[Federal Register Volume 69, Number 2 (Monday, January 5, 2004)]
[Proposed Rules]
[Pages 310-314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-89]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 031217320-3320-01; I.D. 112403D]
RIN 0648-AR66


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Extension of Marine Reserves

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS issues proposed regulations to implement Amendment 21 to 
the Fishery Management Plan (FMP) for the Reef Fish Resources of the 
Gulf of Mexico (Amendment 21) prepared by the Gulf of Mexico Fishery 
Management Council (Council). These proposed regulations would modify 
the fishing restrictions that apply within the Madison and Swanson 
sites and Steamboat Lumps marine reserves in the eastern Gulf of Mexico 
and would extend the period of effectiveness of those restrictions 
through June 16, 2010. The intended effect of these proposed 
regulations is to protect the spawning aggregations of species within 
these areas, prevent overfishing, and aid in the evaluation of the 
effectiveness of marine reserves as a management tool.

DATES: Comments on the proposed rule must be received no later than 5 
p.m., eastern time, on February 19, 2004.

ADDRESSES: Written comments on the proposed rule must be sent to Phil 
Steele, 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.
    Copies of Amendment 21, which includes a regulatory impact review 
(RIR), Regulatory Flexibility Analyses, and an environmental assessment 
(EA), and a copy of a minority report filed by three Council members 
opposing provisions in the amendment that allow seasonal surface 
trolling within the reserves, may be obtained from the Gulf of Mexico 
Fishery Management Council, The Commons at Rivergate, 3018 U.S. Highway 
301 North, Suite 1000, Tampa, FL 33619-2266; telephone: 813-228-2815; 
fax: 813-225-7015; e-mail: [email protected]. Copies of

[[Page 311]]

Amendment 21 can also be downloaded from the Council's website at 
www.gulfcouncil.org.
    Copies of a supplement to the RIR and EA, and copies of a 
supplementary RIR and Regulatory Flexibility Analysis, may be obtained 
from Phil Steele, Southeast Regional Office, NMFS, 9721 Executive 
Center Drive N., St. Petersburg, FL 33702; telephone: 727-570-5305, 
fax: 727-570-5583, e-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Phil Steele, 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 is implemented under the authority 
of the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act) by regulations at 50 CFR part 622.

Background

    The Madison and Swanson sites and Steamboat Lumps are located in 
the eastern Gulf of Mexico and encompass a total area of approximately 
219 square nautical miles (751 km2). The boundaries of the two areas 
are:

                                            Madison and Swanson sites
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.
----------------------------------------------------------------------------------------------------------------


                                                 Steamboat Lumps
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.
SW corner                                                                                   28[deg]03' N. lat.,
                                                                                            84[deg]37' W. long.
----------------------------------------------------------------------------------------------------------------

    These two areas include important reef fish habitat in the dominant 
region where gag spawning aggregations are known to occur. These areas 
were originally established as marine reserves in June 2000 as part of 
a regulatory amendment intended to address concerns about overfishing 
of the gag stock, a substantial decline in the proportion of male gag 
in the gag population, and the need to evaluate the effectiveness of 
marine reserves as a management tool. The final rule implementing the 
regulatory amendment (65 FR 31827, May 19, 2000) prohibited all 
fishing, except fishing for highly migratory pelagic species 
(HMS)(billfish, sharks, swordfish and tunas other than blackfin tuna), 
within the Madison and Swanson sites and Steamboat Lumps for a 4-year 
period ending June 16, 2004.

