[Federal Register Volume 73, Number 55 (Thursday, March 20, 2008)]
[Rules and Regulations]
[Pages 14942-14945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-5655]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

RIN 0648-AU29


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Snapper-Grouper Fishery off the Southern Atlantic States; Amendment 15A

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

ACTION: Notice of agency action.

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SUMMARY: NMFS announces approval of Amendment 15A to the Fishery 
Management Plan for the Snapper-Grouper Fishery of the South Atlantic 
Region (FMP). Amendment 15A updates management reference points for 
snowy grouper, black sea bass, and red porgy based on the most recent 
stock assessments; modifies rebuilding schedules for snowy grouper and 
black sea bass; defines rebuilding strategies for snowy grouper, black 
sea bass, and red porgy; and redefines the minimum stock size threshold 
for the snowy grouper stock. The measures contained in the subject 
amendment are intended to both comply with the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) and satisfy a 
U.S. district court's rulings to establish rebuilding plans for South 
Atlantic snowy grouper and black sea bass and approve, amend or reject 
Amendment 15A by March 14, 2008.

DATES: NMFS approved Amendment 15A, without modification, on March 14, 
2008.

FOR FURTHER INFORMATION CONTACT: John McGovern, telephone: 727-824-
5305; fax: 727-824-5308; e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The South Atlantic snapper-grouper fishery 
is managed under the FMP. The FMP was prepared by the South Atlantic 
Fishery Management Council (Council) and implemented by NMFS under the 
authority of the Magnuson-Stevens Act by regulations at 50 CFR part 
622.
    On December 28, 2007, NMFS published a notice of availability of 
Amendment 15A and requested public comment (72 FR 73747). After 
considering the public comments received, NMFS approved Amendment 15A, 
without modification, on March 14, 2008. The background rationale for 
the measures in Amendment 15A are contained in the amendment and the 
notice of availability and are not repeated here.

Comments and Responses

    NMFS received 17 comment letters on Amendment 15A and the 
associated environmental impact statement. Two of these comment letters 
supported the proposed actions. The remaining comment letters opposed 
one or more of the proposed actions for the reasons summarized below.
    Comment 1: One group stated Amendment 15A should consider 
management measures to address the Magnuson-Stevens Act's requirement 
that an amendment designed to rebuild an overfished fishery must also 
allocate both overfishing restrictions and recovery benefits fairly and 
equitably among sectors of the fishery.
    Response: Amendment 15A is intended to comply with the Magnuson-
Stevens Act and satisfy a United States district court ruling that 
found a plan to rebuild snowy grouper and black sea bass should have 
been included in Amendment 13C to the FMP because the two species were 
overfished. Amendment 15A establishes the rebuilding plans but does not 
contain measures with direct regulatory effect; instead it specifies 
management reference points, a timeframe for rebuilding overfished 
stocks, and a strategy for how overfished stocks will be rebuilt within 
the specified timeframe, as required by the August 17, 2007, court 
opinion and October 2, 2007, court order. Although Amendment 13C did 
not have a

[[Page 14943]]

