[Federal Register Volume 65, Number 17 (Wednesday, January 26, 2000)]
[Proposed Rules]
[Pages 4221-4225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-1808]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 000120016-0016-01; I.D. 112299C]
RIN 0648-AM70


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Gag, Red Grouper, and Black 
Grouper Management Measures

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 proposed regulations to implement a regulatory 
amendment prepared by the Gulf of Mexico Fishery Management Council 
(Council) in accordance with framework procedures for adjusting 
management measures of the Fishery Management Plan for the Reef Fish 
Resources of the Gulf of Mexico (FMP). These proposed

[[Page 4222]]

regulations would increase the commercial and recreational minimum size 
limits for gag and black grouper; prohibit the commercial harvest and 
the sale or purchase of gag, black grouper, and red grouper from 
February 15 to March 15 each year; and establish two areas in the 
eastern Gulf of Mexico that would be closed to all fishing (except 
fishing for highly migratory species). The intended effect of these 
proposed regulations is to protect the spawning aggregations for these 
species and to prevent overfishing.

DATES:  Comments must be received no later than 5:00 p.m., eastern 
standard time, on February 10, 2000.

ADDRESSES:  Written 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. Comments also may be sent via fax 
to 727-570-5583. Comments will not be accepted if submitted via e-mail 
or Internet.
    Requests for copies of the regulatory amendment, which includes an 
environmental assessment, a regulatory impact review (RIR), and an 
initial regulatory flexibility analysis (IRFA), and requests for copies 
of minority reports submitted by some Council members should be sent to 
the Gulf of Mexico Fishery Management Council, 3018 U.S. Highway 301 
North, Suite 1000, Tampa, FL 33619-2266; telephone: 813-228-2815; fax: 
813-225-7015; or e-mail: [email protected].

FOR FURTHER INFORMATION CONTACT:  Dr. Roy E. Crabtree, telephone: 727-
570-5305, fax: 727-570-5583, e-mail: [email protected].

SUPPLEMENTARY INFORMATION:  The reef fish fishery in the exclusive 
economic zone (EEZ) of the Gulf of Mexico is managed under the FMP. The 
FMP was prepared by the Council and approved and implemented by NMFS 
under the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 
622.
    The Council has proposed adjusted management measures (regulatory 
amendment) for the Gulf gag and black grouper fisheries for NMFS' 
review, approval, and implementation. These measures were developed and 
submitted to NMFS under the FMP's framework procedure for annual 
adjustments in total allowable catch and related measures (framework 
procedure). This proposed rule would implement the measures contained 
in the Council's regulatory amendment.

Background

    The actions proposed in this regulatory amendment are intended to 
prevent overfishing by reducing the recreational and commercial harvest 
of gag, black grouper, and red grouper, and to evaluate the 
effectiveness of area closures in protecting gag spawning aggregations 
and male gag. The 1998 and 1999 NMFS Reports to Congress on the Status 
of Fisheries of the United States listed gag as approaching an 
overfished condition. The Council included black grouper in the 
regulatory amendment as a precautionary measure and because the 
identification of gag and black grouper is often confused. The Council 
included red grouper in the prohibition-of-sale measure because a 
closed season for gag and black grouper only would result in commercial 
fishermen targeting red grouper, with an incidental bycatch and related 
release mortality of gag and black grouper. Furthermore, the Council 
was concerned that a measure protecting only gag and black grouper 
would shift effort to red grouper and exacerbate problems with that 
stock; a recent NMFS stock assessment suggests that red grouper are 
overfished.
    The proposed rule would (1) increase the recreational minimum size 
limits for gag and black grouper from 20 inches to 22 inches (50.8 cm 
to 55.9 cm) immediately and by 1 inch (2.5 cm) each subsequent year 
(effective dates 1 and 2 years, respectively, after the effective date 
of the final rule) until 24 inches (61.0 cm) is reached; (2) increase 
the commercial minimum size limit for gag and black grouper from 20 
inches to 24 inches (50.8 cm to 61.0 cm); (3) prohibit the sale of gag, 
black grouper, and red grouper harvested from the Gulf EEZ from 
February 15 to March 15; and (4) establish two areas in the eastern 
Gulf (Madison and Swanson sites and Steamboat Lumps) that would be 
closed to all fishing, except fishing for highly migratory species--
tunas, sharks, and billfishes. The Council has requested that NMFS' 
Highly Migratory Species Division (HMS Division), Office of Sustainable 
Fisheries, issue a compatible rule prohibiting fishing for all Atlantic 
highly migratory species in these two areas. The HMS Division is 
currently considering this request and expects to take appropriate 
action soon. The boundaries of the two proposed closed areas (219 
square nautical miles (751 km2) total area) are as follows:

