[Federal Register Volume 75, Number 33 (Friday, February 19, 2010)]
[Rules and Regulations]
[Pages 7361-7367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2808]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 090122043-0025-02]
RIN 0648-AX37


Gray's Reef National Marine Sanctuary Regulations on the Use of 
Spearfishing Gear

AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean 
Service (NOS), National Oceanic and Atmospheric Administration (NOAA), 
Department of Commerce (DOC).

ACTION: Final rule.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
issuing a final rule to prohibit the use of spearfishing gear in Gray's 
Reef National Marine Sanctuary (GRNMS or sanctuary). Possession of 
spearfishing gear is also prohibited except for vessels passing through 
the sanctuary without interruption, and only when the gear is stowed 
and not available for immediate use. Spearfishing can selectively 
target larger fish, and can significantly reduce abundance and alter 
the relative size structure of target species toward smaller fish. In 
addition, spearfishing can impact ecosystem health by altering the 
composition of the overall natural communities of species. The largest 
fish are important as predators in maintaining a balanced and complete 
ecosystem; their selective removal may cause ecological imbalance. 
Therefore, the prohibition provides protection to the fishes and 
natural live-bottom community for which the sanctuary was designated. 
The final rule also facilitates enforcement of an existing prohibition 
against the use of powerheads within the sanctuary. An environmental 
assessment has been prepared for this proposed action.

DATES: Effective Date: These regulations are effective on March 22, 
2010.

ADDRESSES: Copies of the environmental assessment and the socio-
economic study described in this rule are available upon request to 
Gray's Reef National Marine Sanctuary, 10 Ocean Science Circle, 
Savannah, GA 31411, Attn: Dr. George Sedberry, Superintendent. These 
documents can also be viewed on the Web and downloaded at http://graysreef.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Stewardship Coordinator Becky 
Shortland at (912) 598-2381.

SUPPLEMENTARY INFORMATION:

I. Background

A. Gray's Reef National Marine Sanctuary

    GRNMS was designated as the nation's fourth national marine 
sanctuary in 1981 for the purposes of protecting the quality of its 
unique and fragile ecological community; promoting scientific 
understanding of the live bottom ecosystem; and enhancing public 
awareness and wise use of this significant regional resource. GRNMS 
protects 16.68 square nautical miles of open ocean and submerged lands 
of particularly dense and nearshore patches of productive live bottom 
habitat. The sanctuary is influenced by complex ocean currents and 
serves as a mixing zone for temperate (colder water) and sub-tropical 
species. The series of rock ledges and sand expanses has produced a 
complex habitat of caves, burrows, troughs, and overhangs that provide 
a solid base upon which a rich carpet of temperate and tropical marine 
flora and fauna attach and grow.
    This flourishing ecosystem attracts mackerel, grouper, black sea 
bass, angelfish, and a host of other fishes. An estimated 180 species 
of fish, encompassing a wide variety of sizes, forms, and ecological 
roles, have been recorded at GRNMS. Loggerhead sea turtles, a 
threatened species, use GRNMS year-round for foraging and resting, and 
the highly endangered northern right whale is occasionally seen in 
Gray's Reef. GRNMS is one of the most popular sportfishing areas along 
the Georgia coast.

B. Need for Action

    This regulation is being promulgated for two reasons. First, the 
action provides greater protection to sanctuary resources by removing a 
gear type that can be used to selectively target larger fish, and can 
thereby negatively alter the size structure of fish populations. While 
the number of recreational divers spearfishing at GRNMS appears to be

[[Page 7362]]

small, spearfishing is a highly efficient harvesting gear that allows 
larger fish to be selectively targeted relative to other fishing gears. 
Such fishing can significantly reduce abundance and alter the relative 
size structure of target species toward smaller fish. Some fish 
populations that are present in GRNMS are regionally overfished or 
approaching overfished status and researchers have commented on the 
lack of large snapper-grouper individuals at GRNMS.
    Second, the action facilitates improved enforcement of an existing 
prohibition against the use of powerheads within the sanctuary. 
Powerheads, also sometimes referred to as bang sticks or shark sticks, 
are a specialized type of firearm intended for use underwater that 
employ an ammunition cartridge that fires upon direct contact with the 
target. Powerheads are often attached to the end of a spear gun and 
used for spear fishing, or may be used for self-defense underwater. 
Under existing GRNMS regulations, it is unlawful to injure, catch or 
harvest any marine resource within the sanctuary, by using a powerhead 
(50 CFR 922.02(a)(5)(i)).
    Law enforcement officials have expressed the need to prohibit all 
spearfishing to enable them to more effectively enforce the existing 
powerhead prohibition. Although NOAA has prohibited the use of 
powerheads since the 1981 GRNMS designation, powerhead spear tips and 
spent shells are still found in GRNMS. Spearguns with a powerhead and 
without a powerhead are similar in appearance, which can make it much 
more difficult to detect and prove a violation of the powerhead 
prohibition. Prohibiting spearfishing in the sanctuary would make the 
restriction against powerheads more enforceable by law enforcement 
officers.

