[Federal Register Volume 69, Number 114 (Tuesday, June 15, 2004)]
[Rules and Regulations]
[Pages 33315-33321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13473]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 040205043-4168-02; I.D. 122303G]
RIN 0648-AP95


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Red Grouper Rebuilding Plan

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 Secretarial Amendment 
1 to the Fishery Management Plan for the Reef Fish Resources of the 
Gulf of Mexico (Secretarial Amendment 1). Secretarial Amendment 1 was 
prepared by the Secretary of Commerce and the Gulf of Mexico Fishery 
Management Council (Council) pursuant to the rebuilding requirements of 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). This final rule establishes a quota for red grouper, 
provides for closure of the entire shallow-water grouper fishery when 
either the shallow-water grouper quota or the red grouper quota is 
reached, establishes a bag limit of two red grouper per person per day, 
reduces the shallow-water grouper quota, reduces the deep-water grouper 
quota, and establishes a quota for tilefishes. In addition, for red 
grouper in the Gulf of Mexico, Secretarial Amendment 1 establishes a 
10-year stock rebuilding plan, biological reference points, and stock 
status determination criteria consistent with the requirements of the 
Magnuson-Stevens Act. This final rule is designed to end overfishing 
and rebuild the red grouper resource.

[[Page 33316]]


DATES: This final rule is effective July 15, 2004.

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

FOR FURTHER INFORMATION CONTACT: Phil Steele, telephone: 727-570-5305, 
fax: 727-570-5583, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The fishery for reef fish is managed under 
the Fishery Management Plan for the Reef Fish Resources of the Gulf of 
Mexico (FMP) that was prepared by the Council. The FMP was approved by 
NMFS and implemented under the authority of the Magnuson-Stevens Act by 
regulations at 50 CFR part 622.
    On January 8, 2004 (69 FR 1278), NMFS published a notice announcing 
the availability of Secretarial Amendment 1 and requested comments on 
its contents. On February 20, 2004 (69 FR 7898), NMFS published a 
proposed rule to implement Secretarial Amendment 1 and requested 
comments through April 20, 2004 (69 FR 7898, February 20, 2004). NMFS 
adopted Secretarial Amendment 1 on May 28, 2004. The rationale for the 
measures in Secretarial Amendment 1 is provided in the amendment and in 
the preamble to the February 20, 2004 (69 FR 7898), proposed rule and 
is not repeated here.

