[Federal Register Volume 85, Number 97 (Tuesday, May 19, 2020)]
[Rules and Regulations]
[Pages 29870-29877]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10566]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 200512-0134]
RIN 0648-BI77
Fisheries of the Northeastern United States; Habitat Clam Dredge
Exemption Framework
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS approves and implements the New England Fishery
Management Council's Habitat Clam Dredge Exemption Framework Adjustment
to its Fishery Management Plans. This action establishes three areas
within the Great South Channel Habitat Management Area where vessels
may fish for Atlantic surfclams or blue mussels with dredge gear. This
action is intended to provide the fishing industry access to part of
the surfclam and blue mussel resource within the Habitat Management
Area while balancing the Council's habitat conservation objectives.
DATES: Effective June 18, 2020.
ADDRESSES: An environmental assessment (EA) has been prepared for this
action that provides an analysis of the impacts of the measures and
alternatives. Copies of the EA are available on request from Thomas
Nies, Executive Director, New England Fishery Management Council, 50
Water Street, Mill 2, Newburyport, MA 01950. This document are also
accessible via the internet at www.nefmc.org.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to the Greater Atlantic Regional Fisheries
Office (GARFO) and by email to [email protected], or fax to
(202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Policy Analyst,
978-281-9341.
SUPPLEMENTARY INFORMATION:
Background
The Great South Channel Habitat Management Area (GSC HMA) was
created by the final rule to implement the New England Fishery
Management Council's Omnibus Habitat Amendment 2 (OHA2) (83 FR 15240;
April 9, 2018). The use of all mobile bottom-tending fishing gear is
prohibited in the GSC HMA. The GSC HMA contains complex benthic habitat
that is important for juvenile cod and other fish species, and it is
susceptible to the adverse impacts of fishing gear. The OHA2 included a
1-year delay of the mobile gear closure that allowed the surfclam
fishery to continue fishing with hydraulic clam dredges in the area.
This delay was intended to give the Council time to determine if a
long-term exemption is warranted. The 1-year delay ended on April 9,
2019, and the GSC HMA is now closed to all mobile bottom-tending
fishing gear, including clam and mussel dredges.
The Council initiated the Habitat Clam Dredge Exemption Framework
Adjustment in 2015 as a trailing action to OHA2. Development of the
framework was guided by a problem statement approved by the Council in
October 2015:
The Council intends through this action to identify areas within
the Great South Channel and Georges Shoal Habitat Management Areas
that are currently fished or contain high energy sand and gravel
that could be suitable for a hydraulic clam dredging exemption that
balances achieving optimum yield for the surfclam/ocean quahog
fishery with the requirement to minimize adverse fishing effects on
habitat to the extent practicable and is consistent with the
underlying objectives of [OHA2].
In the final stages of OHA2 development, the Council was also
approached by parties interested in developing a blue mussel dredge
fishery in the GSC HMA. Currently, there is no Federal blue mussel
fishery management plan.
NMFS disapproved the Georges Shoal HMA that the Council recommended
in OHA2. The dredge exemption framework became solely focused on the
GSC HMA following implementation of OHA2. Development of the Habitat
Clam Dredge Exemption Framework occurred over several meetings of
Council's Habitat Plan Development Team, Committee, and the full
Council. The Council took final action at its December 2018 meeting
selecting preferred alternatives and approving the action for
submission to NMFS. The Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act) allows NMFS to approve, partially
approve, or disapprove measures proposed by the Council based on
whether the measures are consistent with the Fishery Management Plans
(FMPs), the Magnuson-Stevens Act and its National Standards, and other
applicable law. NMFS generally defers to the Council's policy choices
unless there is a clear inconsistency with the law or the FMP.
A proposed rule detailing implementing regulations for this
framework was published on September 17, 2019 (84 FR 48899), with a
comment period open through October 17, 2019. In response to a request
by the Council, the comment period was reopened November 4, 2019,
through November 18, 2019. In total, 68 comments were submitted on the
proposed measures and are discussed below in the Comments and Responses
section.
Final Measures
This action implements three dredge exemption areas (McBlair, Old
South, and Fishing Rip) within the GSC HMA where vessels can fish for
surfclams or blue mussels. Tables 1 through 3 contain the coordinates
for the new exemption areas. These areas are illustrated in Figure 1.
Each area is defined by the following points connected in the order
listed by straight lines.
