[Federal Register Volume 81, Number 251 (Friday, December 30, 2016)]
[Rules and Regulations]
[Pages 96388-96390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31463]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 160302174-6999-02]
RIN 0648-BF81


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Dolphin and Wahoo Fishery Off the Atlantic States; Regulatory Amendment 
1

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

ACTION: Final rule.

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SUMMARY: NMFS issues regulations to implement Regulatory Amendment 1 
for the 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). This final rule 
establishes a commercial trip limit for Atlantic dolphin for vessels 
with a Federal commercial permit for Atlantic dolphin and wahoo. The 
purpose of this final rule is to reduce the chance of an in-season 
closure of the dolphin commercial sector as a result of the annual 
catch limit (ACL) being reached during the fishing year, and to reduce 
the severity of economic or social impacts caused by these closures.

DATES: This rule is effective January 30, 2017.

ADDRESSES: Electronic copies of Regulatory Amendment 1, which includes 
an environmental assessment, an assessment under the Regulatory 
Flexibility Act (RFA), a regulatory impact review, and fishery impact 
statement, may be obtained from www.regulations.gov or the Southeast 
Regional Office Web site at http://sero.nmfs.noaa.gov/sustainable_fisheries/s_atl/dw/2016/reg_am1/documents/pdfs/dw_reg_am1.pdf.

FOR FURTHER INFORMATION CONTACT: Karla Gore, NMFS SERO, telephone: 727-
551-5753, or email: [email protected].

SUPPLEMENTARY INFORMATION: The dolphin and wahoo fishery of the 
Atlantic is managed under the FMP. The FMP was prepared by the Council 
and implemented through regulations at 50 CFR part 622 under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Steven Act).
    On June 30, 2016, NMFS published a proposed rule for Regulatory 
Amendment 1 and requested public comment (81 FR 42625). The proposed 
rule and Regulatory Amendment 1 outline the rationale for the action 
contained in this final rule. A summary of the action implemented by 
Regulatory Amendment 1 and this final rule is provided below.

Management Measure Contained in This Final Rule

    This final rule establishes a commercial trip limit for dolphin for 
vessels that have a Federal commercial permit for Atlantic dolphin and 
wahoo.

Dolphin Commercial Trip Limit

    Currently, no commercial trip limit exists for vessels that possess 
a Federal commercial permit for Atlantic dolphin and wahoo. However, 
there is a

[[Page 96389]]

commercial trip limit of 200 lb (91 kg) of dolphin and wahoo, combined, 
for vessels that do not have a Federal commercial permit for Atlantic 
dolphin and wahoo but do have a Federal commercial permit in any other 
fishery, provided that all fishing and landings from that trip occur 
north of 39[deg] N. lat. (50 CFR 622.278(a)(2)). This final rule 
establishes a commercial trip limit of 4,000 lb (1,814 kg), round 
weight, for the dolphin commercial sector in the Atlantic, once 75 
percent of the commercial ACL is reached. This trip limit remains in 
effect until the end of the fishing year or until the commercial ACL is 
met, whichever comes first. This trip limit applies to vessels that 
have a Federal commercial permit for Atlantic dolphin and wahoo, 
provided that the vessel is not operating as a charter vessel or 
headboat. There will be no applicable trip limit for the dolphin 
commercial sector in the Atlantic prior to 75 percent of the commercial 
ACL being reached. The Council determined that establishing this 
commercial trip limit would reduce the chance of early closures during 
the fishing year as a result of the accountability measures being 
triggered, and thereby reduce the severity of any economic or social 
impacts as a result of a commercial sector closure.

