[Federal Register Volume 69, Number 220 (Tuesday, November 16, 2004)]
[Proposed Rules]
[Pages 67104-67106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25430]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 041104307-4307-01; I.D. 102904B]
RIN 0648-AS56


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of Puerto Rico and the U.S. Virgin Islands; Seasonal 
Closure of Grammanik Bank

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 this proposed rule to implement interim measures 
recommended by the Caribbean Fishery Management Council (Council). This 
proposed rule would prohibit fishing for or possessing any species of 
fish, except highly migratory species, within the Grammanik Bank closed 
area from February 1, 2005, through April 30, 2005. The intended effect 
of this proposed rule is to protect a yellowfin grouper spawning 
aggregation and to reduce overfishing.

DATES: Comments must be received no later than 5 p.m., eastern time, on 
December 1, 2004.

ADDRESSES: You may submit comments on the proposed rule by any of the 
following methods:
     E-mail: [email protected]. Include in the 
subject line of the e-mail comment the following document identifier 
0648-AS56.
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Michael Barnette, Southeast Regional Office, NMFS, 
9721 Executive Center Drive N., St. Petersburg, FL 33702.
     Fax: 727-570-5583, Attention: Michael Barnette.
    Copies of documents supporting this action may be obtained by 
contacting the NMFS Southeast Regional Office at the above address.

FOR FURTHER INFORMATION CONTACT: Michael Barnette, 727-570-5794.

SUPPLEMENTARY INFORMATION: The reef fish fishery of Puerto Rico and of 
the U.S. Virgin Islands is managed under the Fishery Management Plan 
for the Reef Fish Fishery of Puerto Rico and of the U.S. Virgin Islands 
(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

    Grammanik Bank lies on the shelf edge approximately 7 miles (11.3 
km) south of Water Island, St. Thomas, U.S. Virgin Islands. The actual 
coral bank extends 1.05 miles (1.69 km) along the shelf edge and is 
approximately 328 ft (100 m) wide at its widest point. Researchers at 
the University of the Virgin Islands have documented that yellowfin 
grouper aggregate to spawn on Grammanik Bank from February through 
April each year, with peak spawning occurring around the full moon in 
March.
    Yellowfin grouper are a long-lived, slow-growing species and, 
therefore, have a higher susceptibility to overfishing. Based on the 
preferred stock status criteria alternatives contained in the Council's 
Draft Amendment to the Fishery Management Plans (FMPs) of the U.S. 
Caribbean to Address Required Provisions of the Magnuson-Stevens 
Fishery Conservation and Management Act (SFA Amendment), yellowfin 
grouper would be considered to be undergoing overfishing, and the stock 
would be considered to be overfished.
    Prior to 2000, the yellowfin grouper spawning aggregation appears 
to have been relatively unexploited. However, anecdotal information 
from fishermen indicates that significant quantities of

[[Page 67105]]

yellowfin grouper were harvested from Grammanik Bank during the 
spawning aggregations in recent years. Underwater visual censuses 
conducted by researchers at the University of the Virgin Islands in 
March 2002 and 2003 revealed only small numbers of yellowfin grouper 
(i.e., 50 to 60) present during the peak spawning period. Based on this 
apparent reduction in abundance, representatives of the University of 
the Virgin Islands and two environmental organizations recently 
expressed concern about the apparent increased fishing mortality on the 
yellowfin grouper spawning aggregation and recommended that emergency 
action be undertaken to protect yellowfin grouper during the peak 
spawning period. After considering all available information, including 
commercial landings data from the U.S. Virgin Islands that support the 
SFA Amendment's discussion of the overfished status of the yellowfin 
grouper stock, visual census data from researchers at the University of 
the Virgin Islands, and other relevant biological studies referenced in 
the supporting environmental assessment (EA), the Council, at its 
August 2004 meeting, requested NMFS to draft a rule that would 
implement interim measures to protect yellowfin grouper during the 2005 
spawning season. Consistent with the Council's request, this proposed 
rule would implement interim measures to protect the yellowfin grouper 
spawning aggregation during the 2005 spawning season. Subsequent, long-
term protection of the spawning aggregation would be addressed in 
measures contained in the SFA Amendment, which is currently under 
development and, if approved by NMFS, would be expected to be 
implemented in mid to late 2005.

