the SMZs are in Federal waters and shown in 
Figure 1.
[GRAPHIC] [TIFF OMITTED] TR09JN15.001

    The SMZ sites are bounded by the following coordinates specified as 
follows:

                               Reef Site 9
------------------------------------------------------------------------
           Corner                  N. Latitude          W. Longitude
------------------------------------------------------------------------
9SE.........................  38[deg]39.972'        74[deg]59.298'
9SW.........................  38[deg]40.05'         75[deg]0.702'
9NW.........................  38[deg]40.848'        75[deg]0.402'
9NE.........................  38[deg]40.8'          74[deg]58.902'
9SE.........................  38[deg]39.972'        74[deg]59.298'
------------------------------------------------------------------------


                              Reef Site 10
------------------------------------------------------------------------
           Corner                  N. Latitude          W. Longitude
------------------------------------------------------------------------
10SE........................  38[deg]36.198'        74[deg]55.674'
10SW........................  38[deg]36.294'        74[deg]57.15'
10NW........................  38[deg]37.098'        74[deg]56.802'
10NE........................  38[deg]37.002'        74[deg]55.374'
10SE........................  38[deg]36.198'        74[deg]55.674'
------------------------------------------------------------------------


                              Reef Site 11
------------------------------------------------------------------------
           Corner                  N. Latitude          W. Longitude
------------------------------------------------------------------------
11SE........................  38[deg]39.882'        74[deg]43.05'
11SW........................  38[deg]40.002'        74[deg]44.802'
11NW........................  38[deg]40.848'        74[deg]44.502'
11NE........................  38[deg]40.752'        74[deg]42.75'
11SE........................  38[deg]39.882'        74[deg]43.05'
------------------------------------------------------------------------


                              Reef Site 13
------------------------------------------------------------------------
           Corner                  N. Latitude          W. Longitude
------------------------------------------------------------------------
13SE........................  38[deg]30.138'        74[deg]30.582'
13SW........................  38[deg]30.222'        74[deg]31.5'
13NW........................  38[deg]31.614'        74[deg]30.864'
13NE........................  38[deg]31.734'        74[deg]30.018'
13SE........................  38[deg]30.138'        74[deg]30.582'
------------------------------------------------------------------------

Comments and Responses

    On June 19, 2014 (79 FR 35141), NMFS published proposed SMZ 
measures for a 45-day public notice and comment, and then extended the 
public comment period for 15 additional days on July 16, 2014 (79 FR 
41530). NMFS received 16 categories of comments from 12 individuals 
and/or associations during the comment period on the proposed rule. The 
comments were from: Four individuals; two industry groups (the 
Recreational Fisheries Alliance and the Fisheries Survival Found); the 
Mid-Atlantic Council; the New England Council; the Commission, the 
State of Delaware Coastal Programs and Department of Natural Resources; 
and the New Jersey Department of Fish and Wildlife. Two commenters 
supported implementing measures as proposed and two commenters objected 
to any implementation of the proposed measures. The majority of 
comments including the State of Delaware and the Mid-Atlantic Council 
(the initial requesters of the SMZs) supported the measures being 
implemented in this final rule.
    Comment 1: The Mid-Atlantic Council, the Commission, the State of 
Delaware Department of Natural Resources, the New England Council, and 
the Fisheries Survival Fund, requested that NMFS not implement an SMZ 
at artificial reef site 14. The site does not currently have any 
artificial reef structure on the bottom. Commenters stated that 
restricting fishing gear there may have negative impacts on fisheries 
that use mobile gear, especially the scallop fishery.
    Response: NMFS agrees and is not implementing an SMZ at reef site 
14 at this time. Because there is currently no artificial reef 
structure at site 14, and because multiple groups have requested site 
14 be withdrawn from the SMZ final measures, NMFS sees no need for 
designating an SMZ at site 14.
    Comment 2: The Mid-Atlantic Council, the Commission, the State of 
Delaware Department of Natural Resources, Delaware Coastal Programs, 
and a member of the public requested that NMFS not implement the 0.46-
km buffer (enforcement area) around the artificial reefs permit 
boundaries. Commenters stated this would approximately double the size 
of the

