[Federal Register Volume 69, Number 59 (Friday, March 26, 2004)]
[Rules and Regulations]
[Pages 15731-15734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6723]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 031107275-4082-02; I.D. 102803A]
RIN 0648-AP03


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Snapper-Grouper Fishery off the Southern Atlantic States; Amendment 13A

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 Amendment 13A to the 
Fishery Management Plan for the Snapper-Grouper Fishery of the South 
Atlantic Region (FMP). This final rule extends the current prohibitions 
on fishing for South Atlantic snapper-grouper in the experimental 
closed area and on retaining such species in or from the area. The 
experimental closed area constitutes a portion of the Oculina Bank 
Habitat Area of Particular Concern (HAPC), which is in the exclusive 
economic zone (EEZ) in the Atlantic Ocean off Ft. Pierce, FL. The 
intended effect is to continue the benefits of the closed area, namely, 
enhanced stock stability and increased recruitment of South Atlantic 
snapper-grouper by providing an area where deepwater snapper-grouper 
species can grow and reproduce without being subjected to fishing 
mortality.

DATES: This final rule is effective April 26, 2004.

ADDRESSES: Copies of the final regulatory flexibility analysis (FRFA) 
are available from the Southeast Regional Office, NMFS, 9721 Executive 
Center Drive N., St. Petersburg, FL 33702.

FOR FURTHER INFORMATION CONTACT: Julie Weeder, telephone: 727-570-5753, 
fax: 727-570-5583, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The snapper-grouper fishery off the southern 
Atlantic states is managed under the FMP. The FMP was prepared by the 
South Atlantic 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.
    In Amendment 6 to the FMP, the Council proposed prohibitions on 
fishing for South Atlantic snapper-grouper in what is currently known 
as the experimental closed area and on retaining such species in or 
from the area. NMFS approved these prohibitions, and they became 
effective June 27, 1994 (59 FR 27242, May 26, 1994). In addition, in 
the experimental closed area, any South Atlantic snapper-grouper taken 
incidentally by hook-and-line gear must be released immediately by 
cutting the line without removing the fish from the water.
    The experimental closed area is slightly less than 92 square 
nautical miles in the EEZ offshore from Ft. Pierce to Sebastian Inlet, 
FL. The geographical coordinates are specified at 50 CFR 622.35(c)(2). 
The experimental closed area constitutes a portion of the southern part 
of the Oculina Bank HAPC. In the entire HAPC no person may: (1) use a 
bottom longline, bottom trawl, dredge, pot, or trap; (2) if aboard a 
fishing vessel, anchor, use an anchor and chain, or use a grapple and 
chain; or (3) fish for rock shrimp or possess rock shrimp in or from 
the area on board a fishing vessel.
    The preambles for both the proposed and final rules for Amendment 6 
stated that the measures applicable to the experimental closed area ``* 
* * will `sunset' after 10 years if not reauthorized by the Council.'' 
(59 FR 9721, March 1, 1994 and 59 FR 27242, May 26, 1994, 
respectively).
    As stated above, measures applicable to the experimental closed 
area were intended to enhance stock stability and increase recruitment 
of South Atlantic snapper-grouper by providing an area where deepwater 
snapper-grouper species could grow and reproduce without being 
subjected to fishing mortality. They were based on the Council's 
concern that traditional fishery management measures, such as minimum 
size limits and quotas, might not be sufficient to protect fully the 
snapper-grouper resources. The Council believed the measures would 
provide protection for overfished species in the management unit while 
minimizing adverse impacts upon user groups.
    Based on limited information, there appear to be some encouraging 
signs of positive biological impacts from the initial 9-year 
prohibition of fishing for snapper-grouper species within the 
experimental closed area since it was established in 1994. A study 
conducted in 2001 found that, in the few areas where habitat remained 
intact, there were more and larger groupers than observed in a 1995 
study, and male gag and scamp were also common. The observation of male 
gag and scamp is particularly of interest because size, age,

[[Page 15732]]

