[Federal Register Volume 64, Number 127 (Friday, July 2, 1999)]
[Proposed Rules]
[Pages 35981-35984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16916]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 990625173-9173-01; I.D. 033199C]
RIN 0648-AL57


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Amendment 16B

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

ACTION: Proposed rule, request for comments.

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SUMMARY: NMFS issues this proposed rule to implement Amendment 16B to 
the Fishery Management Plan for the Reef Fish Resources of the Gulf of 
Mexico (FMP). This proposed rule would establish size limits for banded 
rudderfish, lesser amberjack, cubera snapper, dog snapper, mahogany 
snapper, mutton snapper, schoolmaster, scamp, gray triggerfish, and 
hogfish; exclude banded rudderfish, lesser amberjack, and hogfish from 
the 20-fish aggregate (combined) reef fish bag limit; establish new bag 
limits for hogfish, speckled hind, warsaw grouper, and for banded 
rudderfish and lesser amberjack combined; and remove queen triggerfish 
from the listing of Gulf reef fish and from the applicable regulations. 
The intended effect of this rule is to conserve and manage the reef 
fish resources of the Gulf of Mexico.

DATES: Written comments must be received on or before August 16, 1999.

ADDRESSES: Comments on the proposed rule must be sent to Dr. Roy E. 
Crabtree, Southeast Regional Office, NMFS, 9721 Executive Center Drive 
N., St. Petersburg, FL 33702.
    Requests for copies of Amendment 16B, which includes an 
environmental assessment, and a regulatory impact review (RIR) should 
be sent to the Gulf of Mexico Fishery Management Council, Suite 1000, 
3018 U.S. Highway 301 North, Tampa, FL 33619; Phone: 813-228-2815; Fax: 
813-225-7015; E-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Dr. Roy E. Crabtree at 727-570-5305; 
Fax: 727-570-5583.

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 under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
    Amendment 16B establishes more conservative bag and size limits for 
several reef fish species and improves consistency with Florida's 
regulations, thereby improving enforcement.

Measures for Minor Amberjack Species

    The word ``minor'' used by the Council in the FMP is not intended 
to reflect on the significance of these measures but instead to refer 
to the species banded rudderfish and lesser amberjack. A 1996 NMFS 
stock assessment suggests that the number of young greater amberjack 
has decreased steadily since 1991. In addition, anecdotal information 
from anglers along Florida's Gulf coast suggests that greater amberjack 
have decreased in size and abundance in recent years. In response to 
this information, the Council developed Amendment 12 to the FMP that 
established a 1-fish bag limit for greater amberjack and Amendment 15 
to the FMP that established a seasonal closure of the commercial 
fishery. Under the FMP, greater amberjack are also subject to minimum 
size limits of 28 inches (71.1 cm) fork length for the recreational 
fishery and 36 inches (91.4 cm) for the commercial fishery.
    Juvenile greater amberjack, lesser amberjack, and banded rudderfish 
are difficult for the public to distinguish; consequently, 
misidentified juvenile greater amberjack may be landed as lesser 
amberjack or banded rudderfish, species that are currently unregulated. 
Therefore, the Council believes that additional protection for juvenile 
greater amberjack is warranted. The intent of this rule is to reduce 
the harvest of misidentified juvenile greater amberjack by limiting the 
harvest of these minor amberjack species.
    The Council proposed in FMP Amendment 12 to apply an aggregate bag 
limit and a minimum size limit of 28 inches (71.1 cm) to greater 
amberjack, lesser amberjack, and banded rudderfish. These proposed

