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Rule

Fisheries of the Northeastern United States; Omnibus Deep-Sea Coral Amendment

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Start Preamble

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS implements the measures of the New England Fishery Management Council's Omnibus Deep-Sea Coral Amendment. This action protects deep-sea corals from the impacts of commercial fishing gear on Georges Bank and in the Gulf of Maine. These management measures are intended to reduce, to the extent practicable, impacts of fishing gear on deep-sea corals in New England while balancing the continued operations of commercial fisheries.

DATES:

Effective July 26, 2021.

ADDRESSES:

The New England Fishery Management Council developed an Environmental Assessment (EA) for this action that describes the measures in the Omnibus Deep-Sea Coral Amendment and other considered alternatives and analyzes the impacts of the measures and alternatives. Copies of supporting documents used by the New England Fishery Management Council, including the EA and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are available from: Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950 and accessible via the internet in documents available at: https://www.nefmc.org/​library/​omnibus-deep-sea-coral-amendment.

Copies of the Final Regulatory Flexibility Analysis (FRFA) and the small entity compliance guide are available from Michael Pentony, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930-2298, or available on the internet at: http://www.greateratlantic.fisheries.noaa.gov.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Travis Ford, Fishery Policy Analyst, (978) 281-9233.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Background

On November 20, 2019, pursuant to section 304(a)(3) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), NMFS approved the Omnibus Deep-Sea Coral Amendment in its entirety as recommended by the New England Fishery Management Council. The Council developed this action, and the measures described in this rule, under the discretionary provisions for deep-sea coral protection in section 303(b) of the Magnuson-Stevens Act. This provision gives the Regional Fishery Management Councils the authority to:

(A) Designate zones where, and periods when, fishing shall be limited, or shall not be permitted, or shall be permitted only by specified types of fishing vessels or with specified types and quantities of fishing gear; and

(B) Designate such zones in areas where deep-sea corals are identified under section 408 (this section describes the deep-sea coral research and technology program), to protect deep-sea corals from physical damage from fishing gear or to prevent loss or damage to such fishing gear from interactions with deep-sea corals, after considering long-term sustainable uses of fishery resources in such areas.

This final rule implements the Amendment, which prohibits the use of all bottom-tending gear (with an exception for red crab pots) along the outer continental shelf in waters no shallower than 600 m to the Exclusive Economic Zone (EEZ) and prohibits the use of bottom-tending mobile gear in two areas in the Gulf of Maine (Mount Desert Rock and Outer Schoodic Ridge). In addition, this action creates a dedicated habitat research area in Jordan Basin but does not impose any additional restrictions on fishing in this area. This action also establishes provisions for vessels transiting through these areas and adds framework provisions for future modifications to the New England Deep-Sea Coral Protection Area measures. The Magnuson-Stevens Act requires NMFS to approve, partially approve, or disapprove measures proposed by the Council based on whether the measures are consistent with fishery management plans (FMP), the Magnuson-Stevens Act and its National Standards, and other applicable law.

NMFS published a Notice of Availability (NOA) announcing its review of the Amendment on August 26, 2019 (84 FR 44596). The public comment period on the NOA ended on October 25, 2019. Following the Amendment's approval in November 2019, NMFS published a proposed rule for this action on January 3, 2020, including implementing regulations (85 FR 285). The public comment period on the proposed rule ended on February 18, 2020.

Georges Bank Deep-Sea Coral Protection Area

The Omnibus Deep-Sea Coral Amendment establishes a deep-sea coral protection area on the outer continental shelf in New England waters. It complements the Frank R. Lautenberg Deep-Sea Coral Protection Area established by the Mid-Atlantic Fishery Management Council in Amendment 16 to the Atlantic Mackerel, Squid, and Butterfish FMP (81 FR 90246; December 14, 2016) as described in § 648.372. The Georges Bank Deep-Sea Coral Protection Area runs along the outer continental shelf in waters no shallower than 600 meters (m) and extends to the outer limit of the EEZ boundary to the east and north, and south to the inter-council boundary as described in § 600.105(a).Start Printed Page 33554

This area is designated with the landward boundary drawn between the 600-m contour as a hard landward boundary and the 650-m contour as a hard seaward boundary. In some areas the boundary crosses the 650-m contour to draw this line as straight as possible; however, the boundary was constrained on its shallow side by the 600-m contour. From the landward boundary, the boundaries extend along the northern and southern boundaries of the New England Council's management region and to the edge of the EEZ as the eastward boundary.