rebuilding plan, the amendment included measures with direct regulatory 
effect necessary to end overfishing of snowy grouper and black sea 
bass, and therefore, initiate recovery of those fisheries. The court 
determined the measures in Amendment 13C were ``fair and equitable'' 
and in compliance with national standard 4 of the Magnuson-Stevens Act. 
The Council is considering additional management measures in Amendments 
15B and 17 to ensure both overfishing restrictions and recovery 
benefits would continue to be fairly and equitably allocated among 
fishing sectors during the rebuilding periods for snowy grouper and 
black sea bass.
    Comment 2: One group of commenters supported fast-track strategies 
for fish stock recoveries. The commenters indicated such strategies 
would minimize the number of years needed for recovery, benefitting 
fish stocks as well as fishermen once stocks recovered.
    Response: The Council evaluated a broad range of alternatives for 
the establishment of rebuilding schedules for snowy grouper and black 
sea bass. A rebuilding schedule for red porgy was established through 
Amendment 12, in 2000. The alternatives considered for each proposed 
rebuilding schedule action in Amendment 15A ranged from those that 
would rebuild stocks in the shortest amount of time in the absence of 
fishing mortality to those that would rebuild stocks over the longest 
period of time allowed by the Magnuson-Stevens Act. For snowy grouper, 
the Council's preferred alternative would rebuild the stock in 34 
years, which is the maximum time allowed by the Magnuson-Stevens Act. 
However, shorter rebuilding schedules would not be expected to rebuild 
the snowy grouper stock to biomass at the maximum sustainable yield, 
even if retention was entirely prohibited due to the incidental capture 
of snowy grouper in this multi-species snapper-grouper fishery. As 
release mortality is 100 percent, it is expected these fish would still 
be caught incidentally and discarded dead when fishermen target co-
occurring species. Amendment 13C reduced the allowable catch of snowy 
grouper to the extent that fishermen are not targeting the species and 
now only retain them as incidental catch.
    The preferred rebuilding strategy alternative for snowy grouper 
would retain the total allowable catch (TAC) at 102,960 lb (46,702 kg) 
whole weight until modified by future action. By keeping TAC at this 
level, fishing mortality would decrease to levels less than the fishing 
mortality associated with the maximum sustainable yield and thereby 
increase the probability that biomass would increase.
    The preferred 10-year rebuilding schedule for black sea bass is 
also the longest allowed by the Magnuson-Stevens Act. However, the 
shortest rebuilding schedule (6 years) would not be expected to rebuild 
black sea bass to the biomass at the maximum sustainable yield, even if 
retention of black sea bass is entirely prohibited. Black sea bass is 
part of a multi-species fishery, and it is expected that these fish 
would still be caught incidentally and discarded dead when fishermen 
target co-occurring species. The Council's preferred rebuilding 
schedule would rebuild the stock to healthy levels, over a slightly 
longer time period and still within the allowable time frame, which 
would be less detrimental to the fishing community dependent on the 
resource.
    Comment 3: Two commenters stated that despite NMFS' assertion that 
the best available data were used in the analyses supporting Amendment 
15A, they remain concerned that the stock assessments do not provide 
adequate estimates of stock status.
    Response: Status determinations for snowy grouper, black sea bass, 
and red porgy were derived from the Southeast Data, Assessment and 
Review (SEDAR) process. The SEDAR process involves a series of three 
workshops designed to ensure each stock assessment reflects the best 
available scientific information. The findings and conclusions of each 
SEDAR workshop are documented in a series of reports, which are 
ultimately reviewed and discussed by the Council and its Scientific and 
Statistical Committee (SSC). SEDAR participants, Council advisory 
committees, the Council, and NMFS staff reviewed and considered these 
and other concerns about the adequacy of the data. The Council's 
snapper-grouper committee acknowledged that while stock assessment 
findings are uncertain, there is no reason to assume that uncertainty 
leads to overly pessimistic or optimistic conclusions about stock 
status. Therefore, uncertainty should not be used as a reason to avoid 
taking action. The adequacy of these data was at issue in the recent 
civil action, North Carolina Fisheries Association, Inc., et al., v. 
Carlos Gutierrez, Secretary, United States Department of Commerce, Case 
No. 06-1815 (D.D.C. 2006), where the plaintiffs claimed, among other 
things, that actions taken in Amendment 13C were inconsistent with 
national standard 2 of the Magnuson-Stevens Act, which requires that 
all FMPs and plan amendments ``be based upon the best scientific 
information available.'' The same assessment information used in 
Amendment 13C was used in Amendment 15A to specify management reference 
points, and rebuilding plans for snowy grouper, black sea bass, and red 
porgy. In the court's opinion issued in the North Carolina Fisheries 
Association case, the judge concluded ``the Secretary was not obliged 
to 'sit idly by' when faced with overfishing and overfished stocks 
simply because the data available to him may have been less than 
perfect. In sum, the Secretary's decision to act on the basis of the 
existing information easily meets the standard of rationality required 
of him.'' The NMFS' Southeast Fisheries Science Center (SEFSC) reviewed 
and certified Amendment 13C and its supporting analyses as being based 
on the best available scientific information. The SSC and the SEFSC 
have determined Amendment 15A is based on the best scientific 
information available.
    Comment 4: One commenter stated the cumulative impacts section of 
the EIS is inadequate because impacts from previous regulations on 
fishery participants in all fisheries available to them in the past 
have been ignored in the analysis.
    Response: Amendment 15A, which is integrated with the EIS, 
qualitatively discusses cumulative impacts (Section 4.5.2), and 
concludes that ``it is not possible to differentiate actual or 
cumulative regulatory effects from external cause-induced effects.'' It 
also states, ``In general, it can be stated, however, that the 
regulatory environment for all fisheries has become progressively more 
complex and burdensome, increasing, in tandem with other adverse 
influence, the pressure on economic losses, business failure, 
occupational changes, and associated adverse pressures on associated 
families, communities, and industries. Some reverse of this trend is 
possible and expected.''
    The integrated document also contains a discussion of potential 
adverse long-term socioeconomic impacts to some current fishery 
participants (Section 4.5.2). This section states that ``Where losses 
are projected, as is always the case, individual losses may be so 
severe that some entities may not be able to remain in business long 
enough to reap the benefits of a recovered stock and increased long-
term resource stability. Thus, even though the fishery as a whole may 
benefit, individual participants may suffer. However, as is also the 
case, failure to take action can result in persistent foregone economic 
benefits, or more severe corrective action with greater