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SMZs to cover other structures not intended to be part of the 
artificial reefs and negatively impact more commercial fishing 
activities.
    Response: NMFS agrees, and is not implementing the 0.46-km enlarged 
enforcement area in this final rule. If enforcement issues arise over 
the ability to determine if vessels are fishing in or outside the SMZs, 
NMFS may need to revisit implementing a larger SMZ area around the 
artificial reefs.
    Comment 3: The New Jersey Department of Fish and Wildlife commented 
it was not in favor of the 0.46-km enlarged enforcement area around the 
artificial reefs COE permit boundaries, stating it was too excessive. 
Their comment suggested that a 250-yard (0.23-km) enlarged enforcement 
area be used instead.
    Response: As noted in response to comment 2, NMFS has determined 
that the enlarged enforcement area is not necessary and therefore the 
final rule implements no enforcement buffer around the SMZs.
    Comment 4: Five commenters (including the Recreational Fisheries 
Alliance) supported implementation of the SMZs to eliminate gear 
conflicts and provide recreational fisheries access to the artificial 
reefs. Two commenters were in support of implementing SMZs at all five 
artificial reef sites and three commenters supported implementing SMZs 
at all sites except for artificial reef site 14.
    Response: NMFS agrees. The SMZs are intended to reduce the 
commercial/recreational gear conflicts on the artificial reefs, and 
help ensure unimpeded access to the artificial reefs for recreational 
and commercial hook and line fishing. However, for reasons stated 
above, NMFS is implementing SMZs at all proposed artificial reef sites 
except site 14.
    Comment 5: One commenter contended that the proposed action was not 
consistent with Sec.  648.148, stating that the Code of Federal 
Regulations (CFR) says the SMZ would prohibit or restrain specific 
types of gear types, without identification of the specific gear types 
noted in the proposed rule.
    Response: NMFS disagrees; Sec.  648.148 states that the recipient 
of a COE permit for an artificial reef, fish attraction device, or 
other modification of habitat for purposes of fishing may request that 
an area surrounding and including the site be designated by the Council 
as an SMZ. The SMZ will prohibit or restrain the use of specific types 
of fishing gear that are not compatible with the intent of the 
permitted area. This action would restrict use of all commercial gears 
other than hook and line (or taking of fish by hand), which is 
allowable under Sec.  648.148. This is compatible with the intent of 
the Delaware artificial reefs which were built with Sportfish 
Restoration Program (SRP) Funds.
    Comment 6: One commenter stated the proposed rule did not make 
clear the intent of the Delaware artificial reef program and what 
fishing gears should be incompatible with that program. The commenter 
contended that the intent of the reefs is listed under 33 U.S.C. 
2101(a)(5). They further stated that prohibiting gear types on the reef 
is a major change of the original intent the reefs were permitted 
under, and the public should be granted another comment period.
    Response: NMFS disagrees. The reefs were built with SRP funding to 
enhance recreational fishing. COE regulations at 33 U.S.C. 2101(a)(5) 
are designed to permit artificial reefs for the benefit of commercial 
and recreational fishing. All reefs need not be built to simultaneously 
benefit commercial and recreational fishing. However, in this case, the 
SMZs would benefit recreational fishing, and hook and line commercial 
fishing. NMFS provided ample opportunity for public comment, extending 
the comment period from 45 to 60 days. In addition, the SMZs were 