Comments and Responses

    NMFS received 17 comments on Secretarial Amendment 1 and three 
comments on the proposed rule in addition to a petition signed by 66 
commercial fishermen on the proposed rule. Additionally, two Council 
members submitted a minority report objecting to various aspects of 
Secretarial Amendment 1. A summary of those comments and NMFS' 
responses to those comments follows.
    Comment 1: Several comments were received that objected to the 
establishment of a 2-fish red grouper recreational bag limit (within 
the aggregate 5-fish grouper bag limit).
    Response: Setting a 2-fish red grouper recreational bag limit (out 
of the aggregate 5-fish grouper bag limit) is projected to reduce the 
harvest in the recreational sector by 9 percent and is necessary to 
accomplish rebuilding goals without reallocating harvest. Although this 
reduction is slightly less than the 9.4-percent reduction sought by 
NMFS, the percent difference is not significant since the recreational 
sector only accounted for 19 percent of the total red grouper harvest 
during 1999-2001. Further, according to a NMFS bag limit analysis 
conducted in 2001 on angler trips where red grouper were caught, the 
average number of red grouper taken per angler trip was only 1.2 fish, 
and only 6 percent of the angler trips caught more than two red 
grouper. The effect of the bag limit on this 6 percent of angler trips 
will achieve the above-mentioned 9 percent harvest reduction. However, 
overall, a reduction in the recreational bag limit will have little 
impact on most recreational fishermen. A bag limit reduction also 
eliminates the necessity for a closed season, which would result in 
more negative impacts on the for-hire sector, because trip 
cancellations are more likely to occur under a closed season than under 
a reduced bag limit.
    Comment 2: Several comments recommended a prohibition on longlines 
as allowable gear in the commercial grouper fishery or movement of the 
longline gear boundary to the 50-fathom (91.4-m) depth contour.
    Response: A prohibition on the use of longlines as allowable gear, 
and the subsequent reduction in red grouper landings of approximately 
60 percent attributed to that sector, is unnecessary to rebuild the 
stock within 10 years. Further, a prohibition on longlines as allowable 
gear would disproportionally affect one sector of the commercial 
grouper fishery, i.e., longline fishermen, by allowing the vertical 
line and trap sectors of the fishery to harvest a greater proportion of 
the resource. Such action would have dire economic consequences for the 
longline sector and result in severe economic disruption on those 
coastal fishing communities dependent on this segment of the commercial 
fishery. Additionally, such action could result in the loss of some 
onshore processing infrastructure which could have negative economic 
impacts on other sectors of the commercial grouper fishery that require 
these processing facilities. Movement of the commercial longline gear 
boundary to the 50-fathom (91.4-m) depth contour, even with an 
estimated 60-80 percent shift in effort by longline fishermen to 
vertical line gear, would reduce the harvest of red grouper by 
approximately 38-43 percent. Because only a 9.4-percent reduction is 
necessary, these actions would be unnecessarily restrictive for 
rebuilding the red grouper stock and could lead to greater short-term 
socioeconomic loss from forgone yield.
    Comment 3: One comment recommended reducing the commercial quota 
for shallow-water grouper by 50 percent.
    Response: The measures implemented by this rule reduce the shallow-
water grouper commercial quota to account for the required 9.4-percent 
reduction in the red grouper component of the quota which is necessary 
to end overfishing and rebuild the red grouper stock. Reducing the 
shallow-water grouper quota by 50 percent would be unnecessarily 
restrictive for rebuilding the red grouper stock and would lead to 
greater short-term socioeconomic loss from forgone yield.
    Comment 4: One comment was received from the Council that 
recommended establishing a single commercial trip limit of 4,000 lb 
(1,814 kg) for shallow-water grouper if 75 percent of the shallow-water 
grouper quota is reached by September 30, and a petition submitted by 
commercial fishermen recommended a 5,500-lb (2,495-kg) trip limit year-
round for the commercial grouper fishery.
    Response: In an earlier draft of Secretarial Amendment 1, trip 
limits were proposed to help achieve the required 9.4-percent reduction 
in red grouper landings and to slow the commercial harvest, thereby 
providing for an extended open season. Landings data for the commercial 
shallow-water grouper fishery indicated that the shallow-water grouper 
quota was exceeded in 2000 and 2001. Thus, trip limits were proposed as 
a management measure to help achieve the required reduction in fishing 
mortality and control fishing effort to allow for an extended season. 
The Southeast Fisheries Science Center (SEFSC) recently recalculated 
the shallow-water grouper landings using an updated conversion factor 
which showed that the shallow-water grouper quota had only been 
exceeded by 6,500 lb (2,948 kg) in 2001. Therefore, alternatives for 
year-round trip limits were determined by NMFS to be unnecessary at 
this time to ensure an expanded season. Additionally, establishment of 
a trip limit may encourage effort shifting from one sector of the 
fishery to another sector with a higher trip limit, i.e., vertical line 
to longline, with a subsequent increase in fishing mortality.
    NMFS conducted an economic analysis for a single commercial trip 
limit of 4,000 lb (1,814 kg) for shallow-water grouper if 75 percent of 
the shallow-water grouper quota is reached by September 30. The agency 
concluded that such action will not prevent a quota closure since the 
red grouper quota under this scenario, based on 1999 through 2001 
landings data, is projected to be reached by late November or early 
December, which is similar to the

[[Page 33317]]