C. Previous Regulatory Action Regarding Spearfishing Gear

    NOAA considered regulating spearfishing during the original 
management plan of 1981, but only spearfishing with powerheads was 
prohibited at the time. A complete spearfishing prohibition was again 
considered during the review and revision of the GRNMS Management Plan 
beginning in 1999. Along with the fact that visitor use had increased 
(primarily recreational fishing), evidence of powerhead use (despite 
the 1981 ban) created a growing concern. NOAA proposed to prohibit all 
spearfishing activities with the 2003 Draft Environmental Impact 
Statement/Draft Management Plan (DEIS/DMP) and associated proposed rule 
(68 FR 62033, October 31, 2003).
    However, after consideration of public comments on the DEIS/DMP, 
NOAA concluded that additional socioeconomic information was needed and 
thus deferred any regulatory action on spearfishing. The 2006 Final 
EIS/MP instead included a commitment to gather additional socioeconomic 
information on spearfishing in GRNMS and review the issue again in two 
years.
    Additional socioeconomic information was collected, analyzed and 
presented to the Sanctuary Advisory Council in September 2007. That 
information indicates no charter spearfishing activity and only a very 
small amount of private spearfishing activity within the GRNMS. 
Moreover, abundant opportunities to conduct spearfishing in nearby 
locations outside the sanctuary already exist. Copies of this report 
are available at the address and Web site listed in the ADDRESSES 
section of this rule.

D. Participation of the South Atlantic Fishery Management Council 
(SAFMC)

    In accordance with Section 304(a)(5) of the NMSA (16 U.S.C. 
1434(a)(5)) GRNMS provided the South Atlantic Fishery Management 
Council with the opportunity to prepare spearfishing regulations for 
the sanctuary.
    In 2003, the SAFMC agreed with NOAA that spearfishing should be 
prohibited in the sanctuary and requested that NOAA promulgate the 
regulations. As previously discussed, however, after consideration of 
public comments on the Draft Environmental Impact Statement/Draft 
Management Plan (DEIS/DMP) and the proposed rule, NOAA concluded that 
additional information was needed and thus deferred taking regulatory 
action on spearfishing for two years. The final rule (71 FR 60055, 
October 12, 2006) stated that NOAA would assess socioeconomic factors 
of spearfishing in GRNMS and would conduct a study to determine the 
level of spearfishing and other fishing activities. NOAA would then 
determine what action to take, if any, given the additional data.
    NOAA presented an update of this issue, including the additional 
socioeconomic information that had been collected, at the October 2007 
meeting of the Joint Habitat/Ecosystem Based Management Advisory Panel 
of the SAFMC and again at the December 2007 and March 2008 SAFMC 
meetings. In June 2008, NOAA provided the SAFMC with the opportunity to 
prepare draft sanctuary fishing regulations concerning spearfishing 
activities for GRNMS, recommending that the Council prohibit 
spearfishing. The SAFMC again concurred with the proposed ban on 
spearfishing, and requested that NOAA prepare the regulations.

II. Summary of the Changes to the Regulations

    This rule amends the regulations for GRNMS by prohibiting the use 
of all spearfishing gear in the Sanctuary. Specifically, this rule 
eliminates the phrase ``spearfishing gear without powerheads'' from the 
list of allowable gear set forth at 15 CFR 922.92(a)(5)(i). This action 
also prohibits the possession of spearfishing gear in GRNMS, except 
when stowed on a vessel and not available for immediate use, and only 
while passing through the Sanctuary without interruption. Section 
922.91(6) has also been revised for greater clarity and to correct an 
unintended result that was contained in the proposed rule (74 FR 9378, 
March 4, 2009). As proposed, possession of all fishing gear except rod 
and reel and handline gear would have been allowed in the Sanctuary 
only if it was stowed on a vessel, not available for immediate use, and 
only if the vessel was passing through the Sanctuary without 
interruption. As revised, the language of the amended regulation is 
consistent with the current regulations that were promulgated in 2006 
and reflects NOAA's intent to allow vessels to enter and stop in the 
Sanctuary with types of fishing gear on board other than rod and reel 
and handline gear, (except spearfishing gear), provided that the gear 
is stowed and not available for immediate use. The requirement for 
uninterrupted passage is being applied only to vessels with 
spearfishing gear on board to facilitate enforcement of the 
prohibitions against spearfishing and the use of powerheads, as 
explained in greater detail in the responses to comments.
    These and all regulations issued pursuant to the National Marine 
Sanctuaries Act are applied in accordance with generally recognized 
principles of international law, and in accordance with treaties, 
conventions, and other agreements to which the United States is a 
party. No regulation shall apply to or be enforced against a person who 
is not a citizen, national, or resident alien of the United States, 
unless in accordance with: (1) Generally recognized principles of 
international law; (2) an agreement between the United States and the 
foreign state of which the person is a citizen; or (3) an agreement 
between the United States and the flag state of a foreign vessel, if 
the person is a crewmember of the vessel (16 U.S.C. 1435).