Table 1--Coordinates for McBlair Dredge Exemption Area
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Point Longitude Latitude
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1............................. 69[deg]49.255' W 41[deg]25.878' N
2............................. 69[deg]46.951' W 41[deg]25.878' N
3............................. 69[deg]46.951' W 41[deg]19.34' N
4............................. 69[deg]49.187' W 41[deg]19.34' N
1............................. 69[deg]49.255' W 41[deg]25.878' N
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Table 2--Coordinates for Old South Dredge Exemption Area
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Point Longitude Latitude
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1............................. 69[deg]47' W 41[deg]15' N
2............................. 69[deg]44' W 41[deg]15' N
3............................. 69[deg]44.22' W 41[deg]10.432' N
4............................. 69[deg]45' W 41[deg]7' N
5............................. 69[deg]47' W 41[deg]7' N
6............................. 69[deg]47' W 41[deg]11' N
7............................. 69[deg]49.101' W 41[deg]11' N
8............................. 69[deg]49.116' W 41[deg]12.5' N
[[Page 29871]]
9............................. 69[deg]47' W 41[deg]12.5' N
1............................. 69[deg]47' W 41[deg]15' N
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Table 3--Coordinates for Fishing Rip Dredge Exemption Area
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Point Longitude Latitude
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1............................. 69[deg]28.829' W 41[deg]10.963' N
2............................. 69[deg]27.106' W 41[deg]10.485' N
3............................. 69[deg]29.311' W 41[deg]6.699' N
4............................. 69[deg]27.034' W 41[deg]6.609' N
5............................. 69[deg]27.376' W 41[deg]3.198' N
6............................. 69[deg]29.905' W 41[deg]1.297' N
7............................. 69[deg]32.579' W 41[deg]5.368' N
8............................. 69[deg]31.193' W 41[deg]7.356' N
1............................. 69[deg]28.829' W 41[deg]10.963' N
------------------------------------------------------------------------
These exemption areas were chosen to allow limited access to
historical surfclam fishing grounds that appear less vulnerable to
adverse habitat impacts from dredge gear while protecting the majority
of the HMA from the adverse habitat impacts caused by dredge gear. The
three exemption areas are 6.9 percent of the total area of the HMA and
do not include the areas most clearly identified as containing complex
and vulnerable habitats. Because of the small area of this exemption,
this action would not materially affect the overall conservation
benefit of the HMA. The McBlair and Fishing Rip Dredge Exemption Areas
will be open to fishing for surfclams or blue mussels year round. The
Old South Dredge Exemption Area will be open for surfclam or blue
mussel fishing from May 1 through October 31. Old South will be closed
to all mobile bottom-tending gear from November 1 through April 30 each
year to avoid disturbing spawning aggregations of cod that may occur in
the area.
[[Page 29872]]
[GRAPHIC] [TIFF OMITTED] TR19MY20.002
To enforce the boundaries of the small exemption areas,
participating vessels are required to obtain a letter of authorization
(LOA) from the NMFS Regional Administrator. Similar LOAs are used to
grant access to specific areas or programs in other fisheries and may
be applied for using a common form available from GARFO. If a vessel
violates any of the requirements of the exemption areas, the LOA may be
canceled, prohibiting future access to the GSC HMA.
To receive the LOA, a vessel must hold a Federal commercial
surfclam permit, which requires reporting each fishing trip consistent
with existing trip reporting requirements, using a vessel monitoring
system (VMS), and selling catch exclusively to a federally permitted
dealer. The LOA requires the vessel to have a NMFS-approved VMS unit
that is capable of transmitting the vessel's location every 5 minutes
while within the GSC HMA. At all other times, the VMS unit would
maintain the applicable reporting rate specified at 50 CFR 648.10(c). A
list of qualifying VMS units is available from the NOAA Office of Law
Enforcement, Greater Atlantic Region (https://www.fisheries.noaa.gov/national/enforcement/noaa-fisheries-type-approved-vms-units). This rate
of position transmission will provide finer scale resolution on the
location of the vessel and allow NMFS to better monitor compliance with
the small exemption areas. Vessels fishing in the GSC HMA will be
required to use new VMS trip declaration codes that allow law
enforcement to know they intend to fish in the GSC HMA for surfclams or
blue mussels.