projected closure date under the proposed commercial quotas.
    Anecdotal information received from several fishing organizations 
indicates that an unknown number of large highly migratory species 
longline vessels have entered the shallow-water grouper fleet in 2004. 
Effort by these larger vessels, which are capable of deploying longline 
gear of lengths substantially greater than gear used in the existing 
fleet, could increase fishing mortality rates on both the red grouper 
and shallow-water grouper stocks, thus potentially reducing the fishing 
season. NMFS will monitor landings through the existing shallow-water 
grouper quota monitoring program. If landings of either red grouper or 
other shallow-water grouper species have increased beyond projections 
for the 2004 fishing year, the Council or NMFS may elect to implement 
trip limits as an additional management measure.
    Comment 5: One non-governmental organization (NGO) stated that the 
recommended reduction in fishing mortality is not sufficient to address 
overfishing and rebuild the red grouper stock.
    Response: Secretarial Amendment 1 is based on the best available 
scientific information and accordingly will establish a 10-year red 
grouper rebuilding plan, structured in 3-year intervals, that would end 
overfishing and rebuild the stock to maximum sustainable yield (MSY). 
The rebuilding plan seeks to achieve a 9.4-percent reduction in the 
recreational and commercial harvest of red grouper, relative to the 
average landings for 1999-2001, during the first 3 years of the 10-year 
rebuilding plan. The appropriate measures for the subsequent 3-year 
intervals, consistent with the overall provisions of the rebuilding 
plan, would be determined based on the latest stock assessments 
available at that time. Secretarial Amendment 1 also includes measures 
designed to protect other shallow-water grouper, deep-water grouper, 
and tilefishes from any potential shift in fishing mortality that might 
result from implementation of the red grouper rebuilding plan.
    Comment 6: One comment from an NGO stated that the use of the 1999-
2001 time frame for establishing commercial quota baselines, and the de 
facto allocation for the recreational fishery, is both scientifically 
risky and inherently unfair to the recreational sector. Additionally, a 
minority report submitted by two Council members stated that the 6.56 
million-lb (2.95 million-kg) allowable biological catch (ABC) for red 
grouper is too high.
    Response: The Council decided to base its harvest reduction 
strategy on the baseline years 1999-2001 rather than 1990-2000 because 
the fishery is currently influenced by the strong 1996 red grouper 
year-class, and will likely continue to be influenced by it for the 
next 3 years of the rebuilding plan. A new stock assessment will be 
prepared and a new ABC selected for the second and subsequent 3-year 
intervals.
    The commercial-to-recreational ratio of red grouper caught during 
1990-2000 was 76:24, little changed from the 1986-1989 pre-regulatory 
ratio of 75:25. However, in recent years (1999-2001) the commercial-to-
recreational ratio has shifted to 81:19. There are two likely reasons 
for this shift. First, in 2000, differential gag minimum size limits 
were implemented (24 inches (61 cm) commercial, 22 inches (56 cm) 
recreational), which allowed the recreational sector to focus more on 
gag. In fact, the recreational proportion of gag harvest increased in 
1999-2001 compared to 1990-2000. Second, the strong 1996 year-class of 
red grouper entered the fishery around 1999. Since commercial sector 
catches predominately were red grouper while the recreational sector 
catches predominately were gag, this year-class provides more of a 
boost to commercial harvest than to recreational harvest. Single-
species grouper allocations are not specified in Reef Fish Amendment 1, 
and the current amendment does not attempt to address the question of 
single-species grouper allocations. Instead, the current amendment 
achieves the needed reductions in red grouper harvest by applying the 
same percentage reductions to each sector, thus effectively maintaining 
allocations at current levels.
    The RFSAP strongly recommended a constant FMSY fishing 
mortality rate for red grouper with an ABC range of 6.59 to 7.63 
million lb (2.99 to 3.46 million kg, respectively) in 2004. Further, 
the RFSAP also recommended that if the Council decided to take a more 
conservative approach and began to manage red grouper towards 
BOY, a constant FOY yield of 6.14 to 6.59 million 
lb (2.79 to 2.99 million kg) is recommended for 2004. The recommended 
ABC of 6.56 million lb (2.98 million kg) for the first 3-year interval 
of the rebuilding plan is mid-range of these high and low end values 
recommended by the RFSAP. This allows the stock to be adjusted in 3-
year increments, rather than every year. This strategy allows harvest 
to increase in a stepwise fashion as the stock recovers.

