[Federal Register Volume 64, Number 211 (Tuesday, November 2, 1999)] [Rules and Regulations] [Pages 59126-59129] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 99-28478] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 622 and 640 [Docket No. 990506122-9284-02; I.D.020899A] RIN 0648-AL42 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Fishery Management Plans of the South Atlantic Region (FMPs); Addition to Framework Provisions AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: NMFS issues this final rule to implement that portion of the Comprehensive Amendment Addressing Sustainable Fishery Act Definitions and Other Required Provisions in Fishery Management Plans of the South Atlantic Region (Comprehensive Amendment) that modifies the framework procedures in the South Atlantic Fishery Management Council's FMPs to allow the addition of biomass levels and age-structured analyses to these FMPs. The intended effect is to provide a more timely mechanism for incorporating biomass levels and age-structured analyses into the FMPs when such information becomes available. DATES: This final rule is effective December 2, 1999. FOR FURTHER INFORMATION CONTACT: Roy Crabtree, 727-570-5305. SUPPLEMENTARY INFORMATION: The Comprehensive Amendment addresses fisheries under the FMPs. The FMPs were prepared by the South Atlantic Fishery Management Council (Council), except for the coastal migratory pelagics and spiny lobster fishery management plans that were prepared jointly by the South Atlantic and Gulf of Mexico Fishery Management Councils. NMFS approved all of these FMPs and, except the FMP for spiny lobster, implemented them under the authority of the Magnuson-Stevens Fishery Conservation and Management Act [[Page 59127]] (Magnuson-Stevens Act) by regulations at 50 CFR part 622. The Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic is implemented by regulations at 50 CFR part 640. On February 18, 1999, NMFS announced the availability of the Comprehensive Amendment and requested comments on it (64 FR 8052). After considering the comments received, NMFS only partially approved the Comprehensive Amendment on May 18, 1999. NMFS disapproved the rebuilding schedules for all grouper species, red snapper, and red drum. These rebuilding schedules exceed 10 years and NMFS advised the Council that the rebuilding schedules must be estimated and explained in a more explicit manner consistent with the national standard guidelines. NMFS partially approved the stock status determination criteria because they are incomplete and, thus, do not totally fulfill the relevant requirements of the Magnuson-Stevens Act and the national standard guidelines. The Council must provide biomass-based estimates of maximum sustainable yield (MSY) and minimum stock size threshold for each stock in addition to the fishing mortality-based proxies provided in the Comprehensive Amendment. On May 24, 1999, NMFS published a proposed rule to implement those approved Comprehensive Amendment measures requiring rulemaking and requested comments on the rule (64 FR 27952). The background and rationale for the measures in the Comprehensive Amendment and proposed rule are contained in the preamble to the proposed rule and are not repeated here. Comments and Responses NMFS received nine written comments during the public comment period on the Comprehensive Amendment and proposed rule. A summary of the comments and NMFS' responses follow. Comment 1: One commenter commented that the environmental assessment (EA) included in the amendment is inadequate and that an environmental impact statement (EIS) is required. The commenter stated that the National Environmental Policy Act requires NMFS and the Council to provide an EIS and recommended that NMFS disapprove the Council's EA and require a supplemental EIS. Response: NMFS disagrees and concurs with the Council's statement that because the action will not have a significant effect on the human environment an EIS is not required. The amendment authorizes no specific regulatory actions that would affect fish stocks or the environment. The need for an EIS will be evaluated as regulatory measures are implemented to achieve the goals of the Comprehensive Amendment. Comment 2: Two commenters commented that the rebuilding plans for overfished species in the Comprehensive Amendment do not comply with the requirements of the Magnuson-Stevens Act. Both also commented that the Council's actions to end overfishing in the snapper-grouper fishery are inadequate. Response: NMFS concurs that the rebuilding schedules proposed in the Comprehensive Amendment are incomplete and do not fully comply with the requirements of the Magnuson-Stevens Act. NMFS disapproved the rebuilding schedules for all grouper species, red snapper, and red drum and is committed to working with the Council to provide the additional information necessary to bring all stock rebuilding schedules into compliance with the requirements of the Magnuson-Stevens Act. NMFS believes that the resource conservation measures in Amendment 9 to the FMP for the Snapper-Grouper Fishery off the Southern Atlantic States that it approved and implemented in 1999 (64 FR 3624; January 25, 1999) are precautionary and will sufficiently reduce fishing mortality to initiate the recovery of overfished stocks and to prevent overfishing of others. As new stock assessments are completed for snapper-grouper species, the Council and NMFS will evaluate the need for additional measures to prevent overfishing. For example, the recent red porgy assessment indicated that the measures contained in Amendment 9 were insufficient to prevent overfishing of this stock. Consequently, the Council requested and NMFS agreed to issue an emergency rule to prohibit the harvest of red porgy (September 3, 1999; 64 FR 48324). The Council is currently developing longer term red porgy conservation measures. Comment 3: Three commenters objected to the provisions of the Comprehensive Amendment regarding the reporting and minimization of bycatch. All commented that additional bycatch reporting is needed to quantify bycatch and that additional measures were required to reduce bycatch. Response: NMFS believes that the Council has taken actions to reduce bycatch to the maximum extent practicable. Furthermore, the Council is exploring additional approaches, such as marine reserves, to address problems in the snapper-grouper fishery where the release mortality of regulatory discards is high. The Council is also reviewing the rock shrimp fishery to determine if additional measures are required to reduce bycatch. NMFS believes that the improved reporting requirements specified in the Atlantic Coastal Cooperative Statistics Program and NMFS' plans to incorporate a bycatch reporting requirement in all mandatory logbooks currently in use (expected by January 1, 2001) will significantly improve bycatch reporting and will fulfill the requirements of the Magnuson-Stevens Act. NMFS and the Council recognize that as additional bycatch information becomes available through improved bycatch reporting measures, additional action may be needed to further reduce bycatch. Comment 4: Three commenters commented that the Comprehensive Amendment fails to adequately discuss the fair and equitable allocation of fishery resources among various sectors of the fishery. In particular, these groups objected to the sale of fish caught under the recreational bag limit. Response: The Comprehensive Amendment addresses bycatch, overfishing definitions, and rebuilding schedules; however, the amendment proposes no regulatory actions that directly affect allocations. Therefore, the issue of fair and equitable allocations and the sale of fish caught under the recreational bag limit are issues outside the scope of this amendment. Comment 5: Three commenters commented that the Council's actions to reduce bycatch in the recreational sector are inadequate and do not meet the Magnuson-Stevens Act requirement to reduce bycatch. Response: NMFS disagrees. The Council and NMFS believe that the mortality rate of regulatory discards in shallow-water fisheries such as red drum, and in surface-water pelagic fisheries such as king mackerel, is low and has been minimized to the maximum extent practicable. NMFS and the Council recognize that the mortality rates of deep-water snapper-grouper species may be high and that additional steps may be required to reduce bycatch in that fishery. In the Comprehensive Amendment, the Council states its intent to continue to explore new methods to manage the snapper-grouper fishery and reduce bycatch. For example, the Council has previously established an experimental closed area (i.e., Oculina Bank habitat area of particular concern) to study the benefits of marine reserves and is currently examining the potential for using such marine reserves as a management tool for the snapper-grouper fishery. NMFS [[Page 59128]] stock assessments take into account the number and size of fish released by the recreational sector and the mortality rate of these fish. This source of mortality is considered in the allocation of fishery resources among sectors. Comment 6: One commenter stated that closures of fisheries are not necessary and that pollution is the major factor reducing populations of marine fishes. Another commenter expressed concerns that the effects of pollution and natural variations on marine stocks were not discussed in the amendment. Response: NMFS agrees that pollution is a significant problem adversely affecting many species of marine fish. NMFS also recognizes that significant natural fluctuations occur in marine fish stocks even in the absence of a fishery. However, NMFS is required by the Magnuson- Stevens Act to take steps to prevent overfishing and rebuild overfished stocks. To meet this requirement, reductions in catch and closures of some fisheries are justified and necessary. The existence of pollution or