[[Page 35982]]

measures would have effectively eliminated the recreational harvest of 
banded rudderfish and lesser amberjack because these species rarely, if 
ever, reach 28 inches (71.1 cm). Although the Council did not present 
this aspect of the measures as a deliberate, direct allocation, it 
would have operated as the functional equivalent of a direct allocation 
because the effect of the measures would have been to shift the 
allocation of these species from principally recreational to entirely 
commercial. NMFS, considering this allocation unfair and inequitable, 
disapproved this portion of Amendment 12 based on national standard 4 
of the Magnuson-Stevens Act, which requires that allocations of fishing 
privilege be fair and equitable to all fishermen.
    Amendment 16B proposes new bag and size limits that should reduce 
the harvest of banded rudderfish, lesser amberjack, and misidentified 
greater amberjack while continuing to allow a limited recreational 
harvest of banded rudderfish and lesser amberjack. The proposed rule 
would (1) establish a ``slot limit'' of 14 inches (35.6 cm) (minimum) 
to 22 inches (55.9 cm) (maximum) fork length for the commercial and 
recreational harvest of banded rudderfish and lesser amberjack and (2) 
establish a 5-fish aggregate bag limit for banded rudderfish and lesser 
amberjack and exclude both species from the 20-fish aggregate reef fish 
bag limit.

Species Not Listed in the Management Unit

    Since its inception, the FMP has included two lists of reef fishes: 
one of species in the management unit and another of species in the 
fishery but not included in the management unit. The establishment of a 
list of species in the fishery not to be included in the management 
unit was originally intended for data collection purposes only; 
however, the existence of two lists has created confusion regarding 
which species are subject to the FMP's management measures and 
implementing regulations. Amendment 16B would eliminate the distinction 
in the FMP between these two lists and create a single list of 
``species in the reef fish FMP,'' which identifies the FMP's reef fish 
management unit species. Sand perch, dwarf sand perch, queen 
triggerfish, and hogfish are the only four reef fish species that are 
currently considered by the FMP to be species in the fishery but not in 
the management unit. Amendment 16B would include hogfish, dwarf sand 
perch, and sand perch in the FMP's management unit and remove queen 
triggerfish from the FMP and from the regulations implementing the FMP. 
This would allow Florida to regulate vessels registered in the State of 
Florida and fishing for queen triggerfish in the exclusive economic 
zone (EEZ) under Florida's more conservative management measures. 
Although queen triggerfish are found throughout the Gulf of Mexico, 
they are abundant only off Florida and are seldom landed outside 
Florida.

Size and Bag Limits Compatible with Florida's Regulations

    Florida has established bag and size limits on several reef fish 
species for which there are either no corresponding limits in the EEZ 
or the Federal limits differ from the State limits. In response to a 
request from the Florida Marine Fisheries Commission (Commission) that 
the Council consider implementing size and bag limits consistent with 
those in Florida's waters, the Council proposes new consistent bag and 
size limits. In a November 3, 1994, letter, the Commission provided 
biological information that formed the basis for its request of 
Council. Based on the best scientific information available and on the 
precautionary approach to fisheries management, the Council believes 
that there is a need for greater protection for these species. The 
Council concluded that bag and size limits compatible with Florida's 
would be the most effective means of achieving this greater protection 
because compatible regulations would facilitate compliance and 
enforcement. Furthermore, the Council observes that, with the possible 
exception of gray triggerfish, Florida accounts for most of the 
recreational and commercial landings of these species. The Council 
believes that the proposed 12-inch (30.5-cm) minimum size limit for 
gray triggerfish is needed to respond to increasing effort directed 
toward the species and to anecdotal information that the stocks off 
Florida are declining and in need of regulation. The Council's belief 
is based on information provided by the Florida Marine Fisheries 
Commission and by a NMFS' assessment prepared for the South Atlantic 
Fishery Management Council.
    The proposed rule would establish the following minimum size 
limits: Cubera snapper (12 inches (30.5 cm), total length (TL)); dog 
snapper (12 inches (30.5 cm), TL); mahogany snapper (12 inches (30.5 
cm), TL); schoolmaster (12 inches (30.5 cm), TL); mutton snapper (16 
inches (40.6 cm), TL); scamp (16 inches (40.6 cm), TL); gray 
triggerfish (12 inches (30.5 cm), TL); and hogfish (12 inches (30.5 
cm), fork length). In addition, the proposed rule would establish a 5-
fish bag limit for hogfish, exclude hogfish from the 20-fish aggregate 
reef fish bag limit, and clarify that sand perch and dwarf sand perch 
are excluded from the 20-fish aggregate bag limit. Sand perch and dwarf 
sand perch are often used as bait, and no evidence exists to suggest 
their stocks are in need of management.