discussed at multiple Council and Commission meetings. An additional 
comment period on the intent of the reef program or the SMZ measures is 
not needed. However, when the Delaware artificial reef program COE 
permit for the artificial reefs is renewed or if there are further 
regulatory actions for the SMZs, the public will have further 
opportunity to comment on the SMZs, reefs and their intent, or both.
    Comment 7: One commenter stated that the Council's monitoring 
committee failed to consider all applicable law as required by Sec.  
648.146(a)(4) and did not mention the National Fisheries Enhancement 
Act of 1984 (NFEA).
    Response: The monitoring committee was aware of the NFEA, but saw 
no issues to report on or mention in its report. NMFS considered the 
NFEA in the development of the EA and the proposed rule for the SMZs, 
and concluded that implementing the SMZ's did not conflict with the 
NFEA.
    Comment 8: One Commenter stated that the SMZs will be in violation 
of the NFEA under 33 U.S.C. 2101(a)(5) because it will not increase 
fishing opportunities for commercial fishermen, will not allow 
increased production of fisheries products (conchs, lobsters), and will 
not increase fuel efficiency of commercial fishermen.
    Response: NMFS disagrees. All reefs need not be built to 
simultaneously benefit commercial and recreational fishing. Under the 
NFEA, it states that properly designed, constructed, and located 
artificial reefs can enhance the habitat and diversity of fishery 
resources; enhance United States recreational and commercial fishing 
opportunities; increase the production of fishery products in the 
United States; increase the energy efficiency of recreational and 
commercial fisheries; and contribute to the United States and coastal 
economies. Implementing SMZs for the Delaware artificial reefs will 
increase recreational and commercial hook and line fisheries 
opportunities, and likely increase energy efficiency of the 
recreational fleet (by reducing their search time for high quality 
fishing areas) and contribute to the United States and coastal 
economies. The Delaware reefs were built with SRP funds to specifically 
enhance recreational fisheries.
    Comment 9: One commenter stated that the SMZ will be in violation 
of the NFEA because it says artificial reefs shall be managed in a 
manner which will facilitate access and utilization by commercial 
fishermen. The stated SMZ measures inhibit rather than facilitate 
commercial fishing.
    Response: NMFS disagrees. The SMZ measures are not in violation of 
the NFEA which provides guidance that permit artificial reefs to be 
built for the benefit of commercial and recreational fishing. Under the 
NFEA, all reefs need not be built to simultaneously benefit commercial 
and recreational fishing. However, the SMZs implemented under this rule 
will enhance commercial hook and line fishing on the artificial reefs.
    Comment 10: One commenter stated that the catch record for 
Delaware's 27 licensed commercial hook and line fishermen shows they do 
not utilize these artificial reefs. Therefore, to allow hook and line 
only is not viable and a violation of 33 U.S.C. 2102(2).
    Response: NMFS disagrees. The NFEA set standards for artificial 
reefs that they be based on the best scientific information available, 
be sited and constructed, and subsequently monitored and managed in a 
manner which will:
    (1) Enhance fishery resources to the maximum extent practicable;
    (2) Facilitate access and utilization by United States recreational 
and commercial fishermen;
    (3) Minimize conflicts among competing uses of waters covered under 
this chapter and the resources in such waters;
    (4) Minimize environmental risks and risks to personal health and 
property; and