Gear Restrictions in the Georges Bank Deep-Sea Coral Protection Area

This action prohibits the use of bottom-tending commercial fishing gear within the designated Georges Bank Deep-Sea Coral Protection Area, including: Bottom-tending otter trawls; bottom-tending beam trawls; hydraulic dredges; non-hydraulic dredges; bottom-tending seines; bottom longlines; pots and traps; and sink or anchored gillnets. The prohibition on these gears protects deep-sea corals from interaction with and damage from bottom-tending fishing gear. Red crab pot gear is exempt from the prohibition.

Mount Desert Rock Coral Protection Area

This action designates a coral protection area in an 8-square mile (mi2) (21-square kilometer (km2)) area southwest of Mount Desert Rock, a small, rocky island off the eastern Maine coast, about 20 nautical miles (nmi) (37 km) south of Mount Desert Island, encompassing depths of 100-200 m. Vessels are prohibited from fishing with bottom-tending mobile gear within the Mount Desert Rock Coral Protection Area. Bottom-tending mobile gear includes but is not limited to: Bottom-tending otter trawls; bottom-tending beam trawls; hydraulic dredges; non-hydraulic dredges; and seines (with the exception of a purse seine). This protects corals in this area from fishing impacts from these gears. Vessels are still able to fish for lobster in this area using trap gear.

Outer Schoodic Ridge Coral Protection Area

This action designates a coral protection area in a 31-mi2 (79-km2) area on the Outer Schoodic Ridge, roughly 25 nmi (46 km) southeast of Mount Desert Island, encompassing depths of 104-248 m. Vessels are prohibited from fishing with bottom-tending mobile gear within the Outer Schoodic Ridge Coral Protection Area. Bottom-tending mobile gear includes but is not limited to: Bottom-tending otter trawls; bottom-tending beam trawls; hydraulic dredges; non-hydraulic dredges; and seines (with the exception of a purse seine). This protects corals in this area from fishing impacts from these gears. Vessels are still be able to fish for lobster in this area using trap gear.

Transiting Provisions

Vessels are allowed to transit the Georges Bank, Mount Desert Rock, and Outer Schoodic Ridge Coral Protection Areas provided the vessels bring bottom-tending fishing gear onboard the vessel, and reel bottom-tending trawl gear onto the net reel. These transiting provisions are consistent with those established by the Mid-Atlantic Council for the Frank R. Lautenberg Deep-Sea Coral Protection Area.

Jordan Basin Dedicated Habitat Research Area

This action designates the area around Jordan Basin in the Gulf of Maine as a dedicated habitat research area, but it does not impose any additional restrictions on fishing in this area. The purpose of this designation is to encourage further exploration of coral habitats at the site, and to encourage research on fishing gear impacts on these habitats.

Framework Adjustments

This action adds framework adjustment provisions to facilitate future modifications to the New England Deep-Sea Coral Protection Areas. The new measures that may be changed using a framework adjustment include adding, revising, or removing coral areas; changing fishing restrictions in coral areas; and developing new, or changing existing, coral area fishery access or exploratory fishing programs.

Letters of Acknowledgement for Vessels Conducting Scientific Research

The Council requested that researchers seek a Letter of Acknowledgement (LOA) from NMFS before conducting research in these areas. Scientific research on a scientific research vessel is not considered fishing and is therefore exempt from the requirements of the Magnuson-Stevens Act (Magnuson-Stevens Act, Sec. 3, 50 CFR 600.10 and 600.512). NMFS cannot require that scientific research institutions request an LOA when conducting scientific research at sea on a scientific research vessel, but we will encourage researchers to do so, consistent with regulations implementing the Magnuson-Stevens Act provisions at 50 CFR 600.512.

Comments and Responses

We received six comments on the NOA. Five comments were in support of our approval of the amendment, and the sixth comment, from the New England Field Office of the U.S. Fish and Wildlife Service, was a statement of no comment on the action. We received 16 comments on the proposed rule. Thirteen of these comments were in support of the proposed rule, and the remaining three comments were in opposition to the rule because the commenters did not believe it went far enough to protect deep-sea corals.

The Atlantic Offshore Lobstermen's Association, Oceana, Conservation Law Foundation (CLF), the Pew Charitable Trust (Pew), and Wild Oceans commented in general support of the action on both the NOA and the proposed rule. One individual commented on the NOA in support of the rule. The New England Aquarium (NEAq) and seven individuals commented in support of the proposed rule. CLF, Pew, and Wild Oceans (collectively referred to as “joint commenters” below) submitted a joint comment also in general support of the action. Supporting this joint comment was a comment from Pew including 7,628 signatures. Oceana also included a letter with 193 signatures supporting the proposed rule. While all of these comments recommended that NMFS approve the amendment in full, Oceana, NEAq, and the joint commenters suggested that the amendment could have done more to protect deep-sea corals and recommended additional actions the Council and NMFS could take to support the deep-sea coral protection areas.

