[Federal Register Volume 61, Number 242 (Monday, December 16, 1996)]
[Rules and Regulations]
[Pages 65983-65985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31766]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 950810206-6288-06; I.D. 070296D]
RIN 0648-AG29


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Amendment 12

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement the approved measures 
of Amendment 12 to the Fishery Management Plan for the Reef Fish 
Resources of the Gulf of Mexico (FMP). These measures reduce the bag 
limit for greater amberjack to one fish and establish a 20-fish 
aggregate bag limit for reef fish species for which there are no other 
bag limits. The intended effects of this rule are to provide additional 
protection for greater amberjack, conserve reef fish, and enhance 
enforcement.

EFFECTIVE DATE: January 15, 1997.

FOR FURTHER INFORMATION CONTACT: Robert Sadler, 813-570-5305.

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico 
is managed under the FMP. The FMP was prepared by the Gulf of Mexico 
Fishery Management Council (Council) and is implemented through 
regulations at 50 CFR part 622 under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
    Based on a preliminary evaluation of Amendment 12 at the beginning 
of formal agency review, NMFS disapproved measures in Amendment 12 that 
would have reduced the minimum size limit for red snapper harvested in 
the commercial fishery. On August 21, 1996, NMFS published a proposed 
rule to implement the remaining measures of Amendment 12 (61 FR 43215). 
The Council's rationale for the remaining measures in Amendment 12, as 
well as the reasons for NMFS' disapproval of the proposed measures to 
reduce the minimum size limit for red snapper, are contained in the 
preamble of the proposed rule and are not repeated here.

Comments and Responses

    A total of 354 entities, including the Florida Marine Fisheries 
Commission

[[Page 65984]]

(FMFC), submitted comments on Amendment 12 and/or on the proposed rule. 
Of these commenters, 224 opposed both the proposed 1-fish aggregate bag 
limit for greater amberjack, lesser amberjack, and banded rudderfish, 
and the proposed 28-inch (71.1-cm) fork-length recreational size limit 
for lesser amberjack and banded rudderfish in the Gulf of Mexico. A 
total of 131 commenters opposed the proposed 20-fish aggregate bag 
limit. Several of the commenters addressed the proposed measures but 
also discussed reef fish management issues and alternative management 
measures beyond the scope of the proposed rule. In addition, the U.S. 
Fish and Wildlife Service indicated that it reviewed Amendment 12 but 
had no comments at this time.