[[Page 14944]]

adverse impacts if the period under which recovery is mandated is 
substantially shortened.''
    The integrated document also incorporates, by reference, discussion 
of impacts associated with the regulatory measures associated with 
Amendment 13C to the FMP.
    Comment 5: It is likely the recreational allocation of snowy 
grouper will be quite small, and any snowy grouper rebuilding schedule 
will be compromised until the Council can put into place an adequate 
method of accounting for recreational landings.
    Response: Amendment 15B to the FMP, currently under development, 
includes alternatives to address allocation of snowy grouper. 
Furthermore, Amendment 15B includes alternatives that could modify the 
regulations on the sale of bag limit caught fish and, thus, improve 
accounting of snowy grouper landings. Amendment 17 to the FMP is being 
developed to establish annual catch limits for species experiencing 
overfishing, including snowy grouper. Amendment 17 would also include 
accountability measures to ensure annual catch limits in the 
recreational and commercial sectors are not exceeded and overfishing is 
prevented where possible and mitigated if it occurs.
    Comment 6: Six individuals commented that the fishery would be best 
served by utilizing the rebuilding plan options which have the least 
effect on fishing effort and harvest as possible. They feel that the 
shorter the rebuilding schedule the more substantial socioeconomic 
impacts on fishermen will be, and they would like those impacts 
minimized as much as possible. These commenters also noted that fishing 
effort could shift to other species.
    Response: The Council's preferred rebuilding schedule alternatives 
for snowy grouper and black sea bass are the maximum length of time 
allowed by the Magnuson-Stevens Act and would have less of a negative 
short-term social and economic impact than shorter rebuilding 
schedules. Some effort shift to other fisheries could occur as a result 
of management measures imposed through Amendment 13C, however, longer 
rebuilding schedules are likely to cause less effort shifting than 
shorter rebuilding schedules, which would require more stringent 
management regulations. An 18-year rebuilding schedule for red porgy 
was specified through Amendment 12 to the FMP in 2000. Also, the 
Council considered the rebuilding strategy alternatives that would have 
the greatest benefit to the stock and result in the least short-term 
negative socioeconomic effects. Red porgy is no longer undergoing 
overfishing, and the stock is rebuilding. An increase in TAC for 2009 
reflects the improved status of the red porgy fishery.
    Snowy grouper and black sea bass are experiencing overfishing and 
are overfished. Amendment 13C implemented management measures over a 3-
year period with the intent of ending overfishing by 2009. At the 
December 2007 Council meeting, the Council elected to set the snowy 
grouper TAC at the 2008 level of 102,960 lb (46,702 kg) whole weight 
rather than increase TAC to 109,360 lb (49,605 kg) whole weight in 
2009. The Council was concerned that the 2009 TAC was based on the 
yield at FMSY, which would be considered to be a limit rather than a 
target under the reauthorized Magnuson-Stevens Act. By keeping catch at 
2008 levels, fishing mortality would decrease below FMSY and the 
probability that overfishing had ended would increase.
    The preferred rebuilding strategy for black sea bass would also 
retain TAC at the 2008 levels and could rebuild sea bass 2 years ahead 
of schedule resulting in a very large increase in the allowable catch 
once the stock is rebuilt. As a result, this alternative is expected to 
provide the greatest long-term, biological effects to the stock and 