Speckled Hind and Warsaw Grouper

    The NMFS Office of Protected Resources has added speckled hind and 
warsaw grouper to the list of candidates for possible listing as 
threatened or endangered under the Endangered Species Act. Candidate 
status does not afford any additional protection for a species, but it 
does reflect a significant level of concern regarding a species' 
status. The proposed rule would establish a recreational bag limit of 
one speckled hind and one warsaw grouper per vessel. These new 
restrictions also would prohibit the sale of these species by the 
recreational sector because the FMP and existing regulations prohibit 
the sale of all reef fish subject to bag limits. The commercial harvest 
of warsaw grouper and speckled hind would continue and be limited by 
the deep-water grouper quota. The Council believes that, because warsaw 
grouper and speckled hind are usually caught in relatively deep water, 
the mortality rate of released fish is high; consequently, closure of 
the fishery would provide little additional protection. Furthermore, 
the Council believes that, because commercial vessels do not target 
these species and because the Council's intent is to eliminate targeted 
fishing of these species, additional restrictions on the commercial 
fishery are not needed.
    Additional background and rationale for the measures discussed here 
are contained in Amendment 16B, the availability of which was announced 
in the Federal Register on April 14, 1999 (64 FR 18395). Written 
comments on Amendment 16B are solicited and must be received by June 
14, 1999. Comments that are received by June 14, 1999, whether 
specifically directed to the amendment or the proposed rule, will be 
considered by NMFS in its approval/disapproval decision on Amendment 
16B. Comments received after that date will not be considered in the 
approval/disapproval decision. All comments received on Amendment 16B 
or on this proposed rule during their respective comment periods will 
be addressed in the preamble to the final rule.

[[Page 35983]]

Classification

    At this time, NMFS has not determined that the amendment that this 
proposed rule would implement is consistent with the national standards 
of the Magnuson-Stevens Act and other applicable laws. NMFS, in making 
that determination, will take into account the data, views, and 
comments received during the comment period on Amendment 16B.
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities 
as follows.