Vessels fishing for surfclams within the GSC HMA are still subject
to the requirements of the individual transferable quota system and
other provisions of the surfclam regulations. This includes
restrictions on retention of other species of fish caught incidentally
while using hydraulic clam
[[Page 29873]]
dredge gear, which may depend on other Federal fishing permits the
vessel holds.
To fish for blue mussels in the GSC HMA, a vessel must hold a
surfclam vessel permit. This permit can be obtained from GARFO. By
holding a surfclam permit, mussel fishing vessels in the GSC HMA will
be subject to reporting and monitoring requirements that would not
normally apply to vessels fishing for blue mussels in Federal waters.
Mussel fishing vessels also need to obtain the new LOA and use the
appropriate VMS trip declaration code for any trip in the GSC HMA.
Mussel vessels are required to use a non-hydraulic mussel dredge (also
called a dry dredge), which cannot exceed 8 ft (2.4 m) in width.
Vessels cannot fish for, harvest, or land any species of fish other
than blue mussels on that trip.
Any violation of permit, reporting, monitoring, or LOA requirements
for fishing in the GSC HMA would result in NMFS revoking the vessel's
LOA, which prevents further fishing by that vessel in the HMA.
Comments and Reponses
We received 68 comments on the proposed rule. The majority of
comments (58) opposed allowing the use of hydraulic dredge gear in the
HMA. These comments were predominately from recreational fishing
groups, environmental groups, and residents from Nantucket and Cape
Cod. Ten representatives of the surfclam and blue mussel commercial
fishing interests supported the exemption areas, but would prefer
complete access to the full HMA. Specific topics raised by commenters
are discussed below. Comments that express the same position are
addressed as a group.
Comment: The majority of comments (58) opposed the proposed
measures and advocated a policy of managing natural resources for the
good of the general public, primarily through recreational fishing, and
not just for a few individuals in the commercial fishing industry.
Commenters suggest that no exemption should be allowed unless the gear
used is shown to have no adverse impacts to EFH. Many also expressed a
concern that allowing surfclam and mussel dredging in a portion of the
HMA would make it harder to disapprove future exemption requests from
other commercial fishery interests.
Response: The Magnuson-Stevens Act created the Regional Fishery
Management Councils and tasked each to develop fishery management plans
for each fishery that requires conservation and management within its
jurisdiction. The Council provides a public process to weigh competing
interests in a public resource and develop appropriate management
measures. This process allows the Council to consider commercial and
recreational fishing interests and conservation and management
requirements in the Magnuson-Stevens Act's National Standards when it
selects management measures to recommend to NMFS. The Council selected
exemption areas that appear less vulnerable to adverse habitat impacts
from dredge gear while protecting the majority of the HMA from the
adverse habitat impacts caused by dredge gear. Requirements of the
National Standards and the mandate to minimize adverse impacts of
fishing on EFH are discussed in more detail in other comments and
responses below. The Magnuson-Stevens Act permits NMFS to approve,
partially approve, or disapprove measures proposed by the Council based
only on whether the measures are consistent with the Magnuson-Stevens
Act and its National Standards, and other applicable law. Otherwise, we
must defer to the Council's policy choices. While some commenters may
not think the measures were optimal, the commenters did not cite any
legal deficiencies in the measures that would justify disapproving the
Council's action. Based on its own review, and explained in the EA and
proposed and final rules, NMFS determined the measures meet all legal
requirements. Adoption of these exemption areas alone does not increase
the likelihood of future exemptions from the requirements of this HMA.
Any future exemption request would need to consider available
information for evaluation and analysis of potential impacts, including
the cumulative impacts of other actions.
Comment: Some of representatives of the surfclam industry suggest
the exemption areas may be too limiting and will result in rapid
localized depletion of surfclams. These commenters advocate for
restored use of mobile bottom-tending hydraulic clam fishing throughout
the entire HMA.
Response: The use of dredge gear throughout the HMA would likely
result in impacts beyond what could be considered minor or temporary in
nature. Allowing hydraulic clam dredge gear to access the full HMA
would be counter to the Council's stated intent for this action because
it would result in more than minimal and temporary impacts on the
habitats in the HMA. These impacts could substantially reduce the
complexity of the benthic habitat and reduce the HMA's effectiveness in
promoting the growth of juvenile cod and other groundfish species.