Classification

    The Administrator, Southeast Region, NMFS, determined that 
Secretarial Amendment 1 is necessary for the conservation and 
management of the Gulf reef fish 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 a FRFA that describes the economic impact this rule 
is expected to have on small entities. A summary of the FRFA follows.
    The Magnuson-Stevens Act provides the statutory basis for this 
rulemaking. This rule will: establish red grouper biological reference 
points and stock status criteria; adopt a 10-year red grouper 
rebuilding plan based on a 3-year interval rebuilding strategy that 
will include a 9.4-percent reduction in total red grouper harvests for 
the first 3-year interval; adjust the shallow-water grouper quota by an 
amount equal to the reduction in the red grouper quota; set the 
recreational bag limit at two red grouper out of the five aggregate 
grouper bag limit per person; close the commercial shallow-water 
grouper fishery when the commercial red grouper quota or the shallow-
water grouper quota is reached, whichever comes first; reduce the deep-
water grouper quota; and establish a tilefish quota.
    The primary objective of this rule is to optimize the net benefits 
to the Nation of the shallow-water grouper stocks by rebuilding the red 
grouper component to a stock level capable of supporting optimum yield.
    No comments were received regarding the economic impact of this 
rule. Therefore, no changes were made in the final rule as a result of 
such comments.
    This rule contains no changes in recordkeeping or compliance 
requirements.
    This rule will impact both the commercial and recreational 
participants that traditionally harvest shallow-water grouper species 
and dealers who receive these species from commercial harvesters.
    There are currently approximately 1,204 active commercial reef fish 
permits and an unknown number of other permits in the process of being 
renewed. Examination of 2000 logbook data showed that of vessels with 
commercial reef fish permits, 782 vessels in Florida and 207 in other 
Gulf states landed reef fish with vertical line gear in 2000. An 
additional 155 vessels in Florida and 33 in other Gulf states

[[Page 33318]]