and proportion of males of these species have declined both in the Gulf 
of Mexico and South Atlantic regions. Other encouraging signs include 
the observation of juvenile speckled hind, which is a candidate species 
for listing under the Endangered Species Act. However, some species in 
the management unit remain overfished and continued protection is 
required.
    This final rule will continue the current measures applicable to 
the experimental closed area indefinitely; no changes to regulatory 
text are required. The current measures at 50 CFR 622.35(c)(2) read as 
follows:
    ``(2) Experimental closed area. Within the Oculina Bank HAPC, the 
experimental closed area is bounded on the north by 27[deg]53' N. lat., 
on the south by 27[deg]30' N. lat., on the east by 79[deg]56' W. long., 
and on the west by 80[deg]00' W. long. No person may fish for South 
Atlantic snapper-grouper in the experimental closed area, and no person 
may retain South Atlantic snapper-grouper in or from the area. In the 
experimental closed area, any South Atlantic snapper-grouper taken 
incidentally by hook-and-line gear must be released immediately by 
cutting the line without removing the fish from the water.''
    The Council will review the configuration and size of the 
experimental closed area within 3 years of the publication date of this 
final rule and will re-evaluate all measures applicable to the area 
after 10 years.
    The Council believes these actions provide the most biological, 
social, and economic benefits while allowing for adaptive management. 
Extending the prohibition on fishing for snapper-grouper species in the 
experimental closed area for an indefinite period will continue to 
protect snapper-grouper populations and protect Oculina coral and 
associated habitat. Such extension will also provide a hedge against 
the scientific uncertainty associated with the status of snapper-
grouper species and reduce the possibility that these populations may 
fall below sustainable levels. Economically it is expected that the 
long-term benefits, such as ``insurance'' against the uncertainty of 
stock assessments and the non-use benefits of extending the 
prohibitions on snapper-grouper fishing in the closed area, outweigh 
the short-term benefits of opening the area to harvest. These measures 
are also expected to provide the most long-term positive impacts 
because they allow for adaptive management which can be seen as an 
assurance to the public that the area will be monitored and reviewed. 
Should the Council find after the 3-year review on size and 
configuration that the boundaries of the area are not appropriate, they 
can be changed at that time. In addition, the 10-year re-evaluation 
period will assure the public that the area will not be closed and 
forgotten. Additional background and rationale for the measures 
discussed above are contained in Amendment 13A.
    NMFS approved Amendment 13A on February 4, 2004. NMFS published a 
proposed rule to implement Amendment 13A and requested comments on the 
proposed rule through January 9, 2004 (68 FR 66069, November 25, 2003).

Comments and Responses

    NMFS received eight letters from the public during the comment 
periods on Amendment 13A and the proposed rule. The comments are 
summarized below along with the responses from NMFS.
    Comment 1: The Oculina Bank Experimental Closed Area (OECA) is a 
failed experiment in fisheries management because there was not 
adequate policing. The OECA should be opened immediately and 
indefinitely.
    Response: Scientific studies suggest that there has been some 
success with the OECA, and that a continued closure is appropriate. 
Signs of recovery of snapper-grouper species in the OECA are 
encouraging. A recent study showed that there were more and larger 
groupers in the area compared to 1995, and male gag and scamp were also 
observed. Finally, researchers observed juvenile speckled hind, a 
candidate species for the endangered species list. Opening the area 
would result in the loss of any gains accrued in the last 10 years, and 
short-term gains from increased catches would be outweighed by negative 
impacts to snapper-grouper populations. Enforcement activity for the 
OECA has recently increased. In 2003, NOAA Enforcement assigned a NOAA 
Enforcement special agent whose responsibility was to monitor fishing 
activity in the Oculina Bank area and coordinate law enforcement 
efforts.
    Comment 2: Two additional options should have been considered but 
were not: reducing the size of the area, and instituting a seasonal 
closure during spawning months for certain fish.
    Response: The Council considered both of these options during the 
scoping process. Neither a reduction in size of the current closed 
area, nor a time-limited spawning closure, would be expected to provide 
the degree of protection required to buffer snapper-grouper stocks 
against the scientific uncertainty associated with management of these 
species. The current size of the OECA is based on the best available 
scientific information, which includes, but is not limited to, the 
distribution of the Oculina coral and the deepwater snapper-grouper 
species associated with it. If the size of the OECA were reduced, some 
corals now located inside the boundaries of the present closed area 
would be susceptible to damage from hook-and-line gear and/or anchoring 
of vessels. Seasonal closures would not protect the density, sex ratio, 
or age, size, and community structure of fishes found in the OECA, 
because of harvests made in the open season. Fishing effort applied 
outside the closed season could remove the largest, oldest individuals 
with the best genetic makeup and greatest reproductive potential.
    Comment 3: While the closure of the OECA as described in the 
preferred alternative is a step in the right direction, the OECA should 
be permanently (not indefinitely) closed. Some writers said it should 
be closed until scientists show that it is no longer necessary. One 
writer suggested that 3 years was not long enough to evaluate success 
in the area, and the site should be given adequate time before 
evaluation. Others suggested that regular reviews should occur, but 
there should be no scheduled time limitations or deadlines for review.
    Response: Indefinite closure allows for adaptive management, which 
ensures that the area will be actively managed. Using adaptive 
management and the 10-year re-evaluation period, the public is assured 
that the area will be evaluated within prescribed timeframes and will 
not be re-opened prematurely. The evaluation scheduled for 3 years from 
the publication date of the final rule is meant to determine whether 
the size and shape of the OECA are appropriate, i.e., whether the 
configuration and location provide adequate protection for growth and 
reproduction of the target species, not whether fishes and corals in 
the area have recovered due to the closure. The deadlines set for 
reviews do not in themselves provide for action to change the FMP. 
Opening the OECA or changing the size or configuration of the area 
would require additional action by the Council and would necessitate 
analysis of the existing scientific data on the efficacy of the OECA. 
Any scientific reasoning for opening the OECA would be rigorously 
reviewed as part of that process.
    Comment 4: (a) Quotas on all fish stocks in the OECA should be cut 
by 40 percent in 2004 and by 10 percent each successive year; (b) No 
fishing for snapper-grouper species should be