natural variations in stocks does not alter the need to control fishing mortality. Comment 7: Two commenters commented that the Comprehensive Amendment fails to account for the effect of fishing regulations on fishing communities. Response: The Comprehensive Amendment identifies and describes fishing communities using the best available data and also describes additional data needed to better evaluate the effect of future regulatory actions on fishing communities. As future regulatory actions are proposed by the Council under its FMPs, the Council and NMFS will consider the anticipated effects on fishing communities as required by section 303(a)(9) of the Magnuson-Stevens Act. Comment 8: One commenter commented that specifying MSY and the maximum fishing mortality threshold (MFMT) at the same level is not precautionary. They recommend that NMFS disapprove the MFMT specifications. Response: NMFS disagrees. The Technical Guidelines state that the MFMT must not exceed the fishing mortality rate associated with MSY but allows the rate to be set equal to that at MSY. Classification The Regional Administrator, Southeast Region, NMFS, with the concurrence of the Assistant Administrator for Fisheries, NOAA, determined that the approved measures of the Comprehensive Amendment are necessary for the conservation and management of the fisheries off the southern Atlantic states and that, with the exception of the provisions that were disapproved, the Comprehensive Amendment is consistent with the Magnuson-Stevens Act and other applicable law. This final rule has been determined to be not significant for purposes of E.O. 12866. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not prepared. List of Subjects 50 CFR Part 622 Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands. 50 CFR Part 640 Fisheries, Fishing, Incorporation by reference, Reporting and recordkeeping requirements. Dated: October 26, 1999. Andrew A. Rosenberg, Deputy Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR parts 622 and 640 are 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. 622.48, the introductory text and paragraphs (c), (f), (g), and (h) are revised to read as follows: Sec. 622.48 Adjustment of management measures. In accordance with the framework procedures of the applicable FMPs, the RD may establish or modify the following items: * * * * * (c) Coastal migratory pelagic fish. For cobia or for a migratory group of king or Spanish mackerel: Biomass levels, age-structured analyses, MSY, overfishing level, TAC, quota (including a quota of zero), bag limit (including a bag limit of zero), minimum size limit, vessel trip limits, closed seasons or areas, gear restrictions (ranging from regulation to complete prohibition), reallocation of the commercial/recreational allocation of Atlantic group Spanish mackerel, and permit requirements. * * * * * (f) South Atlantic snapper-grouper and wreckfish. For species or species groups: Biomass levels, age-structured analyses, target dates for rebuilding overfished species, MSY, ABC, TAC, quotas, trip limits, bag limits, minimum sizes, gear restrictions (ranging from regulation to complete prohibition), and seasonal or area closures. (g) South Atlantic golden crab. Biomass levels, age-structured analyses, MSY, ABC, TAC, quotas (including quotas equal to zero), trip limits, minimum sizes, gear regulations and restrictions, permit requirements, seasonal or area closures, time frame for recovery of golden crab if overfished, fishing year (adjustment not to exceed 2 months), observer requirements, and authority for the RD to close the fishery when a quota is reached or is projected to be reached. (h) South Atlantic shrimp. Biomass levels, age-structured analyses, BRD certification criteria, BRD specifications, BRD testing protocol, certified BRDs, nets required to use BRDs, and times and locations when the use of BRDs is required. * * * * * PART 640--SPINY LOBSTER FISHERY OF THE GULF OF MEXICO AND SOUTH ATLANTIC 3. The authority citation for part 640 continues to read as follows: Authority: 16 U.S.C. 1801 et seq. 4. A new Sec. 640.25 is added to subpart B to read as follows: Sec. 640.25 Adjustment of management measures. In accordance with the framework procedure of the Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic, the RD may establish or modify the following items: Biomass levels, age-structured analyses, limits on the number of traps fished by each vessel, construction characteristics of traps, specification of gear and vessel identification requirements, specification of allowable or prohibited gear in a directed fishery, specification of bycatch levels in non-directed fisheries, changes to soak or removal periods and requirements for traps, recreational bag and possession limits, changes in fishing seasons, limitations on use, possession, and handling of [[Page 59129]] undersized lobsters, and changes in minimum size. [FR Doc. 99-28478 Filed 11-1-99; 8:45 am] BILLING CODE 3510-22-F