Interim Measures to Protect Yellowfin Grouper

    This proposed rule would prohibit fishing for or possession of any 
species of fish, other than a highly migratory species, within the 
Grammanik Bank closed area from February 1, 2005, through April 30, 
2005. For the purposes of this rule, the term ``highly migratory 
species'' means bluefin, bigeye, yellowfin, albacore, and skipjack 
tunas; swordfish; sharks (listed in appendix A to 50 CFR part 635); 
white marlin, blue marlin, sailfish, and longbill spearfish. The 
Grammanik Bank closed area encompasses an area approximately 2.5 nm 
(4.6 km) by 2.75 nm (5.1 km) and is bounded by rhumb lines connecting, 
in order, the following points:

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 Point              North lat.                      West long.
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A        18[deg]12.40'                    64[deg]59.00'
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B        18[deg]10.00'                    64[deg]59.00'
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C        18[deg]10.00'                    64[deg]56.10'
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D        18[deg]12.40'                    64[deg]56.10'
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A        18[deg]12.40'                    64[deg]59.00'
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Classification

    At this time, NMFS has not determined that the interim measures 
that this proposed rule would implement are consistent with the 
national standards of the Magnuson-Stevens Act and other applicable 
laws. NMFS, in making that determination, will take into account the 
data, views, and comments received during the comment period on this 
proposed rule.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an EA for the interim measures that this proposed 
rule would implement. The EA discusses the impact on the environment as 
a result of this rule. A copy of the EA is available from NMFS (see 
ADDRESSES).
    NMFS prepared an initial regulatory flexibility analysis (IRFA) as 
required by section 603 of the Regulatory Flexibility Act. The IRFA, 
which is contained in the EA, describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained at the beginning of this section in the preamble 
and in the SUMMARY section of the preamble. A summary of the analysis 
follows. A copy of this analysis is available from NMFS (see 
ADDRESSES).
    The proposed rule is intended to protect an important spawning 
aggregation of yellowfin grouper, to help arrest the decline in the 
resource, and to support its recovery. The Magnuson-Stevens Act, as 
amended, provides the statutory basis for the rule.
    The proposed rule is intended to implement, on an interim basis, an 
action currently included in the Draft SFA Amendment. The SFA Amendment 
is expected to be implemented prior to the 2006 fishing year. This 
proposed rule would be an interim action providing protection of an 
important yellowfin grouper spawning aggregation during the 2005 
spawning season and would expire prior to the implementation of the SFA 
Amendment. No duplicate, overlapping or conflicting rules have been 
identified.
    There are two general classes of small business entities that would 
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, that is not dominant in its field of 
operation, and that has annual receipts up to $3.5 million per year. 
The revenue benchmark for a small business that engages in charter 
fishing is a firm with receipts up to $6.0 million.
    There are an estimated 342 registered commercial fishing vessels in 
the U.S. Virgin Islands. The majority of participants are part-time 
fishermen. Total annual average dockside revenues from commercial 
fishing activity are estimated at $1.72 million, or an average of 
$5,000 per registered vessel. Given the average revenue estimates of 
the fleet, all commercial entities are determined to be small business 
entities. It cannot be precisely determined how many of the commercial 
vessels that operate in the U.S. Virgin Islands would be affected by 
the proposed rule, though the rule would apply to all commercial 
fishing vessels. NMFS assumes that indirect impacts would be incurred 
industry-wide, and that all the commercial fishing entities that would 
be affected by the rule are small entities.
    An estimated 27 year-round charter fishing operations operate in 
the U.S. Virgin Islands, with an unknown number of seasonal operations. 
No information exists on the business profile of this fleet. However, 
the average gross revenue for charter vessels operating in Florida is 
estimated at $68,000, and ranges from $26,000 (South Carolina) to 
$82,000 (Alabama) for other areas in the southeastern U.S. No 
information exists to suggest that the revenue profile of charter 
vessels that operate in the U.S. Virgin Islands is substantially 
different from these estimates, so NMFS concludes that all charter 
vessels operating in the U.S. Virgin Islands are small business 
entities. It cannot be determined how many of the charter vessels that 
operate in the U.S. Virgin Islands would be affected by the proposed 
rule, though the rule would apply to all charter vessels. NMFS assumes 
that indirect effects would be incurred industry-wide, and that all the 
charter fishing entities that would be affected by the rule are small 
entities.
    The rule does not impose any reporting or record keeping 
requirements.
    Since the proposed rule would apply to all commercial and charter 
fishing entities and all entities operating in the fishery are assumed 
to be small entities,