[[Page 32483]]

    (5) Be consistent with generally accepted principles of 
international law and shall not create any unreasonable obstruction to 
navigation.
    Under the NFEA, all artificial reefs need not be built to 
simultaneously benefit commercial and recreational fishing. In the case 
of the Delaware artificial reefs, there is a need to minimize 
recreational and commercial fishing conflicts and ensure the 
recreational fleet access to the reefs that were built with SRP 
funding. Some of the commercial gears deployed on the artificial reefs 
(fish pots and buoys) may currently be physically inhibiting the use of 
commercial hook and line fishing on the reefs. Delaware's hook and line 
commercial fishermen may not currently be fishing the artificial reefs, 
but they will have the option to fish the reefs without conflict with 
stationary commercial gears once the SMZs are implemented.
    Comment 11: One commenter stated that the word ``among'' is used in 
the NFEA when saying artificial reefs shall be utilized in a manner 
which will minimize conflicts among competing users, 33 U.S.C. 2101(3). 
The commenter contended that the SMZ measures limits use to two groups 
(hook and line and spear) and therefore violates the NFEA.
    Response: NMFS disagrees; the SMZ's will allow continued use among 
all to fish the artificial reefs. They will just be limited in the type 
of gear they can use. Anyone with proper commercial fishing permits may 
continue to fish on the artificial reefs using hook and line or taking 
by hand, and private, charter, and party recreational vessels may 
continue to fish the artificial reefs with hook and line gear.
    Comment 12: One commenter stated that the SMZs would violate the 
NFEA, which states that reefs shall be managed in a manner which will 
minimize conflicts among competing users. The commenter contended that 
by eliminating the use of commercial gear types (pots) and allowing 
only angling and spear, there are no competing uses of the reefs.
    Response: NMFS disagrees. Under the NFEA, all artificial reefs need 
not be built to simultaneously benefit commercial and recreational 
fishing. In the case of the Delaware artificial reefs, there is a need 
to minimize recreational and commercial fishing conflicts, and ensure 
the recreational fleet access to the reefs that have been built with 
SRP funding. Also, under the SMZ measures commercial hook and line 
fishermen may choose to compete for use of the artificial reefs.
    Comment 13: One commenter stated that FWS threating to withdraw 
funding unless reef access/usage rules are put in place is akin to 
bribery. The commenter suggested that the Federal prosecutor should be 
called to investigate. The commenter also stated the New Jersey 
Department of Environmental Protection (NJDEP) was put in a similar 
situation by FWS where SRP funds could be withdrawn, and in that case 
New Jersey elected not to enact SMZs.
    Response: The FWS does provide SRP funding to DFW to support its 
artificial reef program. The SRP is supported by the Dingell-Johnson 
Sport Fish Restoration Act, which uses funds provided by excise taxes 
on sport fishing equipment and motorboat fuels. NMFS understands from 
the FWS that only projects that benefit recreationally important 
finfish species are eligible for SRP funding. The development and 
maintenance of artificial reefs in marine waters is just one type of 
project supported by SRP. These funds are also used for research and 
survey work, boat ramp construction, aquatic resources education 
programs, fish hatcheries, aquatic habitat improvement, land 
acquisition for recreational fishing access, and many other types of 
projects. The role of the FWS is to distribute these funds and make 
sure they are spent according to the law and regulations under (50 CFR 
part 80). While NMFS understands the NJDEP can no longer use SRP 
funding for its artificial reef program, it still receives its full SRP 
allocation for other appropriate SRP eligible projects.
    SRP funds are apportioned to states based on their relative number 
of licensed anglers and land and water area. Delaware and New Jersey 
are both minimum apportionment states, so they each receive one percent 
of funds available each year. This was $3.2 million in fiscal year 
2014. Like all other states, Delaware and New Jersey decide how to 
spend their SRP funds. Delaware requested and received $595,500 of 
Federal funds for artificial reef work for 2014. If SMZs are not 
designated on artificial reefs off Delaware, then the FWS may withhold 
future SRP funds from the DFW artificial reef program. Thus, SRP funds 
would not be allowed to be used on the reefs due to the continuing 
conflicts with commercial fishermen. This is in accordance with SRP 
regulations (50 CFR part 80). If that were to happen, then Delaware 
will likely be reminded by FWS to spend its SRP funds on other eligible 
projects.
    Comment 14: One commenter was against building artificial reefs. 
The commenter stated artificial reefs are created for use as cheap 
dumping grounds and are making our oceans garbage dumps. The commenter 
also stated artificial reefs are a deterrent to a healthy ocean.
    Response: NMFS considers that the Delaware Artificial Reef Program 
is being conducted responsibly and successfully with extensive 
regulatory oversight. State artificial reef programs and their 
permitting, such as the Delaware Artificial Reef Program, are among the 
most heavily regulated activities conducted in our bays and coastal 
oceans. NMFS took the lead in 1984, by writing the National Artificial 
Reef Plan (subsequently updated by the joint Commission/Gulf States 
Marine Fisheries Commission artificial reef committees in 2007). This 
framework described the characteristics of acceptable reef material. 
Materials of opportunity must be durable, stable, and non-toxic. These 
guidelines have led to the banning of some materials used in the 1970's 
such as unballasted tires, and wooden or fiberglass vessels, resulting 
in ecologically sound artificial reefs since the mid-1980s. All 
Atlantic coast states with artificial reef programs have written state 
artificial reef plans, modeled after the National Artificial Reef Plan. 
State reef coordinators are members of the Commission's Artificial Reef 
Committee and meet periodically to learn from one another's experience 
resulting in less trial and error in selecting materials and building 
reefs. All state reef programs are permitted through state agencies 
dealing with sub-aqueous lands, historical and cultural affairs or 
coastal management and through the COE on the Federal level. Materials 
are approved or banned by the COE during the permitting process. NMFS, 
FWS, and the Environmental Protection Agency (EPA) have input through 
the COE into this process. When a new, unanticipated material becomes 
available for reefing, input is sought from EPA and other agencies and 
the material may then be listed as acceptable for reef building in the 
COE permit. In Delaware, the following agencies have had input on the 
Delaware Reef Program state and Federal permits and have been satisfied 
with the activities and materials used: Delaware Division of Historical 
and Cultural Affairs; Delaware Division of Water Resources Wetlands 
Section; Delaware Coastal Management Program; COE; FWS; NMFS; and EPA.
    Regarding vessels that are used in artificial reef building, 
Delaware has worked closely with EPA to eliminate toxins. Delaware 
routinely exceeds the best management practices for reefing of vessels, 
developed by the Commission's