Provisions of This Proposed Rule

    This proposed rule would modify the fishing restrictions that apply 
within the Madison and Swanson sites and Steamboat Lumps marine 
reserves and would extend the period of effectiveness of those 
restrictions through June 16, 2010. Specifically, within these marine 
reserves, this proposed rule would: (1) prohibit the possession of Gulf 
reef fish year-round, except for possession aboard a vessel in transit 
with fishing gear appropriately stowed; (2) during November through 
April, prohibit all fishing and possession of any fish species, with 
exceptions for HMS species and for fish possessed aboard a vessel in 
transit with fishing gear appropriately stowed; and (3) during May 
through October, restrict fishing activity to surface trolling only.
    For the purpose of these provisions, ``transit'' would mean non-
stop progression through the area; ``fishing gear appropriately 
stowed'' would mean -
    (A) A longline may be left on the drum if all gangions and hooks 
are disconnected and stowed below deck. Hooks cannot be baited. All 
buoys must be disconnected from the gear; however, buoys may remain on 
deck.
    (B) A trawl net may remain on deck, but trawl doors must be 
disconnected from the trawl gear and must be secured.
    (C) A gillnet must be left on the drum. Any additional gillnets not 
attached to the drum must be stowed below deck.
    (D) A rod and reel must be removed from the rod holder and stowed 
securely on or below deck. Terminal gear (i.e., hook, leader, sinker, 
flasher, or bait) must be disconnected and stowed separately from the 
rod and reel. Sinkers must be disconnected from the down rigger and 
stowed separately.
    For the purpose of these provisions, ``surface trolling'' would 
mean fishing with lines trailing behind a vessel which is in constant 
motion at speeds in excess of four knots with a visible wake. Such 
trolling may not involve the use of down riggers, wire lines, planers, 
or similar devices.
    In structuring these modified provisions, the Council and NMFS 
carefully considered concerns expressed by members of the public and 
others regarding both the need to limit restrictions on fishing 
activities to those essential for protecting gag and other reef fish 
species and the need to avoid measures that would unduly compromise 
adequate enforcement. The resulting provisions represent a reasoned 
balance between those somewhat conflicting objectives. If Amendment 21 
is approved and implemented, the Council and NMFS would monitor the 
effectiveness of these measures with respect to achievement of the 
purposes of the marine reserves as well as adequate enforceability. Any 
necessary adjustments could be made through a timely regulatory 
framework procedure that would involve additional rulemaking and 
opportunity for public comment.

Request for Complementary Restrictions for Highly Migratory Species 
(HMS)

    The Council has requested that NMFS' HMS Division implement 
restrictions regarding HMS that would complement the restrictions in 
this proposed rule. Specifically, the Council requested that fishing 
for HMS be prohibited within the Madison and Swanson sites and 
Steamboat Lumps marine reserves, except for surface trolling during May 
through October. If NMFS concurs, such restrictions would be 
implemented through separate rulemaking, including the opportunity for 
public comment. If Amendment 21 is approved and NMFS implements the 
requested HMS restrictions, 50 CFR 622.34(k) would be revised 
accordingly

[[Page 312]]

and would include a cross reference to the applicable HMS restrictions 
in 50 CFR part 635.

Minority Report

    A minority report, signed by three Council members, opposed the 
provision of Amendment 21 that would allow surface trolling during May 
through October. Their objections included concerns that the measure 
was unenforceable and inconsistent with NMFS' policy to move toward 
ecosystem management; involved procedural irregularities at the July 
Council meeting; and would create a privileged class of fishermen 
(surface trollers) and, thus, was unfair to others. Copies of the 
minority report are available (see ADDRESSES).