Banded Rudderfish and Lesser Amberjack Size and Bag Limits

    Comment: FMFC opposed the proposed 28-inch (71.1-cm) fork-length 
recreational size limit and 1-fish per person aggregate bag limit for 
greater amberjack, lesser amberjack, and banded rudderfish. FMFC 
believes that the expected adverse effects of the measures on 
recreational fisheries for banded rudderfish and lesser amberjack, 
particularly for-hire recreational fisheries, would be greater than had 
been anticipated by the Council. FMFC also is concerned that the 
proposed minimum size regulation would unfairly shift the banded 
rudderfish and lesser amberjack resources from a mixed recreational-
commercial fishery to a solely commercial fishery.
    FMFC indicated that it was only after the Council had adopted the 
28-inch (71.1-cm) minimum size limit, and the 1-fish bag limit for the 
three species combined, that public comment provided evidence of the 
importance of banded rudderfish and lesser amberjack to the 
recreational fisheries in Florida. In addition, FMFC stated that these 
measures would be unfair since the recreational for-hire industry, 
particularly in the eastern Gulf of Mexico, has been traditionally 
dependent on the harvest of banded rudderfish and lesser amberjack 
while the commercial fishery has not. One of the commenters noted that 
banded rudderfish and lesser amberjack currently harvested in the 
recreational sector would remain susceptible to commercial harvest 
without size limits.
    FMFC also noted that banded rudderfish and lesser amberjack rarely 
reach the proposed 28-inch (71.1-cm) recreational minimum size and, 
thus, would rarely occur in the recreational harvest. FMFC stated that, 
as a result, significant quantities of banded rudderfish and lesser 
amberjack, historically harvested in the recreational fishery, would 
remain susceptible to unlimited commercial harvest (i.e., without size 
limits or quotas).
    Response: NMFS acknowledges that information provided by FMFC and 
other public comments document a previously unrecognized and 
economically significant catch of banded rudderfish and lesser 
amberjack by the recreational for-hire sector. The Council's 
consideration of the effects of these provisions was limited because, 
as stated in Amendment 12, the extent of the reduction in harvest was 
unknown at that time. As a result, the Council may not have been able 
to adequately judge the magnitude of the impacts of these measures 
prior to taking final action on Amendment 12. NMFS further acknowledges 
that the proposed minimum size and bag limit measures for banded 
rudderfish and lesser amberjack would shift essentially all harvest of 
those species from the recreational fishery to the commercial fishery. 
These species rarely reach the proposed recreational size limit and 
thus would be retained almost exclusively in the commercial fishery 
where no size or bag limit applies.
    Although the Council did not structure or present this aspect of 
the measure as a deliberate, direct allocation, the allocative effects 
of the measure of moving fish from one discrete user group to another 
are as significant as the effects of any direct allocation measure. 
Information from FMFC and voluminous public comments underscore this 
point. Therefore, this aspect of the measure operates as the functional 
equivalent of such a direct allocation, and NMFS considers these 
allocative effects unfair and inequitable. Accordingly, NMFS 
disapproved these measures because they are inconsistent with National 
Standard 4 of the Magnuson-Stevens Act, which requires that allocations 
of fishing privilege be fair and equitable to all fishermen.

Reduction in Greater Amberjack Bag Limit

    Comment: A total of 224 commenters objected to the reduction in the 
greater amberjack bag limit from three fish to one fish as 
inappropriate and burdensome, especially for charter vessels and 
overnight headboat customers. These commenters indicated that a 1-fish 
bag limit would adversely affect their for-hire business, as many 
anglers would not make a trip for one greater amberjack (or two greater 
amberjack on overnight headboat and charter vessel trips).
    Response: NMFS approved the reduction in the greater amberjack bag 
limit based on data that indicate substantial declines in recreational 
landings and other reports of a significant decline in the status of 
the resource. NMFS believes that the 1-fish bag limit will provide 
conservation benefits for the greater amberjack resource. NMFS 
acknowledges that the for-hire sector may experience a minor decrease 
in income as a result of the necessary reduction in the greater 
amberjack bag limit. NMFS observes that the revised bag limit measure 
does not prevent catch and release of more than one greater amberjack.
    Amendment 12 states that greater amberjack are reproductively 
active starting at 32 inches (81.3 cm) for females and 33 inches (83.8 
cm) for males. Some of the greater amberjack that must be released in 
the recreational fishery under the 28-inch (71.1-cm) minimum size limit 
and 1-fish bag limit are expected to reproduce before they reach the 
36-inch (91.4-cm) minimum size limit for the commercial fishery and are 
harvested. Further, some fish would survive beyond the 36-inch stage, 
providing additional benefits for improving the stock condition. NMFS 
believes that the resulting additional reproductive activity for 
greater amberjack will provide conservation benefits that outweigh the 
associated short-term adverse economic impacts.
    Also, NMFS acknowledges that the lack of uniform size and bag 
limits for the morphologically similar banded rudderfish and lesser 
amberjack may deter enforcement of the greater amberjack bag limit to 
the extent that the three species are misidentified. However, the 
reduced bag limit has been approved as a first step towards effective 
conservation and management of greater amberjack. NMFS anticipates that 
the Council will propose alternative management measures for banded 
rudderfish and lesser amberjack in the future that are fair and 
equitable to all fishermen, should such action prove necessary to 
conserve greater amberjack.