    The Gulf of Mexico Fishery Management Council (Council) prepared 
a Regulatory Impact Review (RIR) indicating that the proposed 
actions in Amendment 16B are not significant under E.O. 12866. The 
Council also determined, and NMFS concurs, that the proposed actions 
will not result in a significant impact on a substantial number of 
small entities. From an overall viewpoint, the RIR indicates that 
the measures will result in short-term commercial revenue losses 
that are minor but only partially quantified. The entities that will 
be affected by the proposed regulations consist of about 1,500 
commercial reef fish vessels with permits and about 900 for-hire 
(charterboat and headboat) vessels with permits. All of these firms 
qualify as small business entities according to the Small Business 
Administration definitions. Because of the large number of species 
involved in the proposed regulations, it is clear that over 20 
percent of the small entities engaged in commercial and for-hire 
businesses that have a dependency on the reef fish fishery will be 
impacted to some degree by the regulations in aggregate. However, 
the degree of impact will be small as is shown in the following 
discussion.
    The annual aggregate reef fish gross revenues produced by the 
commercial harvesters is about $45 million. Although there is no 
definitive information available regarding the gross revenues 
generated by the for-hire businesses, an estimate can be obtained by 
assuming that these 900 businesses conduct an average of about 250 
trips per year at an average cost to the customers of about $500 per 
trip. These estimates are considered to be reasonable, and if so, 
the aggregate annual gross revenues for the for-hire businesses 
would exceed $100 million. In any event, the size of gross revenue 
generated by the for-hire businesses is comparable to revenues 
generated by the commercial harvesters.
    It is proposed that a slot size limit of 14 inches minimum and 
22 inches maximum be set for banded rudderfish and lesser amberjack. 
This slot limit would likely reduce the annual level of commercial 
catches because a small portion of the historical catch is known to 
exceed 22 inches. Although the exact amount of the reduction cannot 
be estimated due to a lack of data, it is known that the total 
annual commercial revenue for the two species combined is about 
$62,000. Hence, even if these species were totally excluded from the 
commercial catch, and they will not be, the maximum effect would be 
a reduction in reef fish revenues of about one tenth of one percent.
    The for-hire fishery also lands banded rudderfish and lesser 
amberjack, but data regarding the poundage involved are not 
conclusive. For example, the 1993 data indicate that up to 200,000 
pounds may have been landed by the for-hire sector, but data for 
1995 and 1996 indicate that current landings are less than 10,000 
pounds per year. This may be explainable since the various amberjack 
species are very similar and the early data may include a large 
poundage of misidentified juvenile greater amberjack. Assuming that 
the more recent data are the most reliable because greater efforts 
toward species identification have been made recently, then the 
potential impacts on the for hire fishery are very small. Further, 
available data indicate that most of the for-hire catch currently 
falls within the proposed slot limit. Hence, available information 
indicates only a very small, but not fully quantified, effect on the 
for-hire sector. A 5-fish recreational bag limit is proposed for 
banded rudderfish and lesser amberjack. Recreational catch data 
collected since 1993 indicate that catches of banded rudderfish or 
lesser amberjack have never exceeded 3 fish per trip. Hence, the 
economic impact on the for-hire businesses is expected to be 
negligible.
    The proposal to establish minimum size limits for cubera 
snapper, dog snapper, mahogany snapper, mutton snapper, 
schoolmaster, scamp, gray triggerfish and hogfish are proposed in 
order to bring Federal rules into compliance with size rules 
established by the state of Florida where most of the catch of these 
species occurs. With an exception in the case of scamp, these 
species are rarely caught in Federal waters. The proposed minimum 
size for scamp is 16 inches and because most of the catch of scamp 
in Federal waters consists of fish over 16 inches, the impact is 
expected to be very small. Another proposal will establish a 5-fish 
recreational bag limit for hogfish. The bulk of the recreational 
take of hogfish is by private recreational fishermen using 
spearguns; the for-hire industry accounts for only 1-3 percent of 
the total catch. Further, the catch of hogfish by any individual 
angler on a for-hire trip rarely exceeds five fish. Hence, the 
economic impact is expected to be negligible.
    There is also a provision for a 1-fish bag limit for speckled 
hind and warsaw grouper. These species are thought to be highly 
overfished, and the current recreational catch of these two species 
is very small. The bag limits are proposed just as a precautionary 
measure in the event any particular angler might encounter an 
extraordinary assemblage of either species and the impact, if any, 
will be very small.
    The provision to exclude banded rudderfish, lesser amberjack and 
hogfish from an existing 20-fish bag limit for species not otherwise 
regulated by a bag limit is being done for administrative purposes 
because these species will come under bag limits established by 
other proposals already discussed. Hence, this particular proposal 
has no impact.
    The provision to remove queen triggerfish from the Reef Fish 
Fishery Management Plan is being suggested because the species is 
considered to be an ornamental species that is not normally targeted 
by commercial or recreational fishermen in Federal waters. The 
effect of the proposed regulation is to allow the state of Florida, 
which has jurisdiction for ornamental species, to enforce their 
existing laws with respect to catches that may occur in Federal 
waters. In any event, this species is rarely taken in Federal 
waters, and the expected economic impact is near zero.
    The foregoing discussion establishes that the expected economic 
impacts of the proposed measures is very minor in the individual 
sense and in the aggregate. Hence, it is clear that there will not 
be a significant economic impact on a substantial number of small 
business entities engaged in the commercial harvesting of reef fish 
nor on the for-hire industry entities that depend on reef fish 
species for their livelihood.

    As a result, a regulatory flexibility analysis was not prepared.

List of Subjects in 50 CFR Part 622

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

    Dated: June 28, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 622 is 
proposed to be 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. 622.34, the last sentence in paragraph (g)(1) is revised 
to read as follows:


Sec. 622.34  Gulf EEZ seasonal and/or area closures.