were identified as having landed reef fish using longline gear in 2000. 
Furthermore, 55 vessels, all in Florida, reported landing reef fish 
using fish traps. For all vessels landing reef fish, a total of 546 
vessels participate in the shallow-water grouper fishery on a 
consistent basis. Of these vessels, 138 used longline gear, 353 used 
vertical line gear, and 55 used fish traps. Within the commercial red 
grouper fishery, longline gear accounted for 59 percent of landings, 
handline gear accounted for 24 percent, and fish traps accounted for 16 
percent. The corresponding landings percentages for the commercial gag 
fishery are: 25 percent for longline gear, 73 percent for handline 
gear, and 2 percent for fish traps. Other gear types account for a 
minuscule portion of the commercial landings of these species. Red 
grouper and gag are the two most significant species in the shallow-
water grouper fishery. The measures in this rule will directly or 
indirectly affect all of these vessels.
    Although this rule will directly or indirectly affect all 
commercial vessels that participate in the grouper fishery, this rule 
will affect vessels that operate in the eastern Gulf (Florida) more 
significantly because the bulk of the grouper fishery is in this area. 
Among the Florida vessels, the longline vessels will bear most of the 
cost of the measures, particularly with respect to red grouper. High-
volume vertical line and fish trap vessels will also bear a 
disproportionate share of the burden. Estimates of gross annual 
receipts per vessel for vessels in the reef fish fishery are as 
follows: $67,979 for high-volume vessels using vertical line gear in 
the eastern Gulf; $24,588 for low-volume vessels using vertical line 
gear in the eastern Gulf; $116,989 for high-volume vessels using bottom 
longline gear Gulf-wide; $87,635 for low-volume vessels using bottom 
longline gear Gulf-wide; $93,426 for high-volume vessels using fish 
traps (Florida only); and $86,039 for low-volume vessels using fish 
traps (Florida only). Estimates of net annual income per vessel 
(defined as gross receipts less routine trip costs) for vessels in the 
reef fish fishery are as follows: $23,822 for high-volume vessels using 
vertical line gear in the eastern Gulf; $4,479 for low-volume vessels 
using vertical line gear in the eastern Gulf; $25,452 for high-volume 
vessels using bottom longline gear Gulf-wide; $14,978 for low-volume 
vessels using bottom longline gear Gulf-wide; $19,409 for high-volume 
vessels using fish traps (Florida only); and $21,025 for low-volume 
vessels using fish traps (Florida only).
    This rule will also affect fish dealers that receive groupers by 
way of purchase, barter, or trade. About 431 dealers located in the 
five Gulf states receive groupers. Of this total, approximately 87 
dealers located in Florida will be most directly affected by this final 
rule. Of these 87 dealers, approximately 54 dealers generally receive 
less than 10,000 lb (4,536 kg) of grouper per year while 11 dealers 
generally receive more than 80,000 lb (36,287 kg) of grouper per year. 
Among the longline vessels operating in the fishery, more vessels 
reported sales to dealers in Madiera Beach (54 vessels) and St. 
Petersburg (34 vessels) than any other locations. Information on the 
average number of employees per reef fish dealer is not known. Although 
dealers and processors are not synonymous entities, total employment 
for reef fish processors in the Southeast has been estimated at 
approximately 700 individuals, both part- and full-time. It is assumed 
that all processors must be dealers, yet a dealer need not be a 
processor. Further, processing is a much more labor intensive exercise 
than dealing, therefore requiring greater employment. Therefore, it is 
assumed that total dealer employment is less than 700 individuals.
    The measures in the rule that apply to the recreational sector will 
also affect all for-hire vessels that operate in the reef fish fishery. 
As of July 2003, a total of 1,377 reef fish permits had been issued to 
the recreational for-hire sector, which includes both charter boats and 
headboats. Similar to the situation with the commercial sector, most of 
the effects will be borne by those for-hire vessels that operate in 
Florida. This number, however, cannot be determined with certainty 
since the for-hire permit registration address does not necessarily 
indicate the area of operation. Further, identifying the number of 
vessels dependent upon shallow-water grouper species is not possible 
given available data. Based on fees, number of passengers, and number 
of trips, average annual receipts are estimated at $68,000 for charter 
vessels and $324,000 for headboats. Major activity centers for charter 
boats in Florida are Naples, Fort Myers/Fort Myers Beach, Destin, 
Panama City/Panama City Beach, Pensacola, and the Florida Keys. The 
major activity centers for headboats are Clearwater, Fort Myers/Fort 
Myers Beach, Destin, Panama City/Panama City Beach, and the Florida 
Keys. Florida Keys vessels, however, depend more on king mackerel, 
billfish, and dolphin than grouper species. Additional impacts from the 
measures contained in this rule will be borne by the extended 
communities at the activity centers and the businesses therein. 
However, these entities cannot be quantified due to lack of sufficient 
data.
    The Small Business Administration (SBA) considers a commercial 
fishing business to be a small business entity if the business is 
independently owned and operated, is not dominant in its field of 
operation, and has receipts of up to $3.5 million annually. The 
benchmark for a small business in the for-hire fishery is a firm with 
receipts of up to $6 million per year. The SBA benchmark for a fish 
dealer or processing facility is a business with fewer than 500 
employees. Given the revenue and employment information provided above, 
all the business entities potentially affected by the rule are 
considered small entities.
    The biological reference points and stock status criteria specified 
by Secretarial Amendment 1 will not directly affect fishery behavior 
and, thus, are not expected to produce any direct economic impacts. The 
quota reductions and associated quota closure for the commercial 
shallow-water grouper fishery are expected to take effect by mid-
November of the first year of implementation. The quota closure is 
expected to reduce annual net revenues by 11 percent for longline 
vessels, 4 percent for vertical line vessels, and 5 percent for fish 
trap vessels. If vessels can successfully increase their landings and 
revenues more than their costs by increasing their number of trips, net 
income losses due to the quota closure provision can be partially 
offset. However, this would cause the quota to be reached faster every 
year, inducing a derby that may eventually result in decreases in ex-
vessel prices and further erode vessel profits. The quotas for tilefish 
and deep-water groupers match the historical commercial harvests for 
these species so these particular measures are not expected to reduce 
the profits of commercial vessels.
    The red grouper recreational bag limit is not expected to 
substantially affect the revenues of for-hire vessels, although trip 
cancellations by recreational anglers may occur as a result of the 
change. However, only 5 percent of charter vessels operating off the 
Florida Gulf coast have reported targeting one species, while 36 
percent reported targeting three or fewer species, and 90 percent 
reported targeting eight or fewer species. About 29 percent of charter 
vessels have reported not targeting specific species. None of the 
headboats in the Florida Gulf target only one species, 60 percent