associated ecosystem as well as significant economic benefits.
    Comment 7: One individual suggested that a more reasonable approach 
to end overfishing would be through the establishment of a two-for-one 
permit buyout program, and suggested anyone holding a permit is 
entitled to an equal allocation of fish.
    Response: A two-for-one permit buyout program would address the 
number of allowed participants over the long term but would not 
immediately or directly address overfishing. The Council implemented a 
2 for 1 permit program in 1998, and many snapper grouper species are 
still experiencing overfishing. The possibility of using a limited 
access privilege (LAP) program in the South Atlantic snapper-grouper 
fishery is being considered in Amendment 18 to the FMP. Such a program 
would further limit fishery participation and would be created with the 
intent to prevent and/or end overcapitalization of the fishery. 
Allocations for certain snapper-grouper species are being considered in 
snapper-grouper Amendment 15B, Amendment 16, and a comprehensive 
allocation amendment, which are in development.
    Comment 8: One group recommended against using the maximum amount 
of time possible under the law (T(max)) to rebuild severely depleted 
fish stocks such as snowy grouper.
    Response: Rebuilding schedules of 12 and 23.5 years (Alternatives 2 
and 3 in Amendment 15A, respectively) would not be expected to rebuild 
the snowy grouper stock to the biomass at the maximum sustainable 
yield, even if retention of snowy grouper is entirely prohibited. Snowy 
grouper is part of a multi-species fishery. Even with no harvest, one 
would expect snowy grouper to be caught incidentally and released dead 
by fishermen when co-occurring species were targeted. Snowy grouper is 
a deepwater species, and release mortality is estimated to be 100 
percent; therefore, no incidentally captured snowy grouper would 
survive. Actions taken in Amendment 13C substantially reduced the 
allowable harvest of snowy grouper to a level that would likely be 
taken incidentally. The longest rebuilding schedule allows fishermen to 
retain snowy grouper that are incidentally caught rather than release 
dead fish. Snowy grouper probably would not be able to rebuild in a 
shorter timeframe due to bycatch mortality when fishermen target co-
occurring species. The Council is considering the formation of a 
deepwater snapper-grouper unit in Amendment 17 to the FMP. The Council 
believes that managing the deepwater species as a unit would decrease 
discards of these species with high release mortality rates.
    Comment 9: One commenter stated the definition of minimum stock 
size threshold (MSST) at 0.75*SSBMSY is inappropriate and 
suggested retaining the MSST definition at (1-M)*SSBMSY.
    Response: The current definition of MSST is (1-M)*SSBMSY 
or 0.5*SSBMSY, whichever is greater, where M equals the 
natural mortality rate. The relatively low estimation of M (0.12) 
produces an MSST that is similar to SSBMSY. By modifying the 
current definition of MSST for snowy grouper to 0.75*BMSY, 
the Council is hoping to avoid a situation where the natural variation 
in recruitment causes the stock biomass to frequently alternate between 
an overfished and rebuilt condition, even if the fishing mortality rate 
applied to the stock was within the limits specified by the maximum 
fishing mortality threshold. Such a situation could create 
administrative difficulties if the overfished threshold was met and a 
rebuilding plan was unnecessarily triggered. Regardless of which MSST 
definition is chosen, snowy grouper is overfished and biomass is well 
below the threshold that would trigger a rebuilding plan. The recent 
SEDAR

[[Page 14945]]

assessment estimates current biomass of snowy grouper at 18 percent of 
SSBMSY.
    Comment 10: Several commenters objected to the modified F 
rebuilding strategies because they either fail to achieve optimum 
yield, or fail to prevent overfishing by using TACs set at 
FMSY.
    Response: Achievement of OY has been specified in Amendment 15A 
through the selection of the preferred rebuilding strategy alternatives 
for snowy grouper, red porgy, and black sea bass. An estimate of OY is 
the target when a stock is rebuilt and plans can transition from 
rebuilding to OY management. OY for each of the subject species has 
been defined in the amendment. The preferred rebuilding strategies are 
expected to achieve the OY target for each species within the 
rebuilding schedule time frame, while minimizing to the extent 
practicable, adverse socioeconomic impacts.
    Prior to December 2007, the preferred rebuilding strategy for snowy 
grouper was based on the yield at FMSY. However, in response 
to comments from The Ocean Conservancy, the Council, at its December 
2007 meeting, added a new sub-alternative for snowy grouper that would 
not increase the TAC; thereby setting yield based on a fishing 
mortality rate less than FMSY. By leaving the TAC at the 
2008 level, the allowable fishing mortality rate will decrease below 
FMSY and increase the chance overfishing will end and the stock will 
rebuild. In addition, based on the reauthorized Magnuson-Stevens Act, 
it would be difficult to justify increasing the TAC before a stock 
assessment indicates overfishing is ended. A 2010 assessment update for 
snowy grouper will determine if management measures have been effective 
in ending overfishing, and if so, warrant a subsequent increase in TAC, 
which would help achieve optimum yield.
    The TAC for red porgy, as specified through the preferred 
rebuilding strategy alterative is set below the yield when fishing at 
MSY and will result in a fishing mortality rate that approximates 
FOY. For black sea bass, the TAC in 2009 is established at 
the yield when fishing at MSY. However, with the preferred constant 
catch strategy, the TAC for 2009 (847,000 lb (384,193 kg whole weight) 
would remain in effect beyond 2009 until modified. Holding catch at 
constant levels as the stock rebuilds would be expected to gradually 
reduce the fishing mortality rate to FOY by 2010, increasing 
the chance overfishing will end and the stock will rebuild. The 
preferred rebuilding strategy alternatives for snowy grouper, red 
porgy, and black sea bass are expected to provide the greatest long-
term, biological effects to the stocks and associated ecosystem 
throughout their entire rebuilding time frames.
    Comment 11: Any fishery management plan must include measures that 
minimize bycatch and unavoidable bycatch mortality to the extent 
practicable. Amendment 15A does not contain any discussion of bycatch 
reduction in the deepwater complex.
    Response: Although no measures in the amendment involve regulatory 
changes, the preferred rebuilding alternative for red porgy that would 
increase TAC beyond 2008 levels accounts for an estimate of increase in 
dead discards. Preferred rebuilding strategies for snowy grouper and 
black sea bass keep TAC at 2008 levels; however, other alternatives 
considered that increase TAC in 2009 account for an increased estimate 
of dead discards that could occur. In addition, Amendment 15A contains 
a discussion on bycatch of snowy grouper in the bycatch practicability 
section and includes estimates of the magnitude of bycatch that are 
currently occurring in the commercial and recreational sectors. 
Furthermore, Appendix E to Amendment 15A provides estimates of dead 
discards that could occur in fisheries for snowy grouper, black sea 
bass, and red porgy as a result of new management measures imposed 
through Amendment 13C. Discussion in Amendment 15A also indicates snowy 
grouper bycatch could be reduced through future actions in Amendment 
17. Alternatives in Amendment 17 include actions to establish a 
deepwater unit composed of co-occurring species and would establish 
management measures for the deepwater unit including an aggregate trip 
limit and a quota. Alternatives would also consider prohibiting all 
purchase and sale of species in the unit after any of the individual 
quotas are met. Although some bycatch of species in the unit could 
occur when targeting shelf edge species, management of the deepwater 
species as a unit is expected to substantially reduce bycatch of snowy 
grouper. Amendment 17 would also establish ACLs and accountability 
measures for snowy grouper and other species experiencing overfishing, 
further reducing bycatch.
    Comment 12: One individual stated that Amendment 15A would prevent 
the remaining fishermen from making a living, and would increase the 
cost of fish.
    Response: Retaining existing values for the reference points and 
subsequent allowance of harvest at the respective MSY value may lead to 
excessive exploitation, precipitating imposition in the future of more 
restrictive management measures and reductions in economic and social 
benefits. Once the resource is rebuilt, consistent with the rebuilding 
plans in Amendment 15A, the specification of MSY/OY and the related 
increase in total allowable harvest and reduced harvest restrictions 
would support increased economic and social benefits of the fishery.

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

    Dated: March 14, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E8-5655 Filed 3-19-08; 8:45 am]
BILLING CODE 3510-22-S