Comment 1: Oceana, NEAq, and one individual commented that the amendment leaves some coral habitat vulnerable to damage from fishing gear, and the joint commenters noted that this action still allows for expansion into coral areas untouched by fishing. NEAq noted that 20 percent of the suitable deep-sea coral habitat is present in the top 50-600 m of seafloor and that the Council should add protections to that area in a future action. NEAq stated that the 50- to 600-m region is designated as essential fish habitat for several species, including commercially important species. Two additional individuals commented that the Council should ban commercial fishing in the areas and leave them open only for subsistence fishing.

Response: We agree that this action does not protect all deep-sea coral habitat in New England waters and allows the possibility of future Start Printed Page 33555expansion of fishing. We note that this action also allows for the possibility of further expansion of deep-sea coral protections. The Council is not obligated to permanently protect all habitat suitable for deep-sea corals. This amendment was developed under the discretionary authority granted in section 303(b)(2)(B) of the Magnuson-Stevens Act that provides for protecting deep-sea coral after considering long-term sustainable uses of fishery resources. However, the Council's recommendation, which substantially protects deep-sea coral while allowing fishing to continue in a relatively small portion of the area, strikes a balance between continued operation of fisheries and deep-sea coral protection in a practical way. NMFS will encourage the Council to continue to consider further protections for areas of known-coral presence after considering the long-term sustainable uses of fishery resources in such areas.

Comment 2: CLF, Pew, and Wild Oceans jointly requested that NMFS require the Council to revisit the management exemption provided to the deep-sea red crab fishery. Oceana commented that the Council should regularly review the effects of red crab gear on coral and sponge habitat to ensure that the Amendment is achieving its goals. If the red crab gear is found to be threatening coral and sponge habitats, they suggest that revisions to the exemption may be warranted. They also requested that NMFS require the Council to consider a prohibition on anchoring to provide full protections from gears that can harm corals.

Response: NMFS does not have the authority to require the Council to consider a prohibition on anchoring of red crab gear to protect deep-sea corals. NMFS determined that the Council considered and complied with all the National Standards and the MSA's requirement to consider long-term sustainable uses of the fishery resources. Should the Council consider red crab gear prohibitions, NMFS will support the Council in the development of subsequent actions to further protect deep-sea coral.

Comment 3: The joint commenters also requested that NMFS require fishery managers to expand framework adjustment provisions in New England fishery management plans for future modifications to the deep-sea coral areas and management measures as new data become available.

Response: This action adds framework adjustment provisions to facilitate future modifications to the New England Deep-Sea Coral Protection Areas. The new measures that may be changed using a framework adjustment include: Adding, revising, or removing coral areas; changing fishing restrictions in coral areas; and developing new, or changing existing, coral area fishery access or exploratory fishing programs.

Comment 4: Oceana and NEAq discouraged the use of a framework to allow fishing in these newly protected areas. Oceana encouraged NMFS to carefully consider the suite of framework provisions included in the Amendment, only approve minor modifications that will strengthen conservation measures, and clearly state the qualifying actions required to approve framework measures. NEAq insisted that there be a full consultation with a wide variety of stakeholders, including scientists, fishermen, and non-governmental organizations, among others before allowing fishing within these areas.

Response: While the framework adjustment provisions included in the Amendment do allow for changes to coral protection areas and restrictions in those areas, NMFS will work with the Council to ensure that any framework adjustments are consistent with the goals and objectives of the Amendment and that the public is given the ability to participate, as with any Council action.

Comment 5: Both Oceana and the joint commenters requested that NMFS notify the Council if new information indicates the presence of corals outside of the protection area and instruct the Council to amend protections and conserve additional area. In addition, they encouraged NMFS to include a directive for the Council to review and revise the regulations implemented by the Amendment in the near future to ensure they are achieving the Amendment's goals and objectives.

Response: NMFS staff and members of the Council's Habitat Plan Development Team (PDT) actively inform the PDT and the Council of the results of new studies and deep-sea explorations and will continue to do so moving forward. However, NMFS does not have the authority to require the Council to increase protections. NMFS will work with the Council and its PDT on future actions to ensure that they consider new information that is relevant to the actions, consistent with MSA requirements.

Comment 6: Two individuals expressed concern that the vessel trip report (VTR) analysis used to consider financial impacts indicates that large and small businesses are facing substantially similar financial impacts overall, although the most highly exposed small businesses generate a larger fraction of their overall revenue from areas within the preferred alternative when compared to large businesses.