[[Page 32484]]

Artificial Reef Committee. Delaware artificial reefs comply with the 
provisions of the Toxic Substances Control Act.
    NMFS assures artificial reefs are not ``a deterrent to a healthy 
ocean.'' Artificial reefs provide a unique community which is 
especially rare in the Mid-Atlantic region. Monitoring has shown an 
increase in available food for fish per square foot on the Delaware 
artificial reefs. The artificial reefs can increase fishing 
opportunities and provide economic benefits to coastal communities.
    Comment 15: One commenter requested that NMFS exempt mobile bottom-
tending gears from any restriction in the site 14 SMZ. The commenter 
correctly stated there is currently no artificial reef in Area 14. The 
commenter further stated that implementing an SMZ at this time that 
would restrict mobile gear would create adverse impacts on the scallop 
fishery with no associated benefits.
    Response: NMFS agrees. The final rule does not implement an SMZ at 
Site 14 (see response to comment 1). Both Delaware and the Mid-Atlantic 
Council have withdrawn their requests for SMZ status for site 14.
    Comment 16: One commenter stated that NMFS is trying to hide the 
publication of the SMZ proposed rule from the public, by not putting a 
notice of its publication on its Web site.
    Response: NMFS gave appropriate time and notice for the public to 
comment. NMFS published the SMZ proposed rule in the Federal Register 
(79 FR 35141) on June 19, 2014, with a comment period to August 4, 
2014; posted a story about the proposed rule on its Greater Atlantic 
Region (GARFO) Web page on June 24, 2014; and on July 16, 2014, 
extended the comment period an additional 15 days to August 19, 2014 
(79 FR 41530). The rule was available on the Federal government's e-
rulemakeing portal, regulations.gov. Links to the rule and associated 
EA were on the GARFO Web site, http://www.greateratlantic.fisheries.noaa.gov/.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
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 rule has been determined to be not significant for purposes of 
Executive Order 12866.

Final Regulatory Flexibility Analysis

Introduction

    The Regulatory Flexibility Act (RFA) requires that Federal agencies 
analyze the expected impacts of a rule on small business entities, 
including consideration of disproportionate and/or significant adverse 
economic impacts on small entities that are directly regulated by the 
action. As part of the analysis, Federal agencies must also consider 
alternatives that minimize impacts on small entities while still 
accomplishing the objectives of the rule. The required analysis is used 
to inform the agency, as well as the public, of the expected impacts of 
the various alternatives included in the rule, and to ensure the agency 
considers other alternatives that minimize the expected impacts while 
still meeting the goals and objectives of the action, and that are 
still consistent with applicable law. Section 604 of the RFA, 5 U.S.C. 
604, requires Federal agencies to prepare a Final Regulatory 
Flexibility Analysis (FRFA) for each final rule.