Aggregate Bag Limit for Reef Fish Without Bag Limits

    Comment: A total of 131 commenters objected to the proposed 20-fish 
aggregate bag limit. These commenters stated that the measure would 
cause adverse economic impacts on the recreational fishery and is not 
needed to protect reef fish species currently not managed under bag 
limits.
    Response: The Council, prior to its deliberations on Amendment 12, 
considered NMFS data that indicated that the adverse economic impacts 
of

[[Page 65985]]

the aggregate bag limit would be insignificant. The public comments 
provide no substantive information to support their claim of extensive 
economic impacts. Accordingly, NMFS disagrees with these comments. NMFS 
has approved the 20-fish aggregate bag limit as a risk-averse measure 
to prevent an uncontrolled increase in harvest of reef fish species for 
which no bag limits are in effect.
    The measure would prevent unlimited harvest of reef fish by persons 
not fishing under commercial reef fish vessel permits. Currently, such 
persons can catch and land an unlimited number of reef fish species not 
subject to a bag limit; while sale of these species is not legal 
without a commercial permit, it is difficult to enforce this sale 
restriction. The aggregate bag limit should enhance enforcement of the 
prohibition on sale of reef fish by those persons.
    The 20-fish aggregate bag limit will include banded rudderfish and 
lesser amberjack, since NMFS disapproved the bag limit for those two 
species, and will help restrain recreational harvest. As previously 
indicated, NMFS anticipates that the Council will initiate additional 
management measures for banded rudderfish and lesser amberjack which 
will contribute to the conservation of greater amberjack.
    Comment: One commenter stated that the measure would encourage 
culling of the catch at sea (i.e., continual discard of the smaller 
reef fish to obtain the largest fish under the 20-fish aggregate bag 
limit) and, therefore, should be disapproved.
    Response: NMFS acknowledges that persons may continue to harvest 
and retain the largest reef fish caught under the 20-fish aggregate bag 
limit. NMFS does not encourage this practice because some of the 
discarded reef fish may not survive release. The aggregate bag limit, 
however, will prevent an uncontrolled harvest of reef fish currently 
without bag limits and, thereby, should provide greater conservation 
benefits than the status quo.

Changes from the Proposed Rule

    As discussed above, the minimum size limit for banded rudderfish 
and lesser amberjack, applicable to persons subject to the bag limit, 
is removed. Also, banded rudderfish and lesser amberjack are not 
included in a bag limit with greater amberjack.

Classification

    The Regional Administrator, Southeast Region, NMFS, with 
concurrence by the Assistant Administrator for Fisheries, NOAA, 
determined that the approved measures of Amendment 12 are necessary for 
the conservation and management of the reef fish fishery of the Gulf of 
Mexico and that it is consistent with the Magnuson-Stevens Act and 
other applicable law, with the exception of those measures that were 
disapproved.
    This action has been determined to be not significant for purposes 
of E.O. 12866.
    Before the proposed rule was published, the Assistant General 
Counsel for Legislation and Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that the proposed rule, if implemented, would not have a 
significant economic impact on a substantial number of small entities. 
Accordingly, a regulatory flexibility analysis was not prepared. 
Specific findings supporting that conclusion were summarized in the 
proposed rule and are not repeated here. No public comments on the 
certification were received. The disapproval of the banded rudderfish 
and lesser amberjack management measures did not alter those findings 
or conclusions regarding the impacts of the approved measures of 
Amendment 12 that are implemented by this rule.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

    Dated: December 10, 1996.
Gary Matlock,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 622 is amended 
as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

    1. The authority citation for part 622 continues to read as 
follows:

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

    2. In Sec. 622.39, paragraph (b)(1)(i) is revised, and paragraph 
(b)(1)(v) is added to read as follows:


Sec. 622.39  Bag and possession limits.

* * * * *
    (b) * * *
    (1) * * *
    (i) Greater amberjack--1.
* * * * *
    (v) Gulf reef fish, combined, excluding those specified in 
paragraphs (b)(1) (i) through (iv) of this section--20.
* * * * *
[FR Doc. 96-31766 Filed 12-13-96; 8:45 am]
BILLING CODE 3510-22-W