[[Page 33319]]

target four or less species, and 41 percent do not target specific 
species. Since the bag limit change is specific to red groupers, other 
species may still be targeted or caught. Thus, trip cancellations as a 
result of the red grouper bag limit reduction are expected to be 
relatively few. Fishing trip costs of for-hire vessels are also not 
likely to increase, since these vessels are expected to continue to 
fish in the same areas they traditionally fish. Total effects of the 
rule on the net revenue or profit of the for-hire vessels in Florida, 
however, cannot be determined with certainty because firm-specific data 
are not available for the for-hire fleet.
    The profit profile for dealers is not known due to the absence of 
applicable data. The projected reduction in ex-vessel sales ($2.248 
million) as a result of the rule equals approximately 11.5 percent of 
total shallow-water grouper revenues. It is unlikely, however, that any 
dealer with substantial business operations would be wholly dependent 
upon harvests of shallow-water grouper. Thus, dealer business failure 
as a result of quota reductions is not expected to be substantial.
    Three alternatives, including the no action alternative, were 
considered relative to the specification of red grouper MSY. The rule 
will establish red grouper MSY as a range whereas each of the two 
additional action alternatives specify the reference points alternately 
as the lower and upper bounds of the proposed range. Since 
specification of the maximum sustainable yield is a required component 
of a fishery management plan, the no-action alternative is not a viable 
alternative. The specification of a range contained in the rule was 
selected as best accounting for the uncertainty associated with the 
spawner-recruit relationship for this species.
    Three alternatives, including the no action alternative, were 
considered relative to the specification of red grouper minimum stock 
size threshold. Since specification of the minimum stock size threshold 
is a required component of a fishery management plan, the no-action 
alternative is not a viable alternative. One alternative would 
establish a more conservative specification of the minimum stock size 
threshold than the rule, while another would establish a less 
conservative threshold. The specification contained in the rule was 
selected because it follows the recommendations of NMFS's Technical 
Guidance On the Use of Precautionary Approaches to Implementing 
National Standard 1 of the Magnuson-Stevens Fishery Conservation and 
Management Act (NOAA Technical Memorandum NMFS-F/SPO-
) (NMFS Technical Guidance).
    Four alternatives, including the status quo alternative, were 
considered relative to the specification of red grouper maximum fishing 
mortality rate. One alternative would establish a more conservative 
specification of the maximum fishing mortality rate, while the other 
three alternatives would establish a less conservative threshold. The 
specification contained in the rule was selected because it follows the 
recommendations of the NMFS Technical Guidance.
    Three alternatives, including the no action alternative, were 
considered relative to the specification of red grouper optimum yield. 
Since specification of the optimum yield is a required component of a 
fishery management plan, the no-action alternative is not a viable 
alternative. One alternative would establish a more conservative 
specification of the threshold, while another would establish a less 
conservative threshold. The specification contained in the rule was 
selected because it follows the recommendations of the NMFS Technical 
Guidance.
    Five alternatives, including the no action alternative, were 
considered relative to the red grouper rebuilding plan specified by the 
rule. Since specification of a rebuilding plan is a required component 
of a fishery management plan for a resource that has been identified as 
overfished, the no-action alternative is not a viable alternative. 
Three alternatives would establish the same recovery period, 10 years, 
but specify different annual allowable biological catches. One of these 
alternatives would allow a higher initial catch than the rule, thereby 
inducing lower short-term adverse impacts than the rule. This 
alternative would not, however, require mandatory evaluations of the 
allowable biological catch every 3 years, as the rule will, and may not 
allow harvests to increase during the recovery period, as the rule 
will. Thus, this alternative may result in increased costs relative to 
the rule. The two alternatives that would establish lower catches than 
the rule would result in increased adverse impacts relative to the 
rule. An additional alternative would establish a shorter recovery 
period than the rule, requiring lower harvest levels, thereby 
accelerating the recovery schedule but with greater short-term adverse 
economic impacts. The recovery plan specified by the rule, therefore, 
best accomplishes NMFS' objectives while minimizing adverse economic 
impacts.
    Three alternatives, including the no action alternative, were 
considered relative to the reduction in the shallow-water grouper quota 
by an amount equal to the reduction in the red grouper total allowable 
catch. Two alternatives would reduce the shallow-water grouper quota by 
amounts greater than the rule and would not, therefore, decrease the 
adverse impacts of the rule. The no action alternative could lead to 
greater mortality of red grouper as a result of catch and release 
mortality, therefore jeopardizing the recovery of the species.
    Five alternatives were considered relative to commercial quota 
closure. The no-action alternative would close the commercial fishery 
for shallow-water grouper when the aggregate quota is reached. This 
would result in less adverse economic impacts than the closure 
specified by the rule but would result in excessive red grouper 
mortality if the red grouper quota is reached before the shallow-water 
grouper quota is met. One alternative would close the commercial red 
grouper fishery when this quota is reached, but allow the fishery for 
other shallow-water grouper species to continue until the aggregate 
quota is reached. While this alternative would result in less short-
term adverse economic impacts than the rule, red grouper would continue 
to be caught as a bycatch species, thereby resulting in total red 
grouper mortality exceeding the quota. In addition to closing the 
commercial red grouper fishery, another alternative would close fishing 
for all shallow-water grouper species in certain areas of the Gulf when 
the red grouper quota is met. Multiple area closure options were 
considered, up to and including closure of the entire Gulf, which would 
match the provisions of the rule. For those options that are not Gulf-
wide, the resultant short-term adverse impacts would be less than those 
of the rule. These options would potentially allow, however, excessive 
mortality of red grouper since red grouper would continue to be caught 
as bycatch. The final alternative would allow continued red grouper 
harvest if the red grouper allocation has not been met when the 
shallow-water grouper aggregate quota has been achieved. This 
alternative, however, would result in the shallow-water grouper 
aggregate quota being exceeded. Since these other alternatives would 
result in either excessive red grouper or excessive total shallow-water 
grouper mortality, only the closure specification contained in the rule 
is consistent with the NMFS' objectives.
    Four alternatives were considered relative to fixed shallow-water 
grouper closed seasons. The fixed closure