[[Page 7363]]

III. Classification

A. National Environmental Policy Act

    NOAA has prepared an environmental assessment to evaluate the 
impacts of the rulemaking. A finding of no significant impact was 
issued on December 23, 2009. Copies are available at the address and 
Web site listed in the ADDRESSES section of this rule.

B. Executive Order 12866: Regulatory Impact

    This final rule has been determined to be not significant within 
the meaning of Executive Order 12866.

C. Executive Order 13132: Federalism Assessment

    NOAA has concluded this regulatory action does not have federalism 
implications sufficient to warrant preparation of a federalism 
assessment under Executive Order 13132.

D. Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this final rule would not have a significant 
economic impact on a substantial number of small entities. The factual 
basis for the certification was published with the proposed rule. No 
comments were received regarding this certification.

E. Paperwork Reduction Act

    This final rule does not require any additional collection of 
information, and therefore no paperwork reduction act action is 
required. Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

IV. Responses to Public Comments

    1. Comment: The proposed rule should not be adopted.
    Response: As a result of a thorough review of data, literature, 
surveys, and public and expert comment, NOAA has determined the 
proposed rule should be adopted to better protect sanctuary resources 
and facilitate the enforcement of the existing prohibition against the 
use of powerheads. Spearfishing can be used to selectively target 
larger fish, and can significantly reduce abundance and alter the 
relative size structure of target species toward smaller fish. In 
addition, spearfishing can impact ecosystem health by altering the 
composition of the overall natural communities of species. The largest 
fish are important as predators in maintaining a balanced and complete 
ecosystem; their selective removal may cause ecological imbalance. 
Therefore, prohibition of all spearfishing gear in GRNMS will provide 
needed protection to the fishes and the overall natural live-bottom 
community for which the sanctuary was designated. In addition, the 
combination of the absence of charter spearfishing activity at GRNMS 
and the abundant substitution opportunities nearby lead to the 
conclusion that a prohibition on spearfishing at GRNMS would result in 
no measurable economic impact.
    2. Comment: The proposed action will set a precedent of 
compromising fishing rights.
    Response: NOAA disagrees that the action establishes a precedent. 
NOAA considers the need for regulations in each national marine 
sanctuary individually, based on a rigorous analysis of the 
circumstances at each location. The promulgation of a regulation in one 
sanctuary does not automatically result in an export of that regulation 
to other sanctuaries.
    3. Comment: The decision to ban spearfishing gear in GRNMS was made 
on biased, unsubstantiated information; the action is unwarranted, 
discriminatory and arbitrary.
    Response: NOAA disagrees. As noted in the response to comment 
1, the action to ban spearfishing was carefully considered 
after evaluation of the best science available. The proposed rule is 
based on multiple, scientifically-sound, peer-reviewed studies of the 
biological impacts of spearfishing activities in numerous locations 
around the world.
    The socioeconomic surveys and analysis methods were based on OMB-
approved guidelines. These methods have been used in the past for other 
socioeconomic studies (e.g.: FKNMS, CINMS and Dry Tortugas Ecological 
Reserve in Florida.) The purpose of the socioeconomic review--which 
showed there would be little economic impact--was not to enumerate the 
number of spearfishermen, but to evaluate the overall economic impact 
of a ban, including alternatives to a ban.
    In addition, GRNMS has learned that allowing spearfishing makes it 
difficult to enforce the prohibition against powerheads, due to the 
similarity in the gear. The decision to prohibit spearfishing is 
justified for this separate, additional reason. See response to comment 
16, below.
    4. Comment: Data are unclear or unknown regarding the percentages 
of take between spearfishing and rod and reel fishing.
    Response: NOAA acknowledges that the percentage of take between 
spearfishing and rod and reel fishing is unknown, not only in GRNMS, 
but regionally. The current level of spearfishing activity at GRNMS is 
anticipated to be low and the corresponding level of take could also be 
low. It is known that rod and reel fishing comprises the majority of 
recreational fishing at GRNMS with the majority of rod and reel 
fishermen targeting coastal pelagic species around and during 
tournaments.
    However, impacts from spearfishing and impacts from rod and reel 
fishing differ. Scientific evidence indicates that larger fish are 
favored targets of recreational spearfishermen. Spearfishing allows 
fishermen to more effectively select for larger individuals within 
target species populations. Spearfishing has been shown to remove 
greater biomass of reef fishes than rod and reel fishing relative to 
effort expended. Scientific research has also found that the intrinsic 
vulnerability of fish populations under pressure is exacerbated by 
spearfishing. SCUBA-supported spearfishing is likely to have a 
significantly greater catch per unit effort than non-SCUBA-supported 
spearfishing. The effectiveness and efficiency of SCUBA-supported 
spearfishing has resulted in bans on this activity in numerous parts of 
the world.
    5. Comment: Fishing regulatory discard figures in the rulemaking 
are wrong.
    Response: NOAA has reconsidered the 3 percent figure that was cited 
in the draft environmental assessment as regulatory discards by 
spearfishing. This figure does not apply to this action because the 
discards in the referenced study included lobster, which are not known 
to be a target of spearfishing at GRNMS. Nevertheless, the best 
available data on regulatory discards (fish caught but discarded due to 
size restrictions) indicates that a small percentage of fish speared 
may be discarded and that some percentage of fish also escape with 
spear induced injuries.
    6. Comment: GRNMS lacks sufficient baseline data to determine the 
effect of the prohibition on spearfishing over time.
    Response: NOAA disagrees that there is a lack of baseline 
information on fish size and abundance. NOAA has conducted visual fish 
censuses for almost 20 years, resulting in information on fish size and 
abundance in the sanctuary. NOAA anticipates that future censuses will 
provide information that can be used to detect a change in fish size 
and abundance over time.