Response: The VTR data analysis indicates that between $6.5-$8.5 million in gross revenue will be potentially displaced under the preferred alternative, although analysis of the vessel monitoring system data suggests this revenue number is an overestimate. After Council discussions at the Council's coral workshops in March 2017, the Council determined that the designation of a broad coral protection zone in waters no shallower than 600 m would cause little change in bottom trawl, trap/pot, and gillnet effort, and that the use of the VTR data was leading to an overestimate of the potential displacement of effort because of the lack of precision in the data. The VTR's provide a single geographic location for a given trip. The VTR analysis puts uncertainty buffers around that point (in the form of concentric circles, representing the 25th, 50th, 75th, and 90th percentile confidence intervals based on statistical analyses of the distance between self-reported VTR points and observed hauls based on trip characteristics) and attribute the revenue from that trip proportionally across the buffer. For trips that occur close to the closure, that circle may bleed into the closure area, when, based on industry feedback, it is likely that no part of the trip actually occurred inside the closure. The industry input from the NEFMC coral workshops was that, due to the distribution of target species, the trawl fishery is active out to depths of about 500 m, the lobster fishery to 550 m, and the red crab fishery to 800 m. For those fisheries where it was possible, a comparison of VTR data and Vessel Monitoring System data, which provides more granular position data but lacks the relevant information on revenue and fishing effort, additionally suggest the values from VTR are overestimates in line with the workshop input.

Furthermore, this is an estimate of gross revenue from displaced effort, and fishermen could relocate that displaced effort to an area outside the closure and still generate revenue. The effort and costs associated with obtaining the catch elsewhere is likely to be higher than the that associated with any displaced fishing (if it is even economically, biologically, or geographically feasible). Otherwise, fishermen would presumably be fishing these other locations. Nevertheless, the gross revenue displaced can be viewed as a likely overestimated upper bound on impacts to the fishery.Start Printed Page 33556

The commenters did not provide any additional information to consider.

Comment 7: NEAq and two individuals commented that the economic benefit provided by deep-sea coral habitat to the ecosystem and the nation outweighs the economic impacts of prohibiting fishing in these areas. NEAq further commented that, “Deep-sea corals may provide a number of other ecosystem services, including serving as paleoclimatic records of past ocean conditions, providing sources of material that may be used in the production of novel pharmaceutical compounds, and sequestering excess carbon dioxide in the atmosphere. If deep-sea corals in the proposed protected area provide just 1 percent of the value that NOAA prescribes to shallow-water coral ecosystems, the deep-sea coral ecosystems protected through this proposed rule may be valued at over $42 million annually, or about 6 times the revenue extracted by fishing. We urge NMFS to continue studying and exploring deep-sea coral communities to understand better and properly evaluate the contribution of deep-sea corals to biological diversity, habitat, and human health.”

Response: NOAA continues to conduct research on deep-sea coral. For example, after the Council developed this action, in 2019 NOAA's Office of Ocean Exploration and Research conducted surveys in both areas and documented many previously unknown high-density coral and sponge communities, as well as coexisting commercially harvested species. On one expedition alone, 26 of the 35 samples collected extended known species' habitat ranges, and some may be previously unknown to science. Surveys also discovered the deepest high-density community known in the Northeast U.S. at 2,700 m (8,750 ft) deep. The NOAA Deep Sea Coral Research and Technology Program (DSCRTP) is supporting analysis of this new information to inform future decision-making.

Also in 2019, NOAA's Office of Science and Technology, National Systematics Lab, Northeast Fisheries Science Center, Dalhousie University, and Fisheries and Oceans Canada led a U.S.-Canada transboundary expedition. Compared to the deeper New England slope and canyons, extremely high coral densities were observed in the Gulf of Maine. Remotely operated vehicle surveys documented commercially important fish and shellfish in previously unknown deep-sea coral gardens. The DSCRTP intends to begin the next New England and Mid-Atlantic Deep-Sea Coral Initiative starting in 2022, continuing fieldwork through 2024, followed by analysis of this data in 2025. This information was unavailable to the Council at the time this rule was developed. We expect the Council will consider this information and any other newly discovered and available information in future deep-sea coral actions.

Further, attempting to balance the value of all coral in areas managed through the Deep Sea Coral Amendment against the value of fishing in these areas does not provide an accurate view of the benefits of this action. The benefits derived from conservation actions undertaken in the Deep Sea Coral Amendment stem from the difference between no action (status quo) and the alternatives chosen. This is primarily the change in coral function and extent before and after this action. We expect that this action will preserve coral and promote its vitality, which is expected to provide benefits as noted by NEAq. However, comparing the total value generated from the stock of deep sea coral against the value of past fishing activity provides an inapt description of the benefits of this action. A more accurate view is a consideration of the net benefits due to increased conservation of deep sea coral along with the net benefits maintained by the fishery from its potential displacement of effort as compared to status quo.

Classification

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this Amendment and final rule are consistent with the Omnibus Deep-Sea Coral Amendment, other provisions of the Magnuson-Stevens Act, and other applicable law.

The Office of Management and Budget determined this rule to be significant for purposes of Executive Order 12866. The suite of preferred alternatives in this action mitigate a substantial proportion of the negative impacts to the commercial fisheries compared to other alternatives in the document. However, this comes along with a trade-off with any conservation benefits associated with deep sea coral protection, the value of which are uncertain at this time. As described above, the intent of this action is to freeze the footprint of existing fishing, and this action was developed through the Council process with significant input from the fishing industry. The VTR data analysis indicates that between $10-$15 million in gross revenue will be potentially displaced under the preferred alternative, although analysis of the vessel monitoring system data suggests this revenue number is an overestimate.[1] Furthermore, this is an estimate of gross revenue from displaced effort, and fishermen could relocate that displaced effort to an area outside the closure and still generate revenue. A description of and caveats associated with the impact analyses undertaken in support of this action can be found in section 7.1 of the EA. The discussion in section 7.1 of the EA includes issues associated with quantifying the full range of costs and benefits associated with the Amendment. The expected effects of each alternative relative to the status quo for the fishery-related businesses and communities are discussed in sections 7.2-7.4 of the EA, and a discussion of the benefits and costs of the preferred alternative can be found in section 1.2 of the FRFA.

This final rule does not contain policies with federalism or “takings” implications, as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

This action does not contain any collection-of-information requirements subject to the Paperwork Reduction Act.

Pursuant to section 604 of the Regulatory Flexibility Act (RFA), NMFS has completed a FRFA in support of this action. The FRFA incorporates the IRFA, a summary of the significant issues raised by public comments in response to the IRFA (see below), NMFS responses to those comments (as described above in the Comments and Responses section of this final rule), and a summary of the analyses completed in the Omnibus Deep-Sea Coral Amendment EA in section 11.3. In addition, because of the unusual delay between the Council's adoption of the Amendment and this final rule, NMFS prepared a standalone FRFA to recast analyses from 2014 constant dollars to 2020 constant dollars to be more accessible to the general public. A summary of the IRFA was published in the proposed rule for this action and is not repeated here. A description of why this action was considered, the objectives of, and the legal basis for this rule is contained in the Amendment and in the preambles to the proposed rule and this final rule, and is not repeated here. All of the documents that constitute the FRFA are available from NMFS and/or the Council, and a copy Start Printed Page 33557of the IRFA, RIR, the FRFA, and the EA are available upon request (see ADDRESSES). Following are additional elements of the FRFA.

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

The proposed rule solicited public comment on whether the VTR analysis indicates that large and small businesses are facing substantially similar impact levels overall, although the most highly exposed small businesses generate a larger fraction of their overall revenue from areas within the preferred alternative when compared to large businesses. Two individuals expressed concern regarding this issue but did not provide any additional information to consider. See Comment 6 above.

The proposed rule also solicited public comment on value estimates for the benefits associated with deep-sea coral conservation. The NEAq and two individuals commented that the economic benefit of the ecosystem services that deep-sea coral habitat provides outweighs the economic impacts of prohibiting fishing in these areas. NEAq further commented that, “Deep-sea corals may provide a number of other ecosystem services, including serving as paleoclimatic records of past ocean conditions, providing sources of material that may be used in the production of novel pharmaceutical compounds, and sequestering excess carbon dioxide in the atmosphere. If deep-sea corals in the proposed protected area provide just 1 percent of the value that NOAA prescribes to shallow-water coral ecosystems, the deep-sea coral ecosystems protected through this proposed rule may be valued at over $42 million annually, or about 6 times the revenue extracted by fishing.” See Comment 7 above. As explained above, NMFS did not make any changes to the proposed rule as a result of these comments.

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

The description and estimate of the number of small entities that is available in the proposed rule was presented in 2014 constant dollars. However, because of the unusual delay between the Council's completion of the Amendment and this final rule, NMFS recast this analysis from 2014 constant dollars to 2020 constant dollars to be more accessible to the general public.

The RFA recognizes three kinds of small entities: Small businesses, small organizations, and small governmental jurisdictions. Small organizations and small governmental jurisdictions are not directly regulated by this action. For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates) and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. Throughout this section, revenue is presented in 2020 dollars, for consistency with the remainder of the document, although classification was made using 2017 dollars, consistent with SBA guidelines. Further, SBA rules of affiliation are used to define a business entity. Thus, the following analysis is conducted upon unique business interests, which can represent multiple vessel-level permits.

The Deep-Sea Coral Amendment regulates all fishermen with federal permits allowing the holder to fish in the federal waters off Southern New England, Georges Bank, and the Gulf of Maine. In 2017, this represents 10 large commercial fishing businesses, 3,832 small commercial fishing businesses and 351 recreational for-hire businesses. However, based on VTR data, only ~200 of these small businesses had any documented fishing activity in the coral protection zone from 2015 to 2017, annually. Total revenue from estimates used in entity classification can be found in Table 1.