While hydraulic dredge gear may primarily be used in sandy sediments
that can be highly dynamic, a tow that occurs on more complex habitat
can have negative impacts that could take years or even decades to
fully recover naturally. The relatively small footprint of the
exemption areas implemented by this action will allow industry some
access to the surfclam and blue mussel resource in potentially less
sensitive areas compared to the vast majority of the HMA the Council
designated for protection. These exemption areas balance providing
access, without undermining the conservation objectives.
Comment: One lawyer representing the clam industry asserts that the
proposed measures are not supported by the best available science. To
support this, he cites discussions at the May 2018 meeting of the
Council's Habitat Committee. He asserts the Committee concluded there
was no scientific evidence to support any restrictions on the surfclam
industry in the area and that it voted to allow fishing to continue in
the area for another 2.5 years while additional data were collected. He
makes several assertions about the validity of various data sources
that were available to the Council during the development of this
action.
Response: The commenter mischaracterizes the actions of the
Council's Habitat Committee. Contrary to the commenter's statement, the
May 2018 Habitat Committee discussion was not whether to place any
restrictions on the clam industry in the GSC HMA; rather, it was
discussing whether to grant any exemptions to surfclam vessels to fish
in the HMA. The difference is important, as the OHA2 final rule
specified that the HMA would close to hydraulic dredging in April 2019,
unless the Council and NMFS specifically took action to change it. If
there was insufficient scientific information for the Council to take
any action, the default measure would go into effect and the whole GSC
HMA would close and remain closed. The Council's Plan Development Team
had reviewed available information and concluded that it was unable to
identify areas within the HMA where complex habitat was absent and
fishing was occurring that clearly lent themselves to being defined as
exemption areas.
The motions approved by the Habitat Committee at the May 2018
meeting were for the Council to consider several new alternatives and
to direct the Plan Development Team to analyze them to determine if
they could meet the
[[Page 29874]]
purpose and need for this framework action. Contrary to the commenter's
claims, the Committee did not endorse any of these alternatives nor did
it vote to allow surfclam harvest to continue. The 2.5-year provision
approved by the Committee at that meeting was not for an extension of
then-current fishing levels, but rather a potential sunset provision on
any exemption areas. Ultimately, the Council did not support this
sunset provision, and it was not included in the final Framework
Adjustment.
The Magnuson-Stevens Act National Standard 2 states that
``(fishery) conservation and management measures shall be based upon
the best scientific information available.'' In 2013, NMFS published
amended guidance for National Standard 2 and what constitutes the best
scientific information available (78 FR 43066; July 19, 2013). We refer
the commenter to this document to clarify how NMFS designates best
scientific information available for management measures. Data from
clam vessel VMS units were used to identify areas where fishing
recently occurred, and were instrumental in setting the boundaries of
the exemption areas implemented by this action. However, evidence of
fishing activity is not necessarily evidence of exclusively soft, sandy
sediment as the commenter contends. The Plan Development Team was aware
that fishing captains actively monitor their acoustic displays and
avoid what they consider to be hard bottom. If large amounts of cobbles
or rocks are encountered, the captain will move to another nearby
location to avoid damaging their gear and having to deal with lots of
rocks on the deck. While these complex habitats are not preferred by
vessel operators, they are encountered while using this gear and
adverse impacts to these habitats can occur. Available habitat
information indicate that complex habitats can occur throughout the
HMA, but are patchy and mixed with areas of less complex sediment. As
discussed in the EA, there was more evidence for the presence of
complex habitat in other potential exemption areas that were considered
by the Council but ultimately not selected.
Comment: The Conservation Law Foundation (CLF) cited four different
factors why this action should be disapproved. CLF asserts: (1) That
the action is inconsistent with the purpose and need the Council
established for the Framework action; (2) that the Council and NMFS did
not conduct a sufficient practicability analysis; (3) that the
conducted analysis does not sufficiently describe the potential impact
on Council-managed species, including Atlantic cod; and (4) that
potential impacts to north Atlantic right whale critical habitat should
be analyzed in an Endangered Species Act Section 7 consultation.