Classification

    At this time, NMFS has not determined that Amendment 21, which this 
proposed rule would implement, is consistent with the national 
standards of the Magnuson-Stevens Act and other applicable laws. In 
making that determination, NMFS will take into account the data, views, 
and comments received during the comment period on Amendment 21 and 
this proposed rule.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an IRFA, based on the RIR, for this proposed rule. A 
summary of the IRFA follows.
    The Magnuson-Stevens Fisheries Conservation and Management Act 
provides the statutory basis for the proposed rule. The proposed rule 
would extend the designation of the Madison and Swanson sites and 
Steamboat Lumps as marine reserves for another six years from the 
current sunset date of June 16, 2004. As an integral part of such 
designation, within the designated areas, the proposed rule would: 
prohibit possession of Gulf reef fish, except for possession aboard a 
vessel in transit with fishing gear appropriately stowed; during 
November through April, prohibit fishing for and possession of any fish 
species with exceptions for highly migratory species and for possession 
of fish aboard a vessel in transit with gear appropriately stowed; 
during May through October, allow only surface trolling; and require 
vessels transiting the marine reserves in possession of fish, subject 
to an exemption, to comply with gear stowage requirements.
    The objectives of the proposed rule are to provide continued 
protection to spawning aggregations for gag, male gag, and other 
species within the reserves. A subsidiary objective of the proposed 
rule is to allow additional time for research to be conducted on the 
effectiveness of the two marine reserves as a fishery management tool. 
The Council believes that the achievement of these objectives can be 
best accomplished through an extension of the marine reserve 
designation for another six years.
    The proposed rule would not impose any changes in record-keeping 
for affected entities. Compliance requirements would change slightly by 
allowing the use of troll gear within the reserves and allowing vessels 
to transit the reserves. These changes would mitigate revenue losses 
from fishing restrictions within the reserves and reduce travel costs 
for vessels passing through the reserves.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified. However, fishing restrictions within the reserves may pose 
coordination problems with respect to fishing provisions affecting 
highly migratory species.
    This proposed rule would impact both the commercial and 
recreational participants that traditionally harvested fish, provided 
recreational trips to the two areas, received fish harvested in the two 
areas, or would be expected to do so upon sunset of the current 
designation.
    The specific fishing activities that historically occurred within 
the two marine reserves are unknown, but some characteristics of 
fishing activities can be inferred from fishing activities conducted in 
Statistical Areas 6 and 8, where the marine reserves are located. This 
approach likely overestimates the impacts of the proposed rule because 
participants would have adjusted their fishing patterns, but 
adjustments in the estimation procedures incorporating consideration of 
water depth have been introduced to partially address this problem.
    Of the 1,338 boats that reported in their logbooks to have landed 
fish in the Gulf of Mexico, 356 boats harvested fish in Statistical 
Areas 6 or 8. These 356 boats include 59 vessels that harvest reef fish 
using fish traps. These trap vessels are not believed to have 
historically operated in the marine reserve areas since they generally 
operate in shallower waters. Of the 431 dealers that received fish from 
various vessels in the Gulf of Mexico, 87 dealers received fish that 
were harvested in Statistical Areas 6 or 8. There are 1,515 for-hire 
vessels with Gulf reef fish or coastal migratory pelagics permits. It 
cannot be determined, however, how many of these vessels actually 
fished in Statistical Areas 6 or 8. The rule is, thus, expected to 
directly affect 356 commercial fishing vessels, 87 fish dealers/
processors, and an unknown number of for-hire vessels.
    According to a survey of commercial fishing vessels, average gross 
receipts of vessels in the eastern Gulf (those that likely fished in 
Statistical Areas 6 or 8) ranged from $24,588 for low-volume vertical 
line vessels to $116,989 for high-volume longline vessels. Also, 
according to a survey of reef fish processors in the Southeast, 
employment by reef fish processors totaled 700 individuals, both part 
and full time. Given this number and the likelihood that fish dealers 
are generally of smaller size than processors, employment by any of the 
affected dealers is very likely to be less than 500 individuals. 
Furthermore, according to a survey of for-hire vessels in Florida, 
average gross receipts for charterboats totaled $68,000 while that for 
headboats totaled $324,000. A fishing business is considered a small 
entity if it is independently owned and operated and not dominant in 
its field of operation, and if it has annual receipts not in excess of 
$3.5 million in the case of commercial harvesting entities or $6 
million in the case of for-hire entities, or if it has fewer than 500 
employees in the case of fish processors, or fewer than 100 employees 
in the case of fish dealers. Given these data on earnings and 
employment, all of the business entities directly affected by the rule 
are determined to be small business entities.
    Assuming alternative sources of revenue have not been located 
during the current closure, the proposed rule is expected to continue 
to reduce total gross revenues of commercial fishing vessels by 
$352,000 annually based on pre-closure fishing information. This 
represents approximately 1 percent to 4 percent of gross revenues if 
equally divided among the 356 affected vessels, or 2 percent to 5 
percent if the 59 trap vessels are excluded from the universe of 
affected vessels. The revenue and profit profile for dealers is not 
known. The projected reduction in ex-vessel sales ($352,000) as a 
result of the proposed rule equals approximately 11 percent of total 
shallow-water grouper revenues generated from harvests in Statistical 
Areas 6 and 8. It is unlikely, however, that any dealer with 
substantial business operations would be wholly dependent upon harvests 
from just these areas. Although there is some information on the 
revenues of for-hire vessels, information on for-hire vessel profits is 
unavailable, and the extent of for-hire vessel participation within the 
marine reserves is unknown.

[[Page 313]]