[[Page 15733]]

allowed in the area, even incidental catch; (c) The size of the OECA 
should be doubled; (d) More marine sanctuaries should be established 
under the direction of the Caribbean Fisheries Management Council; and 
(e) The ban on anchoring in the OECA should be extended to include non-
fishing vessels.
    Response: (a) The Council is currently developing Amendment 13B to 
the FMP. This amendment will include options to restrict harvests of 
overfished species of the snapper-grouper complex throughout the South 
Atlantic. If such restrictions are implemented, they will be based on 
the best available scientific information. Quotas, along with seasonal 
closures and size limits, are frequently used management tools that 
help to ensure sustainability of species in the snapper-grouper 
management unit. (b) Incidental bycatch is non-directed and cannot be 
completely avoided, unless fishing for all species (including non-
snapper-grouper species) is prohibited. Current regulations require 
cutting the line on incidentally hooked snapper-grouper species caught 
in the OECA without removing them from the water. Such responsible and 
ethical fishing practices provide the best possible chance for survival 
of these fishes. (c) The size and configuration of the OECA will be re-
evaluated 3 years after the publication date of this final rule. (d) 
Marine sanctuaries in the United States are established pursuant to the 
National Marine Sanctuary Act, and not pursuant to the Magnuson-Stevens 
Act. (e) This amendment was prepared and will be implemented under the 
authority of the Magnuson-Stevens Act, which regulates fishing.
    Comment 5: Adequate enforcement is needed to ensure the security of 
the OECA, and more funding should be devoted to this end. Additional 
funding is needed to monitor the efficacy of the closure of the OECA.
    Response: Since this amendment was developed, enforcement efforts 
in the OECA have been enhanced significantly. For example, the Council 
stressed the importance of enforcement of the OECA; NOAA General 
Counsel revised its penalty schedule and increased civil administrative 
penalties; and a NOAA Enforcement special agent was assigned to the 
area and is responsible for coordinating patrols of the OECA and 
cooperating with partners to charge violators. Furthermore, the Florida 
Fish and Wildlife Conservation Commission purchased a 65-ft (20-m) 
offshore patrol vessel through the Joint Enforcement Agreement Fund 
from NOAA Enforcement. One of the missions of this enforcement vessel 
is to patrol the Oculina Bank and OECA. An Evaluation Plan, with needed 
research and monitoring studies and an enforcement/outreach program, is 
to be developed within 1 year of implementation of this amendment, 
using the expertise of the Council's Law Enforcement, Habitat, Coral, 
and Snapper-Grouper Advisory Panels. NMFS and the Council agree that 
continued research and monitoring of the OECA is important for 
measuring progress.
    Comment 6: The Oculina Habitat Area of Particular Concern (HAPC) 
should be extended to include recently discovered Oculina thickets that 
lie just outside the HAPC.
    Response: Amendment 13A states that, in 3 years, the size and 
configuration of the OECA will be re-evaluated using the best available 
information.
    Comment 7: An integrated management plan for the OECA and HAPC 
should be developed that incorporates regulatory actions, research and 
monitoring activities, enforcement needs, and outreach and education 
programs.
    Response: An Evaluation Plan, with needed research and monitoring 
studies and an enforcement/outreach program, is to be developed within 
1 year of implementation of this amendment, using the expertise of the 
Council's Law Enforcement, Habitat, Coral, and Snapper-Grouper Advisory 
Panels.