Madison and Swanson Sites

 
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NW corner                                                                29 deg.17' N. lat., 85 deg.50' W. long.
NE corner                                                                29 deg.17' N. lat., 85 deg.38' W. long.
SW corner                                                                29 deg.06' N. lat., 85 deg.50' W. long.
SE corner                                                                29 deg.06' N. lat., 85 deg.38' W. long.
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Steamboat Lumps

 
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NW corner                                                                28 deg.14' N. lat., 84 deg.48' W. long.
NE corner                                                                28 deg.14' N. lat., 84 deg.37' W. long.
SW corner                                                                28 deg.03' N. lat., 84 deg.48' W. long.
SE corner                                                                28 deg.03' N. lat., 84 deg.37' W. long.
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    The proposed minimum size limits recommended by the Council are 
intended to allow some female gag to reach sexual maturity and spawn 
before being subjected to fishing mortality. Most gag mature at ages of 
3 to 4 years

[[Page 4223]]

and a length of about 24 inches (61.0 cm). The regulatory amendment 
suggests that the immediate 22-inch (55.9-cm) recreational size limit 
would reduce recreational landings by as much as 16 percent, and the 
immediate 24-inch (61.0-cm) commercial size limit would reduce 
commercial landings by about 6 percent. The proposal to increase the 
recreational size limit to 24 inches (61.0 cm) 2 years after initial 
implementation of this rule could reduce recreational landings by as 
much as 36 percent compared with the current 20-inch (50.8-cm) size 
limit. It is likely that the reduction in recreational harvest in 
subsequent years will be moderated by the increasing availability of 
larger gag resulting from the previous increases in the minimum size 
limit.
    The no-sale provision from February 15 to March 15 each year is 
expected to reduce the commercial gag and black grouper harvest by 
about 10 percent and the commercial red grouper harvest by about 7 
percent; however, these estimates assume that commercial fishing effort 
will not shift in response to this measure. Comments by the NMFS 
Southeast Fisheries Science Center suggest that shifts in fishing 
effort (i.e., for example increased effort immediately before the 
closure) are likely to reduce the effectiveness of this measure.
    In addition to its goal of reducing the harvest, the Council acted 
out of concern that male gag have been depleted and that action is 
needed to protect them. The best scientific available information 
suggests that the proportion of males in the population has decreased 
dramatically over the past 20 years. The Council heard conflicting 
scientific testimony regarding the need for establishing closed areas 
to protect male gag and considered several options. The Council's 
rationale for the proposed closed areas is to allow research on the 
effects of area closures on gag populations. The areas selected for 
closure are believed to be important spawning areas for gag, which 
spawn in dense aggregations that are particularly vulnerable to 
fishing. The Council believes that a closure of the two areas to only 
gag fishing probably would not have the intended effect because 
continued fishing for other reef fish species would result in a large 
bycatch of gag. Thus, the proposed closure applies to all fishing 
(except fishing for highly migratory species). The closed areas are in 
relatively deep water where the survival rate of discarded bycatch 
species would be low. The closure would extend for 4 years to allow 
NMFS and the Council to evaluate the utility of closed areas for 
grouper management.
    The two closed areas are expected to reduce commercial landings of 
gag by about 2 percent, black grouper by about 1.5 percent, and red 
grouper by about 0.6 percent. If fishing effort shifts from the closed 
area into other areas, the actual reduction in landings would be less. 
The closed areas are expected to have little effect on recreational 
landings.
    The NMFS Southeast Fisheries Science Center expressed the following 
concerns regarding the proposed closed areas: (1) Existing baseline 
data are inadequate to evaluate changes in gag populations that could 
be attributed to the closure; (2) the duration of the closure (4 years) 
is too short to expect measurable benefits and changes resulting from 
the closure; (3) no criteria are proposed with which to judge the 
``success'' or ``failure'' of the closure; and (4) Gulf-wide 
conclusions about the efficacy of closed areas would necessitate an 
experimental design utilizing replicate closed areas and controls. NMFS 
seeks public comment regarding these concerns.
    Council members opposing portions of the regulatory amendment 
submitted three minority reports. One minority report argued that (1) 
the proposed measures are insufficient to prevent overfishing and would 
place a greater share of the burden from the reduction in harvest on 
the recreational sector; (2) the 1-month closure of the commercial 
fishery was too short to be effective; (3) the closure of the two areas 
to all fishing unnecessarily restricts fishing for species other than 
reef fish; and (4) the closure should apply only to reef fish fishing 
and bottom fishing with gear capable of catching reef fish. Two other 
minority reports argued that: (1) the delay in increasing the 
recreational minimum size limit to 24 inches (61.0 cm) is unjustified 
and recommended an immediate increase to 24 inches (61.0 cm); (2) the 
measures in the regulatory amendment are not based upon the best 
available science, specifically referring to comments by a consultant 
hired by the commercial industry; (3) the 1-month closure of the 
commercial fishery only is unfair and that the recreational fishery 
should also be closed; and (4) the regulatory amendment fails to reduce 
bycatch in the recreational fishery. Copies of the minority reports are 
available (see ADDRESSES).

