[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]


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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.

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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

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(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

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undersized lobsters, and changes in minimum size.
[FR Doc. 99-28478 Filed 11-1-99; 8:45 am]
BILLING CODE 3510-22-F