Response: NMFS disagrees with CLF's assertions that the action is
legally deficient, and will address each point from the comment letter
separately. (1) As noted earlier in the preamble, the Council's
objectives in developing this Framework Adjustment were to allow for
some level of dredge fishing for surfclams within the HMA while still
minimizing the adverse effects of fishing to EFH, to the extent
practicable. The EA's analyses of potential impacts on EFH, as well as
an EFH consultation conducted for this action, both conclude that there
are probable adverse impacts on EFH, but those impacts are expected to
be minimal. Because this action allows for some continuation of the
surfclam fishery while having minimal impact on the overall habitat
protected by the HMA, this action fully meets the purpose and need
designated by the Council. NMFS acknowledges there is some concern
about the inclusion of an exemption for mussel dredging. However, the
expected scope of mussel fishing within the exemption areas is expected
to be small. Mussel beds are considered important habitat and the
development of the blue mussel fishery within the exemption areas and
its impacts on the HMA will be monitored moving forward.
(2) The Magnuson-Stevens Act requires that FMPs minimize adverse
effects on EFH caused by fishing to the extent practicable. This
practicability requirement does not remove or replace other Magnuson-
Stevens Act requirements, including the National Standard 8 requirement
to take into account the importance of fishery resources to fishing
communities and to minimize adverse economic impacts on fishing
communities to the extent practicable. NMFS guidance on Magnuson-
Stevens Act EFH requirements advises that Councils should consider the
nature and extent of the adverse effect on EFH and the long and short-
term costs and benefits of potential management measures to EFH,
associated fisheries, and the nation (67 FR 2343, January 17, 2002). A
practicability analysis may not necessarily be a strict calculation,
but rather a qualitative assessment of the tradeoffs between different
options. A recent Court opinion on a legal challenge to OHA2 supported
this approach (Conservation Law Foundation v. Ross). With the selection
of these exemption areas, the Council sought a balance between
different constituencies within all of the legal directives involved.
The likely impacts of this action and of other alternatives the Council
considered are fully discussed in Section 6 of the EA. That analysis
indicates the Council's preferred alternative was better for the
surfclam industry than taking no action, which would leave the entire
GSC HMA closed to all mobile bottom-tending gear, but would result in
less revenue for the industry than the other three action alternatives.
However, some of the lost revenue may be mitigated by shifting fishing
effort to other areas outside of the HMA. On the other hand, the
preferred alternative would result in more adverse impacts on EFH than
no action, but less than each of the other three action alternatives
considered. In making its final decision the Council did not select
other available alternatives that would have had more adverse impacts
on EFH as well as options that would have more adversely impacted the
surfclam industry.
(3) The potential impacts of this action on Atlantic cod and other
managed fish species is analyzed within the EA. Finfish, including cod,
are infrequently captured by clam dredges. Even with the low rates of
finfish bycatch in clam and mussels dredge gears, it is expected that
spawning activity could be disrupted by the noise and movement of the
gear in the water. For this reason, access was limited to avoid
interactions with cod. For example, access to the Old South Exemption
Area, the only exemption area that overlaps with identified historical
cod spawning areas, is limited seasonally to avoid access when spawning
aggregations may be present. In addition to direct effects on fish,
this action has potential indirect effects through the impact on
habitat. The consideration of the impacts of EFH protection on managed
fish species in this region is a significant focus of the EA for this
action as well as the environmental impact statement (EIS) for OHA2.
While this action is expected to have some adverse impact on EFH within
the GSC HMA, those impacts would be limited because the three exemption
areas are limited to 6.9 percent of the total area of the HMA and do
not include the areas most clearly identified as containing complex and
vulnerable habitats.
(4) The EA prepared for this action includes an analysis supporting
a determination of ``no effect'' from this action on large whales and
on North Atlantic right whale critical habitat. The GARFO Protected
Resources Division
[[Page 29875]]
conducted an informal Endangered Species Act (ESA) Section 7
consultation on both this action and the broader coastwide surfclam and
ocean quahog fishery (completed on January 2, 2020). This consultation
did not dispute the analysis and determination in the EA that there
have been no observed interactions between clam dredges and ESA-listed
large whales and that the action will not affect North Atlantic right
whale critical habitat. Therefore, the consultation focused on the
potential impacts on ESA-listed species of sea turtles and Atlantic
sturgeon as they are the species that are ``present in the action area
for this consultation and may be affected by the proposed actions.''
The consultation found that the risk of an interaction with those
species is extremely unlikely and therefore, discountable.
CLF's assertions of potential impact on right whale critical
habitat are not consistent with the analysis contained in the EA.