[[Page 67106]]

the criterion of a substantial number of the small business entities 
will be met.
    The outcome of ``significant economic impact'' can be ascertained 
by examining two issues: disproportionality and profitability. The 
criterion for disproportionality is whether the regulations place a 
substantial number of small entities at a significant competitive 
disadvantage to large entities. All entities affected by the proposed 
rule are considered small entities so that the issue of 
disproportionality does not arise. The criterion regarding 
profitability is whether the regulations significantly reduce profit 
for a substantial number of small entities. No precise estimates of the 
profits of either the commercial fishing vessels or the charter vessels 
that are expected to be affected by the proposed rule are available. 
However, even though it is recognized that not all water habitat is 
equally productive, the proposed rule would affect only approximately 3 
percent of the available water area in the less than 100-fathom (183-m) 
depth range and close the area to fishing for only 25 percent of the 
year. Thus, less than 1 percent of available fishing area and time 
would be affected. Although it is likely that harvests from this area 
during this time period may exceed 1 percent by a negligible amount for 
certain species or fishing operations, the proposed restriction is 
expected to be sufficiently small so as to not substantially affect the 
profits of a substantial number of small entities.
    Including the no-action alternative, five alternatives were 
considered in addition to the proposed rule. The no-action alternative 
would not impose any closure in the target area, thereby allowing all 
current fishing practices. This would eliminate all short-term adverse 
impacts expected to result from the closure. However, spawning 
protection of yellowfin grouper would not be provided, thereby forgoing 
the benefits of rebuilding the stock, and the action would, therefore, 
not be consistent with the Council's intent. The remaining four 
alternatives differ in the geographic size and time duration of the 
closure. Alternative 3 would establish closure over a larger geographic 
area than the proposed rule, 17.5 nm\2\ (60 km\2\) vs. 6.88 nm\2\ 
(28.60 km\2\), but would not encompass the entire period during which 
yellowfin grouper are known to spawn, thereby potentially negating the 
purpose and effectiveness of the closure. However, potential benefits 
to coral habitats, to the extent they occur within the proposed 
boundaries, could be greater than those in Alternative 2. Alternatives 
4 and 6 would only establish closure in a 1 nm\2\ (3.4 km\2\) area, an 
area insufficient to afford the necessary protection. Alternative 4 
would additionally not encompass the full spawning period and may allow 
fishing pressure to significantly impact an aggregation that is still 
present in the latter half of April. Alternative 6 would encompass the 
entire spawning period, but would continue the closure longer than is 
believed necessary. Alternative 5 would encompass 5 nm\2\ (17.2 km\2\), 
smaller than that in Alternative 2 but possibly affording sufficient 
geographic scope. However, Alternative 5 would also extend the closure 
for an additional month, which is longer than necessary and would, 
therefore, impose unnecessary adverse impacts. In addition, potential 
benefits to coral habitats, to the extent they occur within the 
proposed boundaries, could be slightly less than those in Alternative 
2. Among the alternatives, only the proposed alternative meets the 
geographic and temporal scope necessary to meet the management 
objectives.

List of Subjects in 50 CFR Part 622

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

    Dated: November 10, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, 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.  622.33, paragraph (a)(4) is added to read as follows:


Sec.  622.33  Caribbean EEZ seasonal and/or area closures.

    (a) * * *
    (4) Grammanik Bank closed area. (i) The Grammanik Bank closed area 
is bounded by rhumb lines connecting, in order, the following points:

------------------------------------------------------------------------
 Point              North lat.                      West long.
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A        18[deg]12.40'                    64[deg]59.00'
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B        18[deg]10.00'                    64[deg]59.00'
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C        18[deg]10.00'                    64[deg]56.10'
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D        18[deg]12.40'                    64[deg]56.10'
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A        18[deg]12.40'                    64[deg]59.00'
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    (ii) From February 1, 2005, through April 30, 2005, no person may 
fish for or possess any species of fish, except highly migratory 
species, within the Grammanik Bank closed area. For the purpose of 
paragraph (a)(4) of this section, 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 bluefin, 
bigeye, yellowfin, albacore, and skipjack tunas; swordfish; sharks 
(listed in appendix A to 50 CFR part 635); white marlin, blue marlin, 
sailfish, and longbill spearfish.
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[FR Doc. 04-25430 Filed 11-15-04; 8:45 am]
BILLING CODE 3510-22-S