Classification

    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    The Council prepared an initial regulatory flexibility analysis 
(IRFA) that describes the impact this proposed rule, if adopted, would 
have on small entities as required by 5 U.S.C. Sec. 604(a). A summary 
of the IRFA follows.
    The Council determined that 340 commercial vessels and a small, but 
undetermined, number of for-hire vessels historically fishing in the 
EEZ of the Gulf of Mexico would be adversely affected by the action to 
close areas on a year-round basis. The typical commercial vessel 
participating in this fishery uses handline gear, has an average length 
of 38 ft (11.6 m), and generates average annual gross revenues of about 
$50,000. The minimum size limit and the seasonal no-sale provision in 
combination would affect 754 commercial vessels and a substantial, but 
unknown, number of for-hire vessels. Since some vessels will be 
affected by all the actions, the numbers are not additive; to add them 
would result in double counting. Hence, the expectation is that at 
least 754 commercial vessels constituting over 62 percent of the 
commercial fleet and a substantial, but unknown, number of for-hire 
vessels will be affected. All of the businesses supported by these 
vessels are classified as small business entities, and a substantial 
number of small business entities would be affected by the proposed 
actions. The proposed measures would be expected to reduce annual gross 
revenues by more than 5 percent.
    The Council proposed this rule because the gag stock is approaching 
an overfished condition and because the Magnuson-Stevens Act requires 
that the Council take action to prevent overfishing. The proposed 
management measures are intended to prevent fishing mortality from 
exceeding a rate that corresponds to a 20 percent static spawning 
potential ratio, which was the FMP's threshold for defining overfishing 
at the time the regulatory amendment was prepared. The Magnuson-Stevens 
Act, as amended, provides the legal basis for the rule.
    In addition to the actions described in this proposed rule, the 
Council considered and rejected the following gag management 
alternatives: (1) Set a total allowable catch; (2) allocate a total 
allowable catch between recreational and commercial users; (3) set a 
separate bag limit; and (4) set a commercial trip limit. The Council 
rejected these alternatives in order to minimize adverse impacts on 
small business entities and because overfishing of gag and black 
grouper stocks could be prevented by the selected alternatives. A 
discussion of the alternatives considered by the Council follows.
    The proposed alternative for the gag and black grouper minimum size 
limit