[[Page 33320]]

specified by the rule is the status quo February 15 through March 15 
closed season on red grouper, gag, and black grouper. One alternative 
would replace this closure with a March 1 through May 31 closure, and 
would apply the closure to either the same three species or all 
shallow-water grouper species. This alternative, regardless of the 
species options, would be more stringent than necessary to reduce red 
grouper harvests and protect gag spawning aggregations and would result 
in greater economic losses than the proposed alternative. A second 
alternative incorporates the same species options as the first rejected 
alternative, but does not identify a specific closure period. Depending 
upon the period chosen, the resultant impacts could be less than or 
greater than those of the rule. However, the rule was selected since 
the period encompassed best meets the dual purpose of reducing red 
grouper harvest and protecting gag spawning aggregations. A final 
alternative would eliminate the fixed closure. While this alternative 
would also eliminate the short-term adverse impacts of the rule, the 
desired reduction in red grouper harvests and protection of gag would 
not be accomplished.
    Five alternatives were considered for commercial grouper trip 
limits. The rule will continue the status quo of no commercial grouper 
trip limits. The remaining alternatives would either impose trip limits 
that applied throughout the year, or would be triggered upon shallow-
water grouper harvests reaching 75 percent of the aggregate quota. Each 
of these alternatives would result in greater adverse economic impacts 
than the rule and are, therefore, not consistent with NMFS' intent.
    Approaches for constraining the recreational grouper harvest to its 
allocation included closures, bag limits, and minimum size limits. In 
addition to the specifications contained in the rule, which will 
maintain the status quo of no fixed closed season for the recreational 
grouper fishery, four alternatives were considered relative to 
recreational closures. In addition to options for applying the closure 
to selected species in the shallow-water grouper complex or the entire 
complex, each of these alternatives specified fixed closed seasons. One 
alternative additionally limited the closure to a specific region of 
the Gulf as opposed to the entire Gulf. Allowing the recreational 
fishery to remain open year-round, as will be accomplished by the rule 
in combination with appropriate bag and size limits, was determined to 
produce the least adverse economic impacts on the fishery. Thus, the 
rule was determined to best achieve NMFS' objectives.
    Four alternatives were considered for the recreational grouper bag 
limit. While this rule will establish a limit of two red grouper out of 
the aggregate five-fish shallow-water grouper bag limit, one 
alternative would establish a similar limit on gag in addition to the 
red grouper limit. This alternative would, thus, be more restrictive 
than the rule and increase adverse impacts. Additionally, this 
alternative would exceed the protection currently believed necessary 
for gag. Another alternative would not change the red grouper limit but 
would instead reduce the total aggregate bag limit. Available options, 
however, would result in either or both reductions in red grouper 
harvests that are greater than necessary or reductions in the harvest 
of other grouper species that are not currently justified. Thus, this 
alternative would increase the negative impacts on the fishery. The 
final alternative, the status quo, would not achieve the required red 
grouper harvest reductions. The rule, therefore, best achieves the 
necessary harvest reductions at the least adverse impact.
    Four alternatives were considered to each of the minimum size 
specifications of the rule to retain the commercial and recreational 
red grouper minimum size limits at their current specification of 20 
inches (50.8 cm) total length. The larger minimum size limits, however, 
lead to harvest reductions that exceed the required reductions, 
generate increased discard mortality, and increase expected losses 
relative to the rule. Thus, the rule best achieves NMFS' objectives at 
the least adverse impact.
    The rule specifies that the fishing year remains the status quo, 
which provides that the fishing year for all reef fish begins January 1 
each year. Alternatives to the status quo provide for a fishing year to 
start after a fixed commercial season for any reef fish or for the 
grouper fishery only. These alternatives are not expected to have 
immediate impacts on fishing participants. Maintaining the status quo, 
however, as specified by the rule, provides stability and helps 
eliminate future uncertainty associated with changes in the start of 
the open season for various species within the grouper fishery in 
particular and reef fish fishery in general.
    The rule establishes a quota for tilefish and reduces the deep-
water grouper quota from its current level, which has never been met, 
to the average annual harvest from 1996-2000, with the intent to 
minimize the potential adverse impacts of participants in the shallow-
water grouper fishery shifting effort to the deep-water species. In 
addition to options encompassing different quota levels and the status 
quo alternative, significant alternatives to the rule came in two 
forms. One form set different quota levels for deep-water groupers and 
tilefish independently, while the other form combined deep-water 
groupers and tilefish and provided for different quota levels for the 
aggregate. The alternative independent quotas for each group fall 
between the extremes of the alternative options and, thus, would be 
expected to result in less adverse impacts than the lower options, and 
more adverse impacts than the higher options. However, the quotas 
specified by the rule are equal to the average commercial harvest for 
these species, so adverse impacts on fishing participants are expected 
to be minimal.
    Copies of the RIR and FRFA are available upon request (see 
ADDRESSES).