Approximately half (372 nm\2\) of the GSC HMA overlaps with Unit 1 of
North Atlantic right whale critical habitat (21,334 nm\2\). This is 1.7
percent of the total right whale critical habitat, and the exemption
areas being implemented overlap less than this 1.7 percent because they
are a small subset of the HMA. Right whale critical habitat overlaps
roughly half of the McBlair and Fishing Rip exemption areas and does
not intersect the Old South exemption area at all. To support its claim
of potential adverse impact on copepods that are an important forage
species for right whales, CLF cites studies that looked at the effects
of dredging to deepen shipping channels. ``Dredging'' as defined in
NMFS's critical habitat assessment (81 FR 4838, January 27, 2016)
should not be confused with use of commercial fishing dredges, such as
those used in the surfclam fishery. In the assessment, dredging is in
reference to the removal of material from the bottom of water bodies to
deepen, widen, or maintain navigation corridors, anchorages, or
berthing areas, as well as for sand mining. These dredges disturb the
sediment surface down to 12 inches (30.5 cm) or more, creating
turbidity plumes that last up to a few hours. In contrast, the surfclam
fishery uses hydraulic dredges to capture shellfish by injecting
pressurized water into the sediment to a depth of 8-10 inches (20.3-
25.4 cm), creating a trench up to 30 cm deep and as wide as the dredge.
Mussel dredges (approximately 1.8 m wide) create furrows approximately
2-5 cm deep. There is no evidence to suggest fishing dredging would
negatively impact copepod production or availability and, as a result,
limit the recovery of North Atlantic right whales or their critical
habitat. In terms of the surfclam fishery, the scale and scope of
hydraulic clam or mussel dredges is smaller than that associated with
navigational/sand mining dredges. Turbidity created from such fishing
dredges will be temporary in nature and will not impact the long-term
viability of copepod aggregations. Fishing dredges, such as hydraulic
clam or mussel dredges, may also temporarily disturb localized copepod
concentrations; however, these localized patches are continually
replaced and/or shifting due to the dynamic oceanographic features.
Comment: The Cape Cod Commercial Fishermen's Alliance opposed
allowing any mobile bottom-tending fishing gear in the HMA. However, if
exemptions were to be granted for surfclam fishing, the Alliance
requested that blue mussel fishing also be allowed in the same areas.
Response: This action will allow blue mussel dredging in the same
exemption areas and seasons as hydraulic dredging for surfclams.
Comment: Several members and representatives of the surfclam
industry suggested that NMFS should allow hydraulic clam dredging
throughout the GSC HMA instead of just the exemption areas proposed by
the Council.
Response: As mentioned in previous responses, the Council sought to
achieve a balance between habitat protection and fishing access for the
surfclam industry. Based upon the analysis contained in the EA for this
framework and in the EIS for OHA2, allowing hydraulic clam dredging
throughout the GSC HMA could have substantial adverse impact on EFH.
This impact could hinder the Council's efforts to rebuild certain
depleted fish stocks. Based on our current understanding of the
distribution of habitat types in the HMA and the potential effects of
hydraulic clam dredge gear, NMFS does not consider allowing fishing
with hydraulic clam dredges throughout the HMA without some mitigating
measures to be consistent with the Magnuson-Stevens Act requirement to
minimize adverse impacts of fishing on EFH to the extent practicable.
The Council has expressed its desire for future research to improve our
understanding of habitat distribution within the HMA and the
operational limits of this gear to better understand the habitat
complexity and potential impacts. Such research could modify our
understanding of the interactions of fishing gear with habitat and help
inform future considerations by the Council of additional exemptions in
the HMA.
Changes From the Propose Rule
There are no changes to the proposed measures.
Regulatory Clarification
This action also implements a minor modification to the regulations
under authority granted the Secretary under section 305(d) of the
Magnuson-Stevens Act to ensure that FMPs are implemented as intended
and consistent with the requirements of the Magnuson-Stevens Act. This
action defines a ``straight line'' with regard to regulated areas, as a
rhumb line, unless explicitly stated otherwise. When fishery managers
develop regulated areas (e.g., scallop access areas or Northeast
multispecies closed areas), the areas are defined by a series of points
of latitude and longitude connected by straight lines when drawn on a
standard nautical chart. Nautical charts use a Mercator projection so
straight lines drawn on a chart are lines of constant compass bearing,
also known as rhumb lines. This change helps make the regulations as
unambiguous as possible.