[[Page 7364]]

    7. Comment: GRNMS's assumption that spearfishing targets larger, 
more reproductively-valuable fish is incorrect for the following 
reasons:
     There is no scientific evidence that spearfishing targets 
larger fish and that taking larger fish decreases reproductive capacity 
of breeding stock;
     There is no scientific evidence to show there is more 
impact on specific kinds and sizes of fish from spearfishing than rod 
and reel fishing;
     Spearfishermen must harvest larger fish due to catch size 
limits;
     Spearfishermen do not harvest the larger fish because fish 
swim away from spearfishermen;
     Spearfishermen can harvest the largest and most prolific 
species in tropical clear water, but not in waters off Georgia where 
visibility is poor and target species are migratory in nature;
     The lack of larger individual fish at GRNMS may be due to 
lack of food supply and not spearfishing.
    Response: Scientific evidence indicates that larger fish are 
favored targets of recreational spearfishermen. Spearfishing also 
allows fishermen to more effectively select for larger individuals 
within target species populations.
    Spearfishing is an efficient harvesting activity that can 
significantly alter abundance and size structure of target species 
toward fewer and smaller fish by selective removal of larger individual 
fish. The removal of larger individual fish of the target species 
leaves behind smaller individuals to spawn. Over time this can decrease 
the size and age at sexual maturity and decrease the average size of 
the population.
    Studies of areas where fishing pressure has been removed have shown 
that populations of spearfishing target species, often larger predatory 
fish such as snapper and grouper, have improved in size distribution 
and, often, in fish abundance. While a ban on spearfishing would result 
only in the removal of a small amount of fishing pressure at GRNMS, 
NOAA believes that the removal of selected targeting of larger 
predatory fish, which is typical of spearfishing, may result in more 
robust populations.
    In addition, selectively removing larger individuals from 
populations of protogynous (sex-changing) species can make such 
populations susceptible to sperm limitation. This is especially true 
for species such as gag grouper, a regionally overfished, protogynous 
resident of GRNMS, that form small spawning aggregations. Vulnerable 
pre-spawning aggregations of gag occur at GRNMS.
    Reduction in the larger predatory fishes can also have a ``top-
down'' effect on fish assemblages by allowing other fish populations to 
increase, altering the composition of the overall natural community of 
species, including invertebrates. The largest fish are important as 
predators in maintaining a balanced and complete ecosystem; their 
selective removal may cause ecological imbalance.
    Many snapper-grouper species of fish are regionally overfished or 
undergoing overfishing. All indications are that large individuals of 
the targeted snapper-grouper species in GRNMS are already limited. 
Large individual snapper-grouper fish are a source of reproductive 
abundance for the sanctuary. Recent research using tagging techniques 
is showing a high amount of site fidelity, versus migratory behavior, 
by individual snapper and grouper fish at GRNMS. All indications are 
that food supply for the top predator fish species is abundant in 
GRNMS.
    Other studies of acoustically-tagged snapper and grouper fish in 
GRNMS also seem to indicate site fidelity, making these resident fish 
more vulnerable to spearfishing. Although the overall level of 
spearfishing at GRNMS is low, recent research suggests that a very low 
level of increased fishing pressure on the sanctuary's ledges could 
reduce local abundance of snapper-grouper complex species within a 
short amount of time. Compared to the no action alternative, the 
proposed action is expected to prevent potential negative impacts to 
the sanctuary's large predatory fish species. This may in turn have a 
positive effect on the larger ecosystem as a whole by maintaining its 
natural balance.
    NOAA has found no scientific references indicating decreased 
visibility changes the preference of larger fish as the target for 
spearfishermen, or that spearfishermen are unable to harvest larger 
fish because the larger fish swim away from them.
    8. Comment: A study of private, boat-based spearfishing should be 
done to show the full socioeconomic impact of the proposed rule.
    Response: Although NOAA did not conduct a study of private, boat-
based spearfishing, the socioeconomic study showed the existence of 
adequate substitution areas for spearfishing in the vicinity of GRNMS 
for charter boats. This suggests that there are nearby opportunities as 
well for private-boat based spearfishing. Therefore, NOAA believes that 
any potential displacement caused by the proposed action could be 
mitigated by the presence of substitution areas.
    9. Comment: Spearfishing opportunities are limited outside of 
GRNMS; GRNMS is best location for small boats.
    Response: The socioeconomic survey shows there are multiple--and 
preferred--substitution areas to spearfish in the vicinity. Some of 
these are at a shorter distance from shore than GRNMS and thus a good 
destination for smaller boats.
    10. Comment: The proposed rule is unnecessary because there are so 
few people spearfishing in GRNMS; therefore, the no action alternative 
is preferred.
    Response: While the current number of divers spearfishing within 
GRNMS appears to be small, as stated above (see response to comment 
7), spearfishing is an efficient harvesting gear that 
selectively targets larger fish relative to other fishing gears and can 
significantly alter abundance and size structure of targeted species 
toward fewer and smaller fish. Prohibition of all spearfishing gear in 
GRNMS will enhance enforcement for the prohibition against the use of 
powerheads. Allowing spearfishing at any level undermines the 
enforcement of this restriction. In addition, although the overall 
level of spearfishing at GRNMS is low, recent research suggests that a 
very low level of increased fishing pressure on the sanctuary's ledges 
could reduce local abundance of snapper-grouper complex species within 
a short amount of time.
    11. Comment: NOAA should establish zones in the sanctuary where 
spearfishing would be allowed and zones where spearfishing would be 
prohibited instead of banning spearfishing gear throughout the 
sanctuary; or NOAA should at least conduct controlled impact studies of 
spearfishing in GRNMS.
    Response: Given the priorities for resource protection and research 
and the relatively small size of GRNMS, zoning for allowed and 
prohibited spearfishing activities would be less effective, more 
difficult to enforce, and provide less protection to sanctuary 
resources. The costs associated with zoning (e.g., controlled impact 
studies, outreach and public awareness) and the complexities for user 
compliance and law enforcement would also complicate management of the 
sanctuary.
    12. Comment: Spearfishing is beneficial and should not be 
eliminated from GRNMS for the following reasons:
     Spearfishing is a selective form of fishing with no 
bycatch;
     There is no marine debris associated with spearfishing;
     Spearfishermen could contribute to research data.