[[Page 4224]]

is an immediate increase in the commercial size limit from 20 to 24 
inches (50.8 cm to 61.0 cm) and an immediate increase in the 
recreational minimum size limit from 20 to 22 inches (50.8 cm to 55.9 
cm) followed by 1-inch (2.54-cm) increases for each of the next 2 
years, at which time the recreational and commercial minimum size 
limits will be identical--24 inches (61.0 cm). The Council considered 
and rejected four alternatives to change the size limits for gag and 
black grouper, including the status quo 20-inch (50.8-cm) minimum size 
limit. The Council rejected the status quo size limit because the 
reduction in fishing mortality would not be sufficient to prevent 
overfishing. The other rejected alternatives would have increased the 
minimum size limit from 20 inches (50.8 cm) to 24 inches (61.0 cm), but 
the schedule of the increase varied. The short-term adverse economic 
impact of the size limit increase was greatest with an immediate 
increase to 24 inches (61.0 cm) and least with an increase of one 1 
inch (2.54-cm) every 2 years. However, postponement of the size-limit 
increase will also delay fishing-mortality reductions, which are needed 
to prevent overfishing. The proposed alternative would provide an 
immediate and substantial reduction in fishing mortality while 
minimizing adverse economic impacts. The number of for-hire businesses 
expected to be affected by the size limits is unknown; these businesses 
tend to employ traditional charter fishing boats with offshore 
capability.
    The Council considered and rejected three alternatives, including 
the status quo, to the proposed February 15 to March 15 prohibition of 
sale of gag, black grouper, and red grouper. The Council rejected the 
status quo because it would not reduce overfishing. Two other rejected 
alternatives would have prohibited sale of these species for longer 
periods (2 or 4 months) and would have resulted in greater adverse 
economic impacts. The Council rejected these alternatives based on its 
belief that the proposed alternative, combined with the other proposed 
measures, would reduce fishing mortality sufficiently to prevent 
overfishing while minimizing the short-term negative impacts on small 
entities.
    The Council considered several alternatives for the gag area 
closure, including proposals to close specific areas to commercial and 
recreational fishing during part or all of a 4-year period. The 
proposed alternative would prohibit recreational and commercial fishing 
for all species under the Council's FMPs for a 4-year period in two 
specific areas of the eastern Gulf where gag are known to be present. 
The Council requested that NMFS issue a compatible rule prohibiting 
fishing for highly migratory species in these two areas and 
establishing a marine reserve that would expire in 4 years unless, 
based on the effectiveness of this measure in protecting spawning 
aggregations and male gag, the Council and NMFS extended the measure. 
The Council considered and rejected four alternatives, including the 
status quo. Depending upon the size of the alternative reserve and the 
extent of fishing activity in that area, some of the rejected 
alternatives would have had more severe impacts on fishermen, and some 
would have had less severe impacts than the proposed alternative. 
Larger areas with extensive fishing activity would have greater adverse 
economic impacts but provide greater protection to spawning 
aggregations and male gag. To help mitigate the unavoidable negative 
economic impacts associated with the preferred alternative, the Council 
established the 4-year expiration date to ensure that the negative 
impacts would not continue if the objectives associated with the area 
closure were not being accomplished. The areas chosen for closure would 
provide the best cases for scientific study, would help prevent 
overfishing and protect spawning aggregations during the 4-year period 
while minimizing adverse impacts relative to some of the rejected 
alternatives.
    No additional reporting, record keeping, or other compliance costs 
were identified. No duplicative, overlapping, or conflicting Federal 
rules were identified.
    A copy of the IRFA is available from the Council (see ADDRESSES).

List of Subjects in 5 0 CFR Part 622

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

    Dated: January 20, 2000.
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, add paragraph (k), reserved by the November 2, 
1999, publication (64 FR 59125) and add paragraph (o) to read as 
follows:


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

* * * * *
    (k) Closure of the Madison and Swanson sites and Steamboat Lumps. 
No person may fish within the Madison and Swanson sites or Steamboat 
Lumps for any species of fish except highly migratory species. This 
prohibition is effective through [the date 4 years after the effective 
date of the final rule that implements this paragraph]. For the purpose 
of this paragraph (k), fish means finfish, mollusks, crustaceans, and 
all other forms of marine animal and plant life other than marine 
mammals and birds. Highly migratory species means tuna species, marlin 
(Tetrapturus spp. and Makaira spp.), oceanic sharks, sailfishes 
(Istiophorus spp.), and swordfish (Xiphias gladius). The Madison and 
Swanson sites are bounded by rhumb lines connecting, in order, the 
following points:

 
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Point                                                             North lat.                          West long.
A                                                                 29 deg.17'                          85 deg.50'
B                                                                 29 deg.17'                          85 deg.38'
C                                                                 29 deg.06'                          85 deg.38'
D                                                                 29 deg.06'                          85 deg.50'
A                                                                 29 deg.17'                          85 deg.50'
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[[Page 4225]]

    Steamboat Lumps is bounded by rhumb lines connecting, in order, the 
following points:

 
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Point                                                             North lat.                          West long.
A                                                                 28 deg.14'                          84 deg.48'
B                                                                 28 deg.14'                          84 deg.37'
C                                                                 28 deg.03'                          84 deg.37'
D                                                                 28 deg.03'                          84 deg.48'
A                                                                 28 deg.14'                          84 deg.48'
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* * * * *
    (o) Seasonal closure of the commercial fishery for gag, red 
grouper, and black grouper. From February 15 to March 15, each year, no 
person aboard a vessel for which a valid Federal commercial permit for 
Gulf reef fish has been issued may possess gag, red grouper, or black 
grouper in the Gulf, regardless of the area harvested. However, a 
person aboard a vessel for which the permit indicates both charter 
vessel/headboat for Gulf reef fish and commercial Gulf reef fish may 
continue to retain gag, red grouper, and black grouper under the bag 
and possession limit specified in Sec. 622.39(b), provided the vessel 
is operating as a charter vessel or headboat. From February 15 until 
March 15, each year, the sale or purchase of gag, red grouper, or black 
grouper is prohibited as specified in Sec. 622.45(c)(4).
    3. In Sec. 622.37, paragraph (d)(2)(ii) is revised and paragraph 
(d)(2)(iii) is added to read as follows:


Sec. 622.37  Size limits.

* * * * *
    (d) * * *
    (2) * * *
    (ii) Red grouper and yellowfin grouper--20 inches (50.8 cm), TL.
    (iii) Black grouper and gag--(A) For a person not subject to the 
bag limit specified in Sec. 622.39(b)(1)(ii)--24 inches (61.0 cm), TL.
    (B) For a person subject to the bag limit specified in 
Sec. 622.39(b)(1)(ii)--(1) Effective [30 days after the date of 
publication of the final rule implementing paragraph (d)(2)(iii)(B)(1) 
of this section] to [the date 1 year after the effective date of the 
final rule]--22 inches (55.9 cm), TL.
    (2) Effective from [the date 1 year after the effective date of the 
final rule implementing paragraph (d)(2)(iii)(B)(1) of this section] to 
[the date 2 years after that effective date]--23 inches (58.4 cm), TL.
    (3) Effective on and after [the date 2 years after the effective 
date of the final rule implementing paragraph (d)(2)(iii)(B)(1) of this 
section]--24 inches (61.0 cm), TL.
* * * * *
    4. In Sec. 622.45, paragraph (c)(4) is added to read as follows:


Sec. 622.45  Restrictions on sale/purchase.

* * * * *
    (c) * * *
    (4) From February 15 until March 15, each year, no person may sell 
or purchase a gag, black grouper, or red grouper harvested from the 
Gulf EEZ. This prohibition on sale/purchase does not apply to gag, 
black grouper, or red grouper that were harvested, landed ashore, and 
sold prior to February 15 and were held in cold storage by a dealer or 
processor.
* * * * *
[FR Doc. 00-1808 Filed 1-21-00; 3:56 pm]
BILLING CODE 3510-22-F