List of Subjects in 50 CFR Part 622

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

    Dated: June 8, 2004.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 622 is amended as 
follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

0
1. The authority citation for part 622 continues to read as follows:

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

0
2. In Sec.  622.39, paragraph (b)(1)(ii) is revised to read as follows:


Sec.  622.39  Bag and possession limits.

* * * * *
    (b) * * *
    (1) * * *
    (ii) Groupers, combined, excluding jewfish and Nassau grouper--5 
per person per day, but not to exceed 2 red grouper per person per day 
or 1 speckled hind or 1 Warsaw grouper per vessel per day.
* * * * *

0
3. In Sec.  622.42, paragraphs (a)(1)(ii) and (iii) are revised and 
paragraph (a)(1)(iv) is added to read as follows:


Sec.  622.42  Quotas.

* * * * *
    (a) * * *
    (1) * * *
    (ii) Deep-water groupers (i.e., yellowedge grouper, misty grouper,

[[Page 33321]]

warsaw grouper, snowy grouper, and speckled hind), and, after the quota 
for shallow-water grouper is reached, scamp, combined--1.02 million lb 
(0.46 million kg), gutted weight, that is, eviscerated but otherwise 
whole.
    (iii) Shallow-water groupers (i.e., all groupers other than deep-
water groupers, jewfish, and Nassau grouper), including scamp before 
the quota for shallow-water groupers is reached, combined -8.80 million 
lb (3.99 million kg), gutted weight, that is, eviscerated but otherwise 
whole. Within the shallow-water grouper quota there is a separate quota 
for red grouper--5.31 million lb (2.41 million kg), gutted weight. When 
either the shallow-water grouper quota or the red grouper quota is 
reached, the entire shallow-water grouper fishery will be closed and 
the closure provisions of Sec.  622.43(a) introductory text and Sec.  
622.43(a)(1)(i) apply to the entire shallow-water grouper fishery.
    (iv) Tilefishes (i.e., tilefish and goldface, blackline, anchor, 
and blueline tilefish) combined--0.44 million lb (0.20 million kg), 
gutted weight, that is, eviscerated but otherwise whole.
* * * * *
[FR Doc. 04-13473 Filed 6-14-04; 8:45 am]
BILLING CODE 3510-22-S