Classification
The Administrator, Greater Atlantic Region, NMFS, determined that
this FMP Framework Adjustment is necessary for the conservation and
management of the fisheries under the jurisdiction of the New England
Council and that it is consistent with the Magnuson-Stevens Act and
other applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
This final rule is considered an Executive Order 13771 deregulatory
action.
A final regulatory flexibility analysis (FRFA) was prepared. The
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a
summary of the significant issues raised by the public comments in
response to the IRFA, and NMFS responses to those comments, and a
summary of the analyses completed to support the action.
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
No comments were received in response to the IRFA. NMFS response to
other comments are discussed above.
[[Page 29876]]
Description and Estimate of Number of Small Entities to Which the Rule
Would Apply
This rule affects small entities engaged in surfclam/ocean quahog
or blue mussel commercial fishing operations in the Federal waters off
Southern New England, Georges Bank, and the Gulf of Maine. In 2017,
eight large commercial fishing businesses and 377 small commercial
fishing businesses held either a surfclam or ocean quahog Federal
permit. The number of fishermen actively engaged in the surfclam and
ocean quahog fishery is much smaller than the number of individuals
permitted for those two fisheries. This is because there is an
individual transferrable quota associated with both species, meaning
only individuals holding or leasing quota can land surfclam and ocean
quahog. Over the last 3 years, the number of businesses that have been
active in the areas proposed for exemption areas has been between 10 (8
small and 2 large) and 12 (10 small and 2 large).
Between 10 (2015) and 11 (2016, 2017) vessels were permitted and
active in the Massachusetts blue mussel fishery in the most recent 3-
year period, although only one or two are expected to fish in the HMA.
The current status of the blue mussel fishery in the Great South
Channel is exploratory, and ownership data is not available from which
to assess business size for state-permitted vessels. This situation
precludes a more thorough investigation into the number and size of
blue mussel businesses regulated under this action.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
Reporting, Recordkeeping, and other compliance requirements are
discussed above and summarized here. To fish for surfclams or blue
mussels in the GSC HMA exemption areas, a vessel must be issued a
Federal Atlantic surfclam permit, which mandates an active VMS and
submission of fishing vessel trip reports. Vessels will also have to be
issued an LOA for the HMA exemption areas and be subject to increased
reporting rates from the VMS while inside to the HMA.
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
This action proposes management measures to allow fishing with
dredge gear for Atlantic surfclams or blue mussels in three exemption
areas within the Great South Channel HMA. The measures seek to minimize
to the extent practicable the adverse effects on complex habitat within
the HMA by fishing for surfclams and blue mussels in the area. Small
businesses have historically generated a higher percentage of their
revenue within the Great South Channel HMA and are expected to benefit
more from any exemption than large businesses, relatively speaking.
The Council considered three other options for allowing dredge
fishing in the HMA. The Council also evaluated taking no action,
thereby keeping the entire GSC HMA closed to dredge fishing for
surfclams and blue mussels. All of the action alternatives would have
resulted in some level of increased revenue for vessels fishing in the
exemption areas. While this action does not affect the overall quota
for surfclams, the catch rate in the exemption areas is potentially
higher than in other open areas. Therefore, the opening of these areas
may not affect the total harvest of surfclams, but may improve the
efficiency with which part of the quota is harvested. Moreover, within
the affected entities, some may have had a disproportionate historic
harvest from the area now closed to hydraulic dredges in the GSC HMA.
In choosing a preferred alternative, the Council considered the
tradeoffs between short-term economic benefit to the surfclam and blue
mussel industries and potential long-term benefit to other fisheries
through the protection of essential fish habitat from the adverse
impacts of fishing gear.
This final rule contains a collection-of-information requirement
subject to the Paperwork Reduction Act (PRA) and which has been
approved by OMB under control number 0648-0202. Public reporting burden
for obtaining a letter of authorization to fish within the GSC HMA is
estimated to average 5 minutes per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. The public reporting burden for increasing
the VMS location data from once per hour to once every 5 minutes is
estimated to cost participating fishermen $0.84 per hour while a vessel
is within 3 nm (5.6 km) of the HMA and subject to the higher position
polling rate. Based on historical fishing effort, this would translate
to an average annual cost of $8,639 spread across all vessels active in
the HMA. Send comments regarding these burden estimates or any other
aspect of this data collection, including suggestions for reducing the
burden, to NMFS (see ADDRESSES) and by email to
[email protected], or fax to 202-395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: May 12, 2020.