Comments and Responses

    NMFS received four comments on the proposed rule and Regulatory 
Amendment 1. One comment was outside the scope of the amendment and two 
were in support of the amendment as proposed. Those comments are not 
addressed below. The remaining single commenter opposed the management 
actions in the proposed rule and Regulatory Amendment 1; summaries of 
and responses to the comments in opposition to the proposed rule and 
Regulatory Amendment 1 are below.
    Comment 1: The commercial trip limit selected in Regulatory 
Amendment 1 is not supported by the best available science, as mandated 
by the Magnuson-Stevens Act. No peer-reviewed stock assessment has ever 
been conducted for dolphin. Dolphin is the highest priority in the 
Council's list of species in need of a peer-reviewed stock assessment 
yet no Southeast Data, Assessment, and Review (SEDAR) assessment has 
been scheduled or requested. NMFS should conduct a stock assessment of 
dolphin in the Atlantic before implementing Regulatory Amendment 1.
    Response: NMFS disagrees that dolphin needs to be assessed before 
implementing this amendment and has certified that Regulatory Amendment 
1 is based on the best scientific information available. Although 
dolphin is not currently scheduled for a stock assessment, it is a 
short-lived, highly productive species that is not considered to be 
vulnerable to overfishing. The decision to manage the fishery 
represented a precautionary and risk-averse approach to management. The 
Report to Congress on the Status of U.S. Fisheries indicates that 
dolphin is not overfished and is not undergoing overfishing. The 
Southeast Fisheries Science Center listed dolphin as a stock assessment 
priority; however, the Council did not include dolphin in its list of 
long-term priorities due to the need to revise assessments that had 
already been completed with updated data from the Marine Recreational 
Information Program. Thus, dolphin is not the highest priority of 
species in need of a peer-reviewed stock assessment and the Council and 
NMFS need not await a stock assessment to proceed with the Regulatory 
Amendment 1.
    Comment 2: The dolphin fishery is in need of management measures 
that will, when implemented, eliminate the need for commercial trip 
limits. NMFS should only implement Regulatory Amendment 1 as a 
temporary measure to give the Council and NMFS time to develop new 
management measures based on a new stock assessment. Therefore, a 
sunset date to the trip limit action should be included in Regulatory 
Amendment 1, to allow the commercial trip limits for the longline 
component of the commercial sector to be valid for a set number of 
years.
    Response: Regulatory Amendment 1 establishes a dolphin commercial 
trip limit of 4,000 lb (1,814 kg), round weight, once 75 percent of the 
commercial ACL is reached. The Council did not consider a sunset date 
for the action in this amendment. In the future, if deemed necessary, 
the Council could modify or remove the trip limit.
    Comment 3: The dolphin commercial trip limit will negatively impact 
commercial fishermen in the North Atlantic more significantly than 
fishermen in the Mid-Atlantic or South Atlantic as a result of 
dolphin's migratory patterns, in violation of National Standard 4. The 
fishing year should be changed from beginning on January 1 to begin on 
June 1 to allow the fishermen in the North Atlantic better access to 
the resource.
    Response: NMFS disagrees. The amendment does not violate National 
Standard 4 because it is intended to lengthen the fishing year for all 
commercial fishermen fishing in the Atlantic. The Council did not 
consider revising the fishing year in Regulatory Amendment 1. In the 
future, if deemed necessary, the Council could revise the fishing year.
    Comment 4: This amendment violates National Standard 9 and ``no 
less than 4 U.N. resolutions and the UN FAO Code of Conduct for 
Responsible Fisheries'' because the implementation of commercial trip 
limits will cause an increase in regulatory discards.
    Response: NMFS disagrees. Marine fisheries in the United States are 
scientifically monitored and regionally managed under a number of 
requirements, including the ten national standards in the Magnuson-
Stevens Act. The National Standards are requirements that must be 
followed in any FMP to ensure sustainable and responsible fishery 
management. When reviewing FMPs, FMP amendments, and regulations, the 
Secretary of Commerce must ensure that they are consistent with the 
National Standards. National Standard 9 states: Conservation and 
management measures shall, to the extent practicable, (a) minimize 
bycatch and (b) to the extent bycatch cannot be avoided, minimize the 
mortality of such bycatch. The dolphin and wahoo fishery is managed 
under the FMP which is consistent with the National Standards. As 
discussed in the bycatch practicability assessment included in the 
Regulatory Amendment, the magnitude of discards in the dolphin and 
wahoo fishery is small, and bycatch is believed to be minimal in both 
the commercial and recreational sectors. Action was taken in the 
original FMP to reduce bycatch by prohibiting the use of surface and 
pelagic longline gear for dolphin and wahoo within any ``time or area 
closure'' closed to the use of pelagic gear for highly migratory 
pelagic species in the Council's area of jurisdiction. Although this 
action may increase the regulatory discards when the commercial trip 
limit is triggered, any increase is likely to be minimal.
    The commenter did not provide any information on, or citation to, 
the United Nations resolutions that it believes the rule violates, and 
thus NMFS cannot evaluate the comment that the rule is inconsistent 
with those resolutions. However, to the extent that those resolutions 
seek to minimize bycatch, this final rule is consistent with them. As 
explained above, although the final rule may increase regulatory 
discards when the rule is implemented, NMFS does not believe those 
increases in regulatory discards violate National Standard 9 or other 
efforts to minimize bycatch.
    In addition, with respect to the comment that the rule violates the 
United Nation's 1995 Code of Conduct