Table 1—Totals for Revenue Estimates Used for Entity Classification, in $2020

YearSizeEntity typeTotal revenueCommercial revenueFor-hire revenue
2015Large BusinessCommercial Fishing$201,865,333$201,865,333$0
2016Large BusinessCommercial Fishing214,552,827214,548,4644,363
2017Large BusinessCommercial Fishing224,672,712224,672,7120
2015Small BusinessCommercial Fishing1,073,834,8191,072,683,8871,150,932
2016Small BusinessCommercial Fishing1,177,052,9101,176,007,5301,045,380
2017Small BusinessCommercial Fishing1,103,842,2631,102,971,802870,461
2015Small BusinessRecreational For-hire111,023,26955,709,17855,314,091
2016Small BusinessRecreational For-hire116,426,50258,483,08857,943,414
2017Small BusinessRecreational For-hire109,749,12955,131,24354,617,886

Taking the recast analysis in 2020 constant dollars and public comments into consideration, NMFS has identified no additional significant alternatives that accomplish statutory objectives and minimize any significant economic impacts of the rule on these small entities. This is because the recreational for-hire sector is not active in the management regions identified in this action, and the alternatives considered were developed to take into account impacts on entities fishing in these areas. Further, the new size standards for for-hire vessels do not affect the decision to prepare a final regulatory flexibility analysis as opposed to a certification for this action. This is because all for-hire entities in the region are already classified as small businesses.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Final Rule

This action contains no new collection-of-information, reporting, or recordkeeping requirements. There are potential economic impacts to small entities associated with this rule. Those impacts are described in detail in the Final Omnibus Deep Sea Coral Amendment, specifically, in the FRFA section 1.2.4.2 and in the analysis of the impacts on human communities in section 7.1.3 of the EA, which is still applicable.Start Printed Page 33558

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

Throughout the development of this action the Council considered public comments on how fisherman would be impacted. On March 13 and 15, 2017, the Council held workshops in New Bedford, MA, and Portsmouth, NH, respectively, to discuss the coral zone boundaries, considering the canyon and slope zones on Georges Bank (broad zone) at the first meeting, and the offshore Gulf of Maine zones at the second. Based on these discussions at the Council's coral workshops, it was determined that the designation of a broad coral protection zone in waters no shallower than 600 m causes little change in bottom trawl, trap/pot, and gillnet effort, and that the use of the VTR data was leading to an overestimate of the potential displacement of effort because of the lack of precision in the data. Furthermore, the VTR analysis provides an estimate of gross revenue of displaced effort, and fishermen could relocate that displaced effort to an area outside the closure and still generate revenue. The preferred alternative that this action implements is a direct result of input gathered at these workshops. In addition, the Council exempted the red crab fishery from these restrictions in the Georges Bank Deep-Sea Coral Protection Area because it is a small fishery that takes place entirely within the protection area, and prohibiting the red crab effort from the area would essentially end the red crab fishery.

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 will publish one or more guides to assist small entities in complying with the rule, and will designate such publications as “small entity compliance guides.” The agency will 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, a bulletin to permit holders that also serves as a small entity compliance guide was prepared. This final rule and the guide (i.e., bulletin) will be sent via email to the Greater Atlantic Regional Fisheries Office scallop email list and are available on the website at: http://www.greateratlantic.fisheries.noaa.gov/​. Hard copies of the guide and this final rule will be available upon request (see ADDRESSES).

Start List of Subjects

List of Subjects in 50 CFR Part 648

  • Fisheries
  • Fishing
  • Recordkeeping and reporting requirements
End List of Subjects Start Signature

Dated: June 17, 2021.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

End Signature

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:

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PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

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1. The authority citation for part 648 continues to read as follows:

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Authority: 16 U.S.C. 1801 et seq.

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2. In § 648.14, add paragraphs (b)(13) through (15) to read as follows:

End Amendment Part
Prohibitions.
* * * * *

(b) * * *

(13) Fish with bottom-tending gear within the Georges Bank Deep-Sea Coral Protection Area described at § 648.373(a)(2), unless transiting pursuant to § 648.373(d) or fishing red crab trap gear in accordance with § 648.264. Bottom-tending gear includes, but is not limited to, bottom-tending otter trawls, bottom-tending beam trawls, hydraulic dredges, non-hydraulic dredges, bottom-tending seines, bottom longlines, pots and traps, and sink or anchored gill nets.

(14) Fish with bottom-tending mobile gear within the Mount Desert Rock Coral Protection Area described at § 648.373(b), unless transiting pursuant to § 648.373(d). Bottom-tending mobile gear includes, but is not limited, to otter trawls, beam trawls, hydraulic dredges, non-hydraulic dredges, and seines (with the exception of a purse seine).