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. 648.2, add in alphabetical order, a definition for
``Straight line.''
Sec. 648.2 Definitions.
* * * * *
Straight line, with regard to regulated areas, means a rhumb line,
unless explicitly stated otherwise.
* * * * *
0
3. In 648.370, revise paragraph (h)(2) to read as follows:
Sec. 648.370 Habitat Management Areas.
* * * * *
(h) * * *
(2) Atlantic Surfclam and Mussel Dredge Exemption Areas. (i) Dredge
Exemption Area Requirements. A vessel may fish in one or more of the
Dredge Exemption Areas below, provided the area is open and the vessel
meets the following requirements:
(A) Holds a federal Atlantic surfclam vessel permit.
(B) Has been issued a Letter of Authorization to fish in the Great
South Channel HMA from the Regional Administrator.
(C) Has a NMFS-approved VMS unit capable of automatically
transmitting a signal indicating the vessel's accurate position at
least once every 5 minutes while in or near the Great South Channel
HMA.
[[Page 29877]]
(D) Declares each trip into the HMA through the VMS and fishes
exclusively inside HMA dredge exemption areas on such trips.
(E) When fishing for surfclams in an HMA exemption area, uses only
hydraulic clam dredge gear.
(F) When fishing for blue mussels in an HMA exemption area, any
dredge on board the vessel does not exceed 8 ft (2.4 m), measured at
the widest point in the bail of the dredge, and the vessel does not
possess, or land any species of fish other than blue mussels.
(ii) McBlair Dredge Exemption Area. (A) The McBlair Dredge
Exemption Area is defined by the following points connected in the
order listed by straight lines:
McBlair Dredge Exemption Area
------------------------------------------------------------------------
Point Longitude Latitude
------------------------------------------------------------------------
1............................. 69[deg]49.255' W 41[deg]25.878' N
2............................. 69[deg]46.951' W 41[deg]25.878' N
3............................. 69[deg]46.951' W 41[deg]19.34' N
4............................. 69[deg]49.187' W 41[deg]19.34' N
1............................. 69[deg]49.255' W 41[deg]25.878' N
------------------------------------------------------------------------
(B) The McBlair Dredge Exemption Area is open year-round.
(iii) Old South Dredge Exemption Area. (A) The Old South Dredge
Exemption Area is defined by the following points connected in the
order listed by straight lines:
Old South Dredge Exemption Area
------------------------------------------------------------------------
Point Longitude Latitude
------------------------------------------------------------------------
1............................. 69[deg]47' W 41[deg]15' N
2............................. 69[deg]44' W 41[deg]15' N
3............................. 69[deg]44.22' W 41[deg]10.432' N
4............................. 69[deg]45' W 41[deg]7' N
5............................. 69[deg]47' W 41[deg]7' N
6............................. 69[deg]47' W 41[deg]11' N
7............................. 69[deg]49.101' W 41[deg]11' N
8............................. 69[deg]49.116' W 41[deg]12.5' N
9............................. 69[deg]47' W 41[deg]12.5' N
1............................. 69[deg]47' W 41[deg]15' N
------------------------------------------------------------------------
(B) The Old South Dredge Exemption Area is open from May 1-October
31, and closed to all mobile bottom-tending gear November 1-April 30.
(iv) Fishing Rip Dredge Exemption Area. (A) The Fishing Rip Dredge
Exemption Area is defined by the following points connected in the
order listed by straight lines:
Fishing Rip Dredge Exemption Area
------------------------------------------------------------------------
Point Longitude Latitude
------------------------------------------------------------------------
1............................. 69[deg]28.829' W 41[deg]10.963' N
2............................. 69[deg]27.106' W 41[deg]10.485' N
3............................. 69[deg]29.311' W 41[deg]6.699' N
4............................. 69[deg]27.034' W 41[deg]6.609' N
5............................. 69[deg]27.376' W 41[deg]3.198' N
6............................. 69[deg]29.905' W 41[deg]1.297' N
7............................. 69[deg]32.579' W 41[deg]5.368' N
8............................. 69[deg]31.193' W 41[deg]7.356' N
1............................. 69[deg]28.829' W 41[deg]10.963' N
------------------------------------------------------------------------
(B) The Fishing Rip Dredge Exemption Area is open year-round.
* * * * *
[FR Doc. 2020-10566 Filed 5-18-20; 8:45 am]
BILLING CODE 3510-22-P