[[Page 96390]]

for Responsible Fisheries (CCRF), NMFS disagrees. Similar to National 
Standard 9, the CCRF seeks to minimize bycatch. As explained above, the 
final rule is consistent with National Standard 9 and thus is 
consistent with other initiatives to minimize bycatch, including the 
CCRF.
    Comment 5: If trip limits are implemented, all forms of mortality, 
including regulatory discards, must be accounted for accurately in 
order to determine the effect of overall mortality on stock status. It 
is essential that NMFS collect data on discards of dolphin with the 
implementation of a commercial trip limit.
    Response: As described in the response to comment 4, the bycatch in 
the dolphin fishery is minimal. Information on dolphin landings and 
discards are collected through a variety of ways in the Atlantic. 
Commercial dolphin fishermen who are selected by the NMFS Science and 
Research Director are required to maintain and submit fishing records. 
Commercial dolphin fishermen are also required to submit logbooks with 
trip and effort information. Currently, discard data are collected 
using a supplemental form that is sent to a stratified random sample of 
20 percent of the active Federal dolphin and wahoo commercial permit 
holders in the dolphin and wahoo fishery. For the recreational sector, 
estimates of the number of recreational discards are available from the 
Marine Recreational Information Program and the NMFS Southeast Headboat 
Survey.
    Additionally, the Council is currently developing the Bycatch 
Reporting Amendment to improve bycatch reporting in all of their 
managed fisheries. This amendment is intended to improve data 
collection on discards, including regulatory discards.

Classification

    The Regional Administrator, Southeast Region, NMFS has determined 
that this final rule is necessary for the conservation and management 
of Atlantic dolphin and is consistent with Regulatory Amendment 1, the 
FMP, the Magnuson-Stevens Act, and other applicable law.
    This final 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. 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 final rule.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) during the proposed rule stage that this rule 
would not have a significant economic impact on a substantial number of 
small entities. The factual basis for this determination was published 
in the proposed rule and is not repeated here. NMFS did not receive any 
comments from SBA's Office of Advocacy or the public on the 
certification in the proposed rule.
    On December 29, 2015, NMFS issued a final rule establishing a small 
business size standard of $11 million in annual gross receipts for all 
businesses primarily engaged in the commercial fishing industry (NAICS 
11411) for RFA compliance purposes only (80 FR 81194, December 29, 
2015). The $11 million standard became effective on July 1, 2016, and 
is to be used in place of the SBA's current standards of $20.5 million, 
$5.5 million, and $7.5 million for the finfish (NAICS 114111), 
shellfish (NAICS 114112), and other marine fishing (NAICS 114119) 
sectors of the U.S. commercial fishing industry in all NMFS rules 
subject to the RFA that are published after July 1, 2016. Id. at 81194.
    Pursuant to the RFA, and prior to July 1, 2016, a certification was 
developed for this regulatory action using SBA's size standards. NMFS 
has reviewed the analyses prepared for this regulatory action in light 
of the new size standard. All of the entities directly regulated by 
this regulatory action are finfish commercial fishing businesses and 
were considered small under the previously applicable SBA size 
standards. These commercial fishing businesses will not exceed the new 
threshold standard for small businesses, and thus they all will 
continue to be considered small under the new standard. Thus, NMFS has 
determined that the new size standard does not affect analyses prepared 
for this regulatory action.
    The Chief Counsel for Regulation of the Department of Commerce 
hereby reaffirms that the rule will not have a significant economic 
impact on a substantial number of small entities. Because this final 
rule, if implemented, will not have a significant economic impact on a 
substantial number of small entities, a final regulatory flexibility 
analysis is not required and none has been prepared.

List of Subjects in 50 CFR Part 622

    Commercial, Dolphin, Fisheries, Fishing, Trip limits.

    Dated: December 22, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons stated in the preamble, NMFS amends 50 CFR part 622 
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.  622.278, revise paragraph (a) to read as follows:


Sec.  622.278   Commercial trip limits.

* * * * *
    (a) Trip-limited permits--(1) Atlantic wahoo. (i) The trip limit 
for wahoo in or from the Atlantic EEZ is 500 lb (227 kg). This trip 
limit applies to a vessel that has a Federal commercial permit for 
Atlantic dolphin and wahoo, provided that the vessel is not operating 
as a charter vessel or headboat.
    (ii) See Sec.  622.280(b)(1) for the limitations regarding wahoo 
after the ACL is reached.
    (2) The trip limit for a vessel that does not have a Federal 
commercial vessel permit for Atlantic dolphin and wahoo but has a 
Federal commercial vessel permit in any other fishery is 200 lb (91 kg) 
of dolphin and wahoo, combined, provided that all fishing on and 
landings from that trip are north of 39[deg] N. lat. (A charter vessel/
headboat permit is not a commercial vessel permit.)
    (3) Atlantic dolphin. (i) Once 75 percent of the ACL specified in 
Sec.  622.280(a)(1)(i) is reached, the trip limit is 4,000 lb (1,814 
kg), round weight. When the conditions in this paragraph (a)(3)(i) have 
been met, the Assistant Administrator will implement this trip limit by 
filing a notification with the Office of the Federal Register. This 
trip limit applies to a vessel that has a Federal commercial permit for 
Atlantic dolphin and wahoo, provided that the vessel is not operating 
as a charter vessel or headboat.
    (ii) See Sec.  622.280(a)(1) for the limitations regarding dolphin 
after the ACL is reached.
* * * * *
[FR Doc. 2016-31463 Filed 12-29-16; 8:45 am]
 BILLING CODE 3510-22-P