* * * * *
    (g) * * *
    (1) * * * The provisions of this paragraph do not apply to the 
following species: dwarf sand perch, hogfish, and sand perch.
* * * * *
    3. In Sec. 622.37, the section heading, introductory text, and 
paragraph (d) are revised to read as follows:

[[Page 35984]]

Sec. 622.37  Size limits.

    All size limits in this section are minimum size limits unless 
specified otherwise. Except for undersized king and Spanish mackerel 
allowed in paragraphs (c)(2) and (c)(3) of this section, a fish not in 
compliance with its size limit, as specified in this section, in or 
from the Caribbean, Gulf, South Atlantic, and/or Mid-Atlantic EEZ, as 
appropriate, may not be possessed, sold, or purchased. A fish not in 
compliance with its size limit must be released immediately with a 
minimum of harm. The operator of a vessel that fishes in the EEZ is 
responsible for ensuring that fish on board are in compliance with the 
size limits specified in this section.
* * * * *
    (d) Gulf reef fish--(1) Snapper. (i) Lane snapper--8 inches (20.3 
cm), TL.
    (ii) Vermilion snapper--10 inches (25.4 cm), TL.
    (iii) Cubera, dog, gray, mahogany, and yellowtail snappers and 
schoolmaster--12 inches (30.5 cm), TL.
    (iv) Red snapper--15 inches (38.1 cm), TL.
    (v) Mutton snapper--16 inches (40.6 cm), TL.
    (2) Grouper. (i) Scamp--16 inches (40.6 cm), TL.
    (ii) Black, red, and yellowfin groupers and gag--20 inches, (50.8 
cm), TL.
    (3) Other Gulf reef fish species. (i) Gray triggerfish--12 inches 
(30.5 cm), TL.
    (ii) Hogfish--12 inches (30.5 cm), fork length.
    (iii) Banded rudderfish and lesser amberjack--14 inches (35.6 cm), 
fork length (minimum size); 22 inches (55.9 cm), fork length (maximum 
size).
    (iv) Greater amberjack--28 inches (71.1 cm), fork length, for a 
fish taken by a person subject to the bag limit specified in 
Sec. 622.39(b)(1)(i); and 36 inches (91.4 cm), fork length, for a fish 
taken by a person not subject to the bag limit.
* * * * *
    4. In Sec. 622.39, the second and third sentences of paragraph 
(a)(1), and paragraphs (b)(1)(ii), (b)(1)(v), and (b)(2) are revised; 
and paragraphs (b)(1)(vii) and (b)(1)(viii) are added to read as 
follows:


Sec. 622.39  Bag and possession limits.

    (a) * * *
    (1) * * * Unless specified otherwise, bag limits apply to a person 
on a daily basis, regardless of the number of trips in a day. Unless 
specified otherwise, possession limits apply to a person on a trip 
after the first 24 hours of that trip. * * *
* * * * *
    (b) * * *
    (1) * * *
    (ii) Groupers, combined, excluding jewfish and Nassau grouper--5 
per person per day, but not to exceed 1 speckled hind and 1 Warsaw 
grouper per vessel per day.
* * * * *
    (v) Gulf reef fish, combined, excluding those specified in 
paragraphs (b)(1)(i) through (b)(1)(iv) and paragraphs (b)(1)(vi) 
through (b)(1)(viii) of this section and excluding dwarf sand perch and 
sand perch--20.
* * * * *
    (vii) Banded rudderfish and lesser amberjack, combined--5.
    (viii) Hogfish--5.
    (2) Possession limits. A person, or a vessel in the case of 
speckled hind or Warsaw grouper, on a trip that spans more than 24 
hours may possess no more than two daily bag limits, provided such trip 
is on a vessel that is operating as a charter vessel or headboat, the 
vessel has two licensed operators aboard, and each passenger is issued 
and has in possession a receipt issued on behalf of the vessel that 
verifies the length of the trip.
* * * * *

Table 3 of Appendix A to Part 622 [Amended]

    5. In Table 3 of Appendix A to Part 622, the entry, ``Queen 
triggerfish, Balistes vetula'', is removed.
[FR Doc. 99-16916 Filed 7-1-99; 8:45 am]
BILLING CODE 3510-22-F