It is, therefore, not possible to provide even a general estimate of 
the impacts of the two marine reserves on the revenues and profits of 
for-hire vessels.
    A general characteristic of economic impacts of the proposed rule 
shared by all affected small entities is that under the proposed rule 
they would likely shoulder lower costs than under current fishing 
restrictions because the proposed rule would allow surface trolling 
within the two reserves for the months of May through October and would 
allow commercial and recreational vessels to transit the reserves.
    Seven alternatives were considered for the continuation of the two 
marine reserves. The alternatives differ mainly on the sunset date of 
the marine reserve designation, with four alternatives identifying a 
specific sunset date and three alternatives establishing an indefinite 
sunset date. For any given set of fishing restrictions accompanying the 
continuation of the marine reserve designation, forgone revenues and 
profits are greatest with the longest time horizon. It is not possible 
to determine the relative impacts of the alternatives that specify an 
indeterminate duration. With respect to those alternatives that have 
specific time durations, two alternatives provide shorter time horizons 
and two provide longer time horizons than the proposed alternative. 
Costs to small entities would be reduced under the no-extension or 4-
year extension alternatives, whereas costs would increase under the 
longer extensions. The shorter extensions, however, would not provide 
sufficient time to assess the effects of the two marine reserves as a 
management tool and would not, therefore, achieve the Council's 
objectives.
    There are six alternatives to the proposed alternative that would 
establish harvest restrictions in the reserves. In terms of impacts on 
revenues of small entities, these alternatives may be grouped into two 
groups, with the proposed alternative falling approximately in the 
middle of the two groups with regards to fishing restrictions. The 
proposed alternative provides for a middle-of-the-road approach with 
respect to trolling by allowing this gear to be used within the 
reserves for six months of the year. Four alternatives are more 
restrictive than the proposed alternative and would not reduce the 
adverse impacts. Two alternatives are less restrictive than the 
proposed alternative and would allow trolling year-round. These 
alternatives would reduce the negative impacts on small entities but 
would possibly interfere with the Council's goal of protecting spawning 
aggregations of gag during key spawning months. Prohibition of all 
trolling, however, was determined to be excessive. The proposed 
alternative, therefore, is expected to best achieve the Council's 
objectives at the lowest possible cost.
    There are two alternatives to the proposed alternative on seasonal 
duration of the proposed fishing restrictions. These two alternatives 
would limit the applicability of fishing restrictions. Limiting the 
seasonal duration of the fishing restrictions would reduce the negative 
effects of the fishing restrictions within the reserves. However, 
reducing the seasonal duration of the fishing restrictions reduces the 
protection of the stocks and, therefore, would not achieve the 
Council's objectives.
    Copies of the RIR and IRFA are available (see ADDRESSES).

List of Subjects in 50 CFR Part 622

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

    Dated: December 29, 2003.
John Oliver,
Deputy Assistant Administrator for Operations, 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, paragraph (k) is revised to read as follows:


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

* * * * *
    (k) Closure provisions applicable to the Madison and Swanson sites 
and Steamboat Lumps. The Madison and Swanson sites are bounded by rhumb 
lines connecting, in order, the following points:

------------------------------------------------------------------------
                    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'
------------------------------------------------------------------------


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

    The following provisions apply within the Madison and Swanson sites 
and Steamboat Lumps through June 16, 2010.
    (1) Possession of Gulf reef fish is prohibited, except for such 
possession aboard a vessel in transit with fishing gear stowed as 
specified in paragraph (k)(3) of this section.
    (2) During November through April, all fishing is prohibited, and 
possession of any fish species is prohibited, except for such 
possession aboard a vessel in transit with fishing gear stowed as 
specified in paragraph (k)(3) of this section. The provisions of this 
paragraph, (k)(2), do not apply to highly migratory species.
    (3) For the purpose of paragraph (k) of this section, transit means 
non-stop progression through the area; fishing gear appropriately 
stowed means -
    (i) A longline may be left on the drum if all gangions and hooks 
are disconnected and stowed below deck. Hooks cannot be baited. All 
buoys must be disconnected from the gear; however, buoys may remain on 
deck.
    (ii) A trawl net may remain on deck, but trawl doors must be 
disconnected from the trawl gear and must be secured.
    (iii) A gillnet must be left on the drum. Any additional gillnets 
not attached to the drum must be stowed below deck.
    (iv) A rod and reel must be removed from the rod holder and stowed 
securely on or below deck. Terminal gear (i.e., hook, leader, sinker, 
flasher, or bait) must be disconnected and stowed separately from the 
rod and reel. Sinkers must be disconnected from the down rigger and 
stowed separately.
    (4) During May through October, surface trolling is the only 
allowable fishing activity. For the purpose of this paragraph (k)(4), 
surface trolling is defined as fishing with lines trailing behind a 
vessel which is in constant motion at speeds in excess of four knots 
with a visible wake. Such trolling may not involve the use of down 
riggers, wire lines, planers, or similar devices.
    (5) For the purpose of paragraph (k) of this section, fish means 
finfish, mollusks, crustaceans, and all other

[[Page 314]]

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).
* * * * *
[FR Doc. 04-89 Filed 1-2-04; 8:45 am]
BILLING CODE 3510-22-S