Classification

    The Administrator, Southeast Region, NMFS, determined that 
Amendment 13A is necessary for the conservation and management of the 
South Atlantic snapper-grouper fishery and that it is consistent with 
the national standards of the Magnuson-Stevens Act and other applicable 
laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an FRFA, based on the Regulatory Impact Review, that 
describes the economic impacts that this final rule will have on small 
business entities. A summary of the FRFA follows:
    Amendment 6 to the FMP, implemented in May 1994, established 
harvest and possession prohibitions for snapper-grouper species in the 
Oculina Experimental Closed Area. These prohibitions are scheduled to 
sunset in June 2004. This final rule will extend these prohibitions for 
an indefinite period of time for the purpose of continuing protection 
of snapper-grouper species, and reducing the possibility that these 
populations may fall below sustainable levels. Further, by restricting 
the ability to harvest fish from the area, the rule is also expected to 
provide protection to the Oculina coral in the area. The Magnuson-
Stevens Act, as amended, provides the statutory basis for the rule.
    No public comments were received concerning the IRFA. Therefore, no 
changes were made in the final rule as a result of public comments.
    The final rule does not impose any reporting or recordkeeping 
requirements.
    There are two general classes of small entities that will be 
directly affected by the rule, commercial fishing vessels and for-hire 
fishing vessels. The Small Business Administration defines a small 
business that engages in commercial fishing as a firm that is 
independently owned and operated, is not dominant in its field of 
operation, and has annual receipts up to $3.5 million per year. The 
revenue benchmark for a small business that engages in for-hire fishing 
is a firm that has annual receipts up to $6.0 million per year.
    There were 1,174 commercial vessels that participated in the 
snapper-grouper fishery in the South Atlantic during 2002. Of these 
vessels, 120 were homeported in the area of interest, where the ``area 
of interest'' is defined as those home port locations on the Florida 
Atlantic coast from Cape Canaveral south to West Palm Beach and are in 
the closest geographic proximity to the area covered by the rule. 
Commercial vessels operating in the snapper-grouper fishery in this 
area are estimated to have average annual gross and net incomes of 
approximately $39,745 and $12,388, respectively. Based on this income 
profile, it is assumed that all commercial fishing entities that will 
be affected by the rule are small entities.
    For the for-hire sector, 1,221 snapper-grouper for-hire permits 
were issued to vessels in the southern Atlantic states in 2002. Of this 
total, 94 permits were issued to for-hire vessels in the area of 
interest. These vessels comprise two types of business operations, 
charterboats, which are smaller vessels designed to carry six or fewer 
passengers that book trips on a vessel basis, and headboats, which are 
larger vessels that book passage on an individual angler basis. The 
average gross and net revenues in 1997 for charterboats operating off 
the Atlantic coast of Florida are estimated at $57,000 and $15,000, 
respectively (2001 dollars), while that of headboats are estimated at 
$155,000 and $69,000, respectively (2001 dollars). Based on these gross 
revenue profiles, all for-hire vessels that

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will be affected by the rule are assumed to be small entities.
    The number of commercial and for-hire vessels that would fish in 
the closed area should the area reopen is not known. During the public 
comment period on the proposed rule, no one expressed an intent or 
desire to fish in the area should it reopen. However, all entities in 
the area of interest have the potential to enter the area. All such 
entities will be covered by the final rule, and all said entities are 
small entities.
    The final rule is not expected to alter present fishing practices. 
All entities can continue to fish in the location, manner and frequency 
that they currently operate. Therefore, the final rule should not 
affect the profitability of identified vessels.
    Five alternatives to the final rule were considered. One 
alternative differs from the rule only in that it lacks a specific 
schedule for re-evaluation of the rule. Three alternatives also lack a 
re-evaluation schedule and differ from the rule in the duration of the 
prohibition. No impacts have been identified associated with the 
presence or absence of a prescribed re-evaluation schedule. These four 
alternatives, therefore, are expected to have the same effect on the 
affected entities as the final rule. None of these four alternatives 
would restrict current fishing practices in any way and, therefore, 
would not impose any new operational costs and would not adversely 
impact current harvests. Thus, current profits of participants in this 
fishery are not expected to be reduced. The only impact any of these 
four alternatives may induce would be the elimination of potential, but 
not certain, increased short-term profits that might be derived from 
fishing activity directed into the Oculina area, should sunset have 
been allowed to occur. The fifth alternative, the no-action 
alternative, would allow for sunset of the prohibition. This 
alternative, and the three alternatives that specify shorter 
prohibition duration than the final rule, would allow potential, but 
not certain, short-term increases in profits to occur if participants 
re-enter the area. However, if snapper-grouper populations become 
depleted as a result of directed effort inside the area, any short-term 
gains would dissipate. Further, these potential short-term profits are 
expected to be less than the benefits that will accrue to continued 
protection of the resource and area. The benefits of continued 
protection are expected to exceed any potential short-term profits that 
would materialize from fishing in the Oculina area no matter how long 
the prohibition continues. However, it is the Council's intent to 
achieve long term continued protection and those alternatives which 
limit the duration of the prohibition will not meet this intent. The 
final rule, therefore, is not expected to induce any significant 
economic impacts on small entities, best suits management needs, and 
meet the Council's intent.
    Copies of the FRFA are available upon request (see ADDRESSES).

    Authority: 16 U.S.C. 1801 et seq.

    Dated: March 19, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 04-6723 Filed 3-25-04; 8:45 am]
BILLING CODE 3510-22-S