[[Page 7365]]

    Response: NOAA acknowledges that spearfishing generates little 
marine debris. Nevertheless, spearfishing gear and ammunition shells 
associated with powerhead use have been found discarded (i.e., debris) 
on the bottom at GRNMS. The properties of spearfishing gear are quite 
selective and thus could result in low waste (e.g., regulatory discards 
or bycatch). As stated above (see response to comment 5) NOAA 
has determined that the operation of spearfishing gear can result in 
some regulatory discard. Also, the benefit of selectivity is dependent 
upon what the fisherman is selecting for and the ability of the 
targeted fish population to sustain the pressure. As noted above, the 
selectivity of spearfishing gear allows spearfishermen to often remove 
large individuals within the target population. A slight increase in 
the fishing pressure at GRNMS could lead to significant impact. Studies 
of areas where fishing pressure has been removed have shown that 
populations of spearfishing target species, often larger predatory fish 
such as snapper and grouper, have improved in size distribution and, 
often, in fish abundance. Studies also show that spearfishing can alter 
fish behavior. Fish are learning to hide from divers and sometimes move 
to less beneficial habitat as a result.
    13. Comment: The proposed rule would unfairly restrict the number 
of fish allocated to spearfishermen and unfairly restrict access to 
spearfishing harvest.
    Response: As described above in the responses to comments 8 and 9, 
numerous and preferred alternatives exist in the vicinity of GRNMS for 
charter spearfishing, thus access and harvest opportunities are not 
unfairly restricted.
    14. Comment: The proposed rule punishes law-abiding spearfishermen 
who don't use prohibited powerheads in GRNMS.
    Response: The reason for this action is not only to facilitate 
enforcement of the powerhead ban. It is also to protect sanctuary 
resources from the impacts of all spearfishing activities.
    15. Comment: If spearfishing is banned in GRNMS, rod and reel 
fishing should also be banned; where fishing is allowed, spearfishing 
should be allowed.
    Response: Impacts from spearfishing and impacts from rod and reel 
fishing differ. See response to comment 7 above.
    16. Comment: The law enforcement rationale to prohibit spearfishing 
gear in GRNMS is flawed for the following reasons:
     Spearfishermen using powerheads and powerheaded fish 
should be easy to detect;
     The fact that there have been no law enforcement cases 
made in GRNMS of spearfishermen using powerheads indicates that 
powerhead use is not an issue;
     Evidence of powerhead use in GRNMS is unsubstantiated;
     Prohibiting the use of spearfishing gear will not result 
in effective law enforcement due to limited law enforcement resources.
    Response: Although the use of powerheads is prohibited at GRNMS, 
powerhead spear tips and spent shells found in the sanctuary indicate 
that this gear has been used since the ban went into place. Powerheads 
are so closely associated with spearguns that it is difficult to 
determine from a distance whether a speargun has a powerhead. Because 
the powerhead may be removed without detection upon approach by 
enforcement, there may be difficulties proving that a speargun with a 
powerhead was in the sanctuary. Proof may not be self-evident from the 
fish itself, which may require forensic testing to determine, if 
possible, the method of injury or harvest sufficient for evidentiary 
purposes. Law enforcement officials have expressed the desire to 
prohibit the use of all spearguns in order to effectively enforce the 