(15) Fish with bottom-tending mobile gear within the Outer Schoodic Ridge Coral Protection Area described at § 648.373(c), unless transiting pursuant to § 648.373(d). Bottom-tending mobile gear includes, but is not limited to, otter trawls, beam trawls, hydraulic dredges, non-hydraulic dredges, and seines (with the exception of a purse seine).

* * * * *
Start Amendment Part

3. In § 648.371 revise paragraph (d) and add paragraph (f) to read as follows:

End Amendment Part
Dedicated Habitat Research Areas.
* * * * *

(d) Transiting. Unless otherwise restricted or specified in this paragraph (d), a vessel may transit the Dedicated Habitat Research Areas of this section provided that its prohibited gear is stowed and not available for immediate use as defined in § 648.2.

* * * * *

(f) Jordan Basin Dedicated Habitat Research Area. (1) The Jordan Basin DHRA is defined by the following coordinates, connected in the order listed by straight lines:

Table 3 to Paragraph (f)(1)

PointLongitudeLatitude
DHRA1−67°51.38′43°27.47′
DHRA2−67°47.38′43°27.46′
DHRA3−67°47.18′43°16.92′
DHRA4−67°51.05′43°17.05′
DHRA1−67°51.38′43°27.47′

(2) Fishing vessels, regardless of gear type, may fish within the Jordan Basin DHRA.

* * * * *
Start Amendment Part

4. Add § 648.373 to read as follows:

End Amendment Part
New England Deep-Sea Coral Protection Areas

(a) Georges Bank Deep-Sea Coral Protection Area. (1) No vessel may fish with bottom-tending gear within the Georges Bank Deep-Sea Coral Protection Area described in this section, unless transiting pursuant to paragraph (d) of this section or fishing red crab trap gear in accordance with § 648.264. Bottom-tending gear includes, but is not limited to, bottom-tending otter trawls, bottom-tending beam trawls, hydraulic dredges, non-hydraulic dredges, bottom-tending seines, bottom longlines, pots and traps, and sink or anchored gillnets.Start Printed Page 33559

(2) The Georges Bank Deep-Sea Coral Protection Area is bound on the west by the New England/Mid-Atlantic Inter-council Boundary line (detailed in paragraph (a)(2)(i) of this section); bound on the north by a simplified line (detailed in paragraph (a)(2)(ii) of this section) following the 600m depth contour along the southern flank of Georges Bank; and bound on the east and south by the U.S.-Canada Maritime Boundary and the outer limit of the U.S. Exclusive Economic Zone (detailed in paragraph (a)(2)(iii) of this section).

(i) The western boundary is defined by the following coordinates, connected in the order listed, south to north, by straight lines:

Table 1 to Paragraph (a)(2)(i)

PointLongitudeLatitudeNote
1−68°47.62′38°2.21′(1)
2−68°49.99′38°4.84′
3−68°57.35′38°13.00′
4−69°4.73′38°21.15′
5−69°12.13′38°29.29′
6−69°19.57′38°37.42′
7−69°27.03′38°45.54′
8−69°34.53′38°53.66′
9−69°42.05′39°1.77′
10−69°49.60′39°9.86′
11−69°57.18′39°17.96′
12−70°4.78′39°26.04′
13−70°12.42′39°34.11′
14−70°20.09′39°42.18′
15−70°27.78′39°50.24′
16−70°31.64′39°54.26′
17−70°32.09′39°54.72′(2)
Notes:
(1) POINT 1 represents the outer limit of the US EEZ.
(2) POINT 17 represents where the western and northern boundaries meet.

(ii) The northern (nearshore) boundary is defined by the following coordinates, connected in the order listed, west to east, by straight lines.

Table 2 to Paragraph (a)(2)(ii)

PointLongitudeLatitudeNote
17−70°32.09′39°54.72′(3)
18−70°29.83′39°59.78′
19−70°28.72′39°54.41′
20−70°27.52′39°53.44′
21−70°26.05′39°53.13′
22−70°23.81′39°53.13′
23−70°22.44′39°53.72′
24−70°21.97′39°54.94′
25−70°20.12′39°53.97′
26−70°16.98′39°53.60′
27−70°17.35′39°54.55′
28−70°16.99′39°54.77′
29−70°17.55′39°57.01′
30−70°16.69′39°57.06′
31−70°14.54′39°57.75′
32−70°13.64′39°58.44′
33−70°12.58′39°58.82′
34−70°12.16′39°58.32′
35−70°13.85′39°56.68′
36−70°14.29′39°56.56′
37−70°12.51′39°55.18′
38−70°11.17′39°55.2′
39−70°11.19′39°54.34′
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41−70°7.98′39°54.17′
42−70°6.99′39°54.94′
43−70°6.56′39°53.85′
44−70°4.99′39°53.24′
45−70°02.97′39°52.62′
46−70°02.70′39°53.66′
47−70°01.24′39°54.69′
48−70°00.34′39°53.26′
49−69°59.41′39°52.49′
50−69°57.88′39°52.61′
51−69°57.05′39°53.05′
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458−66°23.05′41°02.64′
459−66°24.77′41°03.86′
460−66°24.03′41°04.11′
461−66°24.60′41°04.95′
462−66°22.60′41°04.23′
463−66°21.17′41°04.35′
464−66°21.11′41°05.02′
465−66°19.77′41°04.45′
466−66°18.07′41°06.00′
467−66°18.24′41°07.82′
468−66°17.07′41°08.68′
469−66°16.90′41°08.93′
470−66°16.86′41°08.98′(4)
Notes:
(3) POINT 17 represents where the western and northern boundaries meet.
(4) POINT 470 represents the U.S.-Canada Maritime Boundary.

(iii) The eastern and southern boundary (from Point 470) follows the U.S.-Canada Maritime Boundary southeasterly to its intersection with the outer limit of the U.S. Exclusive Economic Zone. The boundary then follows the outer limit of the U.S. Exclusive Economic Zone southwesterly back to its origin at POINT 01.

(b) Mount Desert Rock Coral Protection Area. (1) No vessel may fish with bottom-tending mobile gear, as defined in § 648.2, within the Mount Desert Rock Coral Protection Area described in this section, unless transiting pursuant to paragraph (d) of this section. Bottom-tending mobile gear includes, but is not limited to, otter Start Printed Page 33566trawls, beam trawls, hydraulic dredges, non-hydraulic dredges, and seines (with the exception of a purse seine).

(2) The Mount Desert Rock Coral Protection Area is defined by the following coordinates, connected in the order listed by straight lines:

Table 3 to Paragraph (b)(2)

PointLongitudeLatitude
MDR1−68°13.16′43°56.99′
MDR2−68°12.00′43°57.00′
MDR3−68°11.45′43°56.17′
MDR4−68°12.21′43°52.62′
MDR5−68°14.32′43°52.11′
MDR1−68°13.16′43°56.99′

(c) Outer Schoodic Ridge Coral Protection Area. (1) No vessel may fish with bottom-tending mobile gear, as defined in § 648.2, within the Outer Schoodic Ridge Coral Protection Area described in this section, unless transiting pursuant to paragraph (d) of this section. Bottom-tending mobile gear includes, but is not limited to, otter trawls, beam trawls, hydraulic dredges, non-hydraulic dredges, and seines (with the exception of a purse seine).

(2) The Outer Schoodic Ridge Coral Protection Area is defined by the following coordinates, connected in the order listed by straight lines:

Table 4 to Paragraph (c)(2)

PointLongitudeLatitude
OSR1−67°35.60′44°13.49′
OSR2−67°33.10′44°12.56′
OSR3−67°39.70′44°02.48′
OSR4−67°42.29′44°03.48′
OSR1−67°35.60′44°13.49′

(d) Transiting. Vessels may transit the New England Deep-Sea Coral Management Areas defined in this section, provided bottom-tending trawl nets are out of the water and stowed on the reel and any other fishing gear that is prohibited in these areas is onboard, out of the water, and not deployed. Fishing gear is not required to meet the definition of “not available for immediate use” in § 648.2, when a vessel transits the New England Deep-Sea Coral Management Areas.

(e) Framework adjustments. The Council may at any time initiate a framework adjustment to add or adjust management measures within the New England Deep-Sea Coral Management Areas if it finds that action is necessary to meet or be consistent with the goals and objectives of those areas. The Council shall develop and analyze appropriate management actions over the span of at least two Council meetings. The Council shall provide the public with advance notice of the availability of both the proposals and the analyses, and opportunity to comment on them prior to and at the second Council meeting. Measures that may be changed or implemented through framework action include:

(1) Adding, revising, or removing coral areas;

(2) Changing fishing restrictions in coral areas; and

(3) Developing new, or changing existing, coral area fishery access or exploratory fishing programs.

End Supplemental Information

Footnotes

1.  As discussed later in the preamble, the use of the VTR data was leading to an overestimate of the potential displacement of effort because of the lack of precision in the data. Furthermore, the VTR analysis provides an estimate of gross revenue of displaced effort, and fishermen could relocate that displaced effort to an area outside the closure and still generate revenue.

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[FR Doc. 2021-13293 Filed 6-24-21; 8:45 am]

BILLING CODE 3510-22-P