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

    Major issues on the proposed action were raised in five ways:
    1. The New England Council and the commercial industry was 
concerned that implementing an SMZ at the most offshore artificial reef 
site would have serious negative effects on the scallop fishery.
    2. The DFW requested that the 500-yard (0.46 km) buffer areas area 
(enlargements for enforcement) not be implemented because they would 
approximately double the size of the SMZs to cover other structures not 
intended to be part of the artificial reefs;
    3. The DFW also stated that the SMZ 0.46-km area enlargements would 
negatively impact more commercial fishing activities and were not 
necessary to enforce the SMZs.
    4. In response to concerns from the scallop fleet, and because no 
artificial reef materials have yet been place at site 14, DFW withdrew 
its request for an SMZ at that site.
    5. At its 2014 August meeting, which was during the comment period 
for the proposed rule, the Mid-Atlantic Council reconsidered its 
recommendations for the SMZs and withdrew its requests for an SMZ at 
site 14 and for each SMZ to be enlarged by 0.46 km for enforcement 
purposes.
    Based on the comments received on the proposed rule and the Mid-
Atlantic Council's revised recommendations, site 14 has been dropped 
from SMZ implementation, and each of the remaining four artificial reef 
SMZ are not extended by 0.46 km (see comment 2 in COMMENTS AND 
RESPONSES for this rule for more information). The SMZs are implemented 
to have the same size and retain the same boundaries as prescribed on 
their respective artificial reef site COE permit.
    These changes from the proposed rule to the final rule will reduce 
impacts on the scallop fishery because site 14 is dropped providing 
them access to that area and removing the extended 0.46- km enforcement 
area from the remaining four artificial reefs SMZs will provide more 
ability to all commercial vessels to fish nearer the artificial reefs 
than was proposed.

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

    The Small Business Administration (SBA) updated its standards 
(effective July 14, 2014 (79 FR 33647; June 12, 2014)) to increase what 
defines a small fishing business, based on gross revenues as: A finfish 
business of up to $20.5 million, a commercial shellfishing business of 
up to $5.5 million, and a for-hire recreational fishing businesses of 
up to $7.5 million. Pursuant to the RFA, and prior to SBA's June 12 
interim final rule, an initial regulatory flexibility analysis was 
developed for this action using SBA's former size standards. NMFS has 
reviewed the analyses prepared for this action in light of the new size 
standards. Under either the former, lower size standards, or newer 
higher standards, all entities considered as possibly subject to this 
action are considered small entities (excepting one large entity that 
operated at site 14, but site 14 has been dropped from this action). 
Thus all entities affected by the final rule are considered small under 
the new standards. NMFS has determined that the new size standards do 
not affect analyses prepared for this action. All affected entities 
would still be considered small under the new or old standard. In 
January 2015, because of the changes from the proposed rule to the 
final rule regarding site 14, the size of the SMZs, and the new SBA 
standards, NMFS updated its original IRFA analysis. The January 2015 
IRFA conforms to the updated standards, does not include site 14, and 
applies to the smaller size SMZs created under this final rule.
    This rule applies to all Federal permit holders except recreational 
for-hire

[[Page 32485]]

permit holders. Thus, the affected business entities of concern are 
businesses that hold commercial Federal fishing permits with the 
exception of those that fish with hook and line. While all business 
entities that hold commercial Federal fishing permits could be directly 
affected by these regulations, not all business entities that hold 
Federal fishing permits fish in the areas identified as potential SMZs. 
Those who actively participate, i.e., land fish, in the areas 
identified as potential SMZs would be the group of business entities 
that are directly impacted by the regulations.
    The number of possible affected entities (those with a fishing 
history in the SMZs) are described in Table 1, through an enumeration 
of the number of commercial fishing vessels with recent activity within 
the four reef sites (sites 9, 10, 11, and 13), by gear type.

 Table 1--Number of Unique Vessels With Landings Within the Coordinates of the Four Reef Sites (sites 9, 10, 11, and 13) by Gear Type, and Their Percent
                                               of Total Annual Ex-Vessel Revenue Landed at the Reef Sites
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Gear type                          Percent of total annual revenue
                                                              ------------------------------------------------------------------------------------------
                                                                 Pot/trap      Dredge       Trawl         <5%          5-9%        10-19%       20-29%
--------------------------------------------------------------------------------------------------------------------------------------------------------
2008.........................................................            1            0            0            1            0            0            0
2009.........................................................            2            0            0            1            1            0            0
2010.........................................................            0            0            1            1            0            0            0
--------------------------------------------------------------------------------------------------------------------------------------------------------

    During 2008, 2009, and 2010, four vessels reported landings from 
within the artificial reef sites (Table 1). Because of the uncertainty 
of reporting vessel areas fished with VTRs, impacts for vessels fishing 
within the artificial reef areas and beyond to 0.46 km were also 
considered. Only two commercial vessels reported landings within 0.46 
km of the reef sites in each of these years, one vessel reported 
landings in two of the three years, and 12 vessels reported landings in 
only one of the three years. This implies a total of eight unique 
vessels, excluding site 14, which is not included, reported landings 
within the artificial reef sites during the full 3-year period.
    Total revenue earned by these business was derived from both 
shellfishing and finfishing, but the highest percentage of average 
annual revenue for the majority of the businesses was from 
shellfishing. Of the 14 unique fishing business entities potentially 
estimated to be affected because of reporting VTRs within 0.46 km of 
the artificial reefs around the 4 reef sites, 8 entities earned the 
majority of their total revenues (i.e., from all species and areas 
fished) from landings of shellfish, and 6 entities earned the majority 
of the their total revenues from landings of finfish. Thus, eight of 
the potentially affected businesses are classified as shellfishing 
business entities and six as finfishing business entities.
    Average annual gross revenue estimates calculated from the most 
recent 3 years of available Northeast region dealer data (2010-2012) 
indicate that under the preferred alternative, 14 of the 14 potentially 
affected business entities are considered small (8 shellfish and 6 
finfish).
    Under the preferred alternative, only three vessels show VTR 
operations within the artificial reef areas with no vessels obtaining 
more than 9 percent of its revenue from fishing within the artificial 
reef boundaries (Table 1).

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action does not introduce any new reporting, recordkeeping, or 
other compliance requirements.

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

    Site 14 has been dropped from SMZ implementation, and each of the 
remaining four artificial reefs SMZ are implemented without the 
additional enforcement buffer. The SMZs are implemented to have the 
same size and retain the same boundaries as prescribed on their 
respective artificial reef site COE permit. These changes from the 
proposed rule minimizes impacts on the commercial vessels (small 
entities) that fish near the artificial reefs by allowing them to 
retain as much of their traditional fishing grounds as possible.

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, we will send a small entity compliance guide 
to all Federal permit holders affected by this action. In addition, 
copies of this final rule and guide (i.e., information bulletin) are 
available from NMFS online at http://www.greateratlantic.fisheries.noaa.gov/.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: June 1, 2015.
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 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.

0
2. In Sec.  648.14, paragraph (p)(1)(vi) is added to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (p) * * *
    (1) * * *
    (vi) Special management zone. Fail to comply with any of the 
restrictions for special management zones specified in Sec.  
648.148(b).
* * * * *
0
3. Revise Sec.  648.148 to read as follows:


Sec.  648.148  Special management zones.

    (a) General. The recipient of a U.S. Army Corps of Engineers permit 
for an artificial reef, fish attraction device, or

[[Page 32486]]

other modification of habitat for purposes of fishing may request that 
an area surrounding and including the site be designated by the MAFMC 
as a special management zone (SMZ). The MAFMC may prohibit or restrain 
the use of specific types of fishing gear that are not compatible with 
the intent of the artificial reef or fish attraction device or other 
habitat modification within the SMZ. The establishment of an SMZ will 
be effected by a regulatory amendment, pursuant to the following 
procedure: An SMZ monitoring team comprised of members of staff from 
the MAFMC, NMFS Greater Atlantic Regional Fisheries Office, and NMFS 
Northeast Fisheries Science Center will evaluate the request in the 
form of a written report.
    (1) Evaluation criteria. In establishing an SMZ, the SMZ monitoring 
team will consider the following criteria:
    (i) Fairness and equity;
    (ii) Promotion of conservation;
    (iii) Avoidance of excessive shares;
    (iv) Consistency with the objectives of Amendment 9 to the Summer 
Flounder, Scup, and Black Sea Bass Fishery Management Plan, the 
Magnuson-Stevens Act, and other applicable law;
    (v) The natural bottom in and surrounding potential SMZs; and
    (vi) Impacts on historical uses.
    (2) The MAFMC Chairman may schedule meetings of MAFMC's industry 
advisors and/or the SSC to review the report and associated documents 
and to advise the MAFMC. The MAFMC Chairman may also schedule public 
hearings.
    (3) The MAFMC, following review of the SMZ monitoring team's 
report, supporting data, public comments, and other relevant 
information, may recommend to the Regional Administrator that an SMZ be 
approved. Such a recommendation will be accompanied by all relevant 
background information.
    (4) The Regional Administrator will review the MAFMC's 
recommendation. If the Regional Administrator concurs in the 
recommendation, he or she will publish a proposed rule in the Federal 
Register in accordance with the recommendations. If the Regional 
Administrator rejects the MAFMC's recommendation, he or she shall 
advise the MAFMC in writing of the basis for the rejection.
    (5) The proposed rule to establish an SMZ shall afford a reasonable 
period for public comment. Following a review of public comments and 
any information or data not previously available, the Regional 
Administrator will publish a final rule if he or she determines that 
the establishment of the SMZ is supported by the substantial weight of 
evidence in the record and consistent with the Magnuson-Stevens Act and 
other applicable law.
    (b) Approved/Established SMZs--Delaware Special Management Zone 
Areas. Special management zones are established for Delaware artificial 
reef permit areas #9, 10, 11, and 13, in the area of the U.S. Exclusive 
Economic Zone. From January 1 through December 31 of each year, no 
fishing vessel or person on a fishing vessel may fish in the Delaware 
Special Management Zones with any gear except hook and line and spear 
fishing (including the taking of fish by hand). The Delaware Special 
Management Zones are defined by straight lines connecting the following 
point's N. latitude and W. longitude in the order stated:
    (1) Delaware artificial reef #9.

----------------------------------------------------------------------------------------------------------------
              Point                          Corner                  N. latitude              W. longitude
----------------------------------------------------------------------------------------------------------------
1................................  9SE                        38[deg]39.972'            74[deg]59.298'
2................................  9SW                        38[deg]40.05'             75[deg]0.702'
3................................  9NW                        38[deg]40.848'            75[deg]0.402'
4................................  9NE                        38[deg]40.8'              74[deg]58.902'
5................................  9SE                        38[deg]39.972'            74[deg]59.298'
----------------------------------------------------------------------------------------------------------------

    (2) Delaware artificial reef #10.

----------------------------------------------------------------------------------------------------------------
              Point                          Corner                  N. latitude              W. longitude
----------------------------------------------------------------------------------------------------------------
1................................  10SE                       38[deg]36.198'            74[deg]55.674'
2................................  10SW                       38[deg]36.294'            74[deg]57.15'
3................................  10NW                       38[deg]37.098'            74[deg]56.802'
4................................  10NE                       38[deg]37.002'            74[deg]55.374'
5................................  10SE                       38[deg]36.198'            74[deg]55.674'
----------------------------------------------------------------------------------------------------------------

    (3) Delaware artificial reef #11.

----------------------------------------------------------------------------------------------------------------
              Point                          Corner                  N. latitude              W. longitude
----------------------------------------------------------------------------------------------------------------
1................................  11SE                       38[deg]39.882'            74[deg]43.05'
2................................  11SW                       38[deg]40.002'            74[deg]44.802'
3................................  11NW                       38[deg]40.848'            74[deg]44.502'
4................................  11NE                       38[deg]40.752'            74[deg]42.75'
5................................  11SE                       38[deg]39.882'            74[deg]43.05'
----------------------------------------------------------------------------------------------------------------

    (4) Delaware artificial reef #13.

----------------------------------------------------------------------------------------------------------------
              Point                          Corner                  N. latitude              W. longitude
----------------------------------------------------------------------------------------------------------------
1................................  13SE                       38[deg]30.138'            74[deg]30.582'
2................................  13SW                       38[deg]30.222'            74[deg]31.5'
3................................  13NW                       38[deg]31.614'            74[deg]30.864'
4................................  13NE                       38[deg]31.734'            74[deg]30.018'

[[Page 32487]]

 
5................................  13SE                       38[deg]30.138'            74[deg]30.582'
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2015-14021 Filed 6-8-15; 8:45 am]
BILLING CODE 3510-22-P