powerhead prohibition. While NOAA acknowledges the need to increase 
enforcement presence in sanctuaries in general, the proposed action 
will better protect resources within the sanctuary by facilitating 
effective enforcement of the existing prohibition against the use of 
powerheads.
    17. Comment: Law enforcement efforts should be increased to address 
concerns on the use of powerheads instead of banning all spearfishing 
gear.
    Response: See response to comment 16 above. The way that 
powerheads are designed and used make them difficult to distinguish 
from spearguns that are not equipped with powerheads. Increasing 
enforcement effort for an activity that may be extremely difficult to 
detect is also not an efficient or reasonable approach to addressing 
the issue.
    18. Comment: Spearfishing gear (i.e., powerhead) is easily stowed 
away when not in use, so enforcement relies largely on the rare 
coincidence of an officer watching while spearfishing gear is pulled 
out or is already in use.
    Response: NOAA agrees that there is difficulty in enforcing the 
existing regulation prohibiting spearfishing with a powerhead because 
the gear can be easily concealed or discarded without detection. See 
response to comment 19.
    19. Comment: A complete ban on spearfishing gear in GRNMS will aid 
law enforcement in the sanctuary; powerhead equipment can be jettisoned 
without notice during an approach by law enforcement personnel.
    Response: NOAA agrees that law enforcement will be greatly enhanced 
with a prohibition on all spearfishing gear and with the ``no 
stopping'' provision for transit if spearfishing gear is on board. As 
noted above, illegal powerhead spearfishing is difficult to detect when 
spearfishing gear is allowed. Powerheads are generally small 
attachments to spearfishing gear that allow the use of ammunition 
cartridges to harvest fish. The close association between a speargun 
and a powerhead makes it difficult for law enforcement officers to 
detect from a distance. A powerhead can also easily be jettisoned, 
hidden or dropped into the water.
    20. Comment: NOAA should prohibit all non-research activities in 
GRNMS to enhance law enforcement capacity, which is subject to 
insufficient resources, and to achieve the purposes of the NMSA and 
GRNMS designation.
    Response: The scope of this action is limited to problems related 
to spearfishing and enforcement of the prohibition of powerhead 
spearfishing in particular. Prohibiting spearguns is necessary to 
ensure adequate law enforcement of the powerhead prohibition. In 
addition to the primary purpose of resource protection under the 
National Marine Sanctuaries Act (NMSA), one of the purposes of the 
national marine sanctuaries is to ``to facilitate to the extent 
compatible with the primary objective of resource protection, all 
public and private uses of the resources of these marine areas not 
prohibited pursuant to other authorities'' (16 U.S.C. 1431(b)(6)). 
Therefore, NOAA believes that banning all recreational activities 
throughout GRNMS to enhance law enforcement is not consistent with the 
purposes and policies of the NMSA.
    21. Comment: No fishing of any kind should be permitted in any 
marine sanctuary.
    Response: Each sanctuary in the national marine sanctuary system is 
unique. One of the purposes and policies of the NMSA is to ``facilitate 
to the extent compatible with the primary objective of resource 
protection, all public and private uses of the resources of these 
marine areas not prohibited pursuant to other authorities.'' Given this 
mandate, NOAA must consider all uses of a marine sanctuary and make a

[[Page 7366]]

case-by-case determination of compatibility with the Act's primary 
objective of resource protection.
    22. Comment: Spearfishing is a threat to the purpose and goals of 
GRNMS and the primary purpose of resource protection.
    Response: NOAA agrees that given the circumstances and conditions 
at GRNMS continued spearfishing, particularly with powerheads, would 
make harvest of large snapper-grouper species more likely and could 
complicate achievement of GRNMS goals as outlined in the purposes for 
designation of the sanctuary and in the purposes and policies of the 
NMSA.
    23. Comment: Although NOAA appears unable to provide specific data 
as to the quantity of spearfishing that occurs in GRNMS, a spearfishing 
ban will likely address at least one of the causes for declines in 
larger fish and fish populations and is worth adopting.
    Response: As noted above, impacts from spearfishing and impacts 
from rod and reel fishing differ. Spearfishing has generally been shown 
to target larger fish and remove more biomass per unit of effort than 
recreational fishermen using rod and reel gear. A recent 2008 study 
found that free-diving (non-SCUBA) spearfishermen removed larger fish 
than rod and reel fishermen and that they removed more biomass per unit 
of effort, if baitfish are excluded. The study also noted that SCUBA-
supported spearfishing is likely to have a significantly greater catch 
per unit of effort than that found in their study. The intrinsic 
vulnerability of fish populations under pressure is exacerbated by 
spearfishing. The effectiveness and efficiency of SCUBA-supported 
spearfishing have resulted in bans on this activity in numerous parts 
of the world.
    A ban on spearfishing will protect resources. NOAA will continue to 
monitor fish size and abundance in GRNMS after the prohibition is in 
place, using that information to detect changes to the larger fish 
population over time. NOAA agrees that a ban on all spearfishing gear 
in GRNMS and a provision to transit without stopping if spearfishing 
gear is on board a vessel will enhance NOAA's ability to protect fish 
and other natural marine resources, particularly fish of the snapper-
grouper species complex which are in decline regionally.
    24. Comment: There should be no spearfishing allowed in GRNMS; a 
decline in abundance and size of targeted fish species in GRNMS is 
cause to ban spearfishing gear.
    Response: NOAA has determined that the preferred alternative to 
prohibit all spearfishing gear in GRNMS will enhance the capabilities 
of law enforcement to protect resources such as large, reproductively-
valuable individual fish in the sanctuary. Compared to the no action 
alternative, the proposed action is expected to prevent potential 
negative impacts, and as a result to improve, measurably but not 
significantly, the condition of sanctuary's biological resources.
    According to NOAA's National Marine Fisheries Service, some reef-
associated fish species are regionally overfished (snowy grouper, black 
sea bass and red porgy), approaching overfished status (gag) and/or 
undergoing overfishing (vermilion snapper, red snapper, snowy grouper, 
red grouper, black sea bass, gag, speckled hind, warsaw grouper, 
tilefish and black grouper). Gag and scamp have decreased in abundance 
in visual census transects at GRNMS, and length-frequency measurements 
of black sea bass, gag and scamp (from trap and visual census data) 
indicate that a large portion of the population is removed upon 
reaching minimum size, either by fishing or by migration out of the 
sanctuary. The reduced abundance of selected key species may inhibit 
full community development and function in GRNMS.
    25. Comment: Spearfishing by its nature encourages taking of 
reproductively mature (larger), more successful members of the 
fisheries communities at GRNMS; therefore, spearfishing should be 
banned in GRNMS.
    Response: NOAA agrees. See response to comment 7.
    26. Comment: Spearfishing activities are increasing; there is more 
efficiency with the current use of camouflage wetsuits, mirrored lenses 
in dive masks, and more powerful spearguns.
    Response: NOAA shares concerns expressed by this commenter that 
gear is available to spearfishing enthusiasts for the purpose of 
increasing spearfishing harvest efficiency. That concern highlights the 
need to protect the limited resources in GRNMS from activities that 
could reduce predator fish abundance thus altering the natural live-
bottom community of the sanctuary.
    27. Comment: How will the presence of increased numbers of large 
predatory fish impact other smaller fish species and the availability 
of food for other residents of the reef?
    Response: Increased numbers of large predatory fish in GRNMS would 
be expected to result in a more natural community balance. Scientists, 
in fact, have commented on the absence of numbers of large predatory 
fish which would be expected to be found in GRNMS. Reduction/absence in 
the larger predatory fishes can have a ``top-down'' effect on fish 
assemblages by allowing other fish populations to increase, altering 
the composition of the overall natural community of species, including 
invertebrates. The largest fish are important as predators in 
maintaining a balanced and complete ecosystem; their selective removal 
causes ecological imbalance.
    28. Comment: No studies have been done on the effects of the no-
anchoring rule, which was banned in part to prevent spearfishermen from 
taking fish around anchor lines.
    Response: The prohibition on anchoring in GRNMS was adopted to 
protect bottom habitat from anchor damage, thus enhancing the overall 
health of the sanctuary's natural systems that depend on the hard 
bottom and the invertebrates attached and growing (71 FR 60055). The 
purpose of the anchor prohibition was not related to the prevention of 
spearfishing around anchor lines.
    29. Comment: Stop commercial fishing to protect fish instead of 
banning spearfishing gear in GRNMS.
    Response: GRNMS regulations allow only rod and reel, handline, and 
spearfishing gear without powerheads. There is little to no indication 
that commercial fishing takes place in GRNMS.
    30. Comment: Some spearfishermen may want to just dive without 
spearing in GRNMS when transiting through the sanctuary after a 
spearfishing trip further offshore, but they are not permitted to stop 
with spearfishing gear on board.
    Response: NOAA considered an alternative allowing boats to stop in 
the sanctuary with spearfishing gear, provided it was stowed and 
unavailable for use. That alternative was eliminated because NOAA found 
that it did not meet the purpose and need for this action. The ability 
to more effectively enforce GRNMS regulations, one of the purposes of 
this action, would be further compromised under this alternative. Law 
enforcement officials have expressed concerns about enforcing a 
provision that would allow stopping when spearfishing gear is on board 
even if it is stowed.
    31. Comment: Fishing pressure will increase on other areas outside 
of GRNMS, and/or rod and reel fishing will increase in GRNMS while 
spearfishing increases outside of GRNMS.
    Response: NOAA acknowledges that fishing pressure could increase 
outside of GRNMS as a result of this action.

[[Page 7367]]

However, given the relatively small amount of spearfishing that seems 
to occur in GRNMS, and the indication from surveys that most 
spearfishing activity already occurs outside of the sanctuary, a 
prohibition on spearfishing is not likely to result in significant 
changes in fishing activities in or outside of the sanctuary.
    32. Comment: Size limits could address the problem of spearfishing 
selectively targeting larger fish.
    Response: NOAA interprets the comment to mean that rather than 
banning spearfishing altogether, NOAA should consider banning the take 
of large fish by spearfishing (i.e., maximum size limit). The 
suggestion provided by the commenter would not address the powerhead 
ban enforcement issue, which is one of the purposes of this action.
    33. Comment: NOAA should limit fishing to only those fish species 
that are not at risk (e.g., king mackerel) to address the mandate to 
protect resources while allowing compatible uses.
    Response: This comment is suggesting that NOAA should restrict all 
kinds of fishing activities and gear, limiting them only to fish 
species that are not at risk. This is beyond the scope of this action 
(see response to comments 20, 21, 22).
    34. Comment: NOAA should postpone a decision on the proposed rule 
and work with spearfishermen to thoroughly research the issue.
    Response: NOAA postponed its previous decision to ban spearfishing 
in 2006, for the purpose of gathering further socioeconomic information 
on the impact of a possible ban on all spearfishing in GRNMS. In 
addition, NOAA has thoroughly researched the possible detrimental 
effects to the natural marine resources of GRNMS that NOAA is mandated 
to protect. Therefore, NOAA is satisfied with the level of information 
on natural marine resources as well as socioeconomic impact used as a 
basis for this action.

V. References for Citations

    All references that NOAA used as a basis for this rule may be found 
in the environmental assessment (EA), which is available as specified 
in the ADDRESSES section.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Fishing gear, 
Marine resources, Natural resources, Penalties, Recreation and 
recreation areas, Wildlife.

(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary 
Program)

    Dated: February 2, 2010.
Holly Bamford,
Acting Assistant Administrator for Ocean Services and Coastal Zone 
Management.


0
Accordingly, for the reasons set forth above, NOAA is amending part 
922, title 15 of the Code of Federal Regulations, as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

0
1. The authority citation for part 922 continues to read as follows:

    Authority: 16 U.S.C. 1431 et seq.


0
2. Amend Sec.  922.92:
0
a. By revising paragraph (a)(5)(i);
0
b. By revising paragraph (a)(6);
0
c. And by adding a new paragraph (a)(11).
    The revisions and addition read as follows:


Sec.  922.92  Prohibited or otherwise regulated activities.

    (a) * * *
    (5) * * *
    (i) Injuring, catching, harvesting, or collecting, or attempting to 
injure, catch, harvest, or collect, any marine organism, or any part 
thereof, living or dead, within the Sanctuary by any means except by 
use of rod and reel, and handline gear;
* * * * *
    (6) Using any fishing gear within the Sanctuary except rod and 
reel, and handline gear, or for law enforcement purposes.
* * * * *
    (11) Possessing or carrying any fishing gear within the Sanctuary 
except:
    (i) Rod and reel, and handline gear;
    (ii) Fishing gear other than rod and reel, handline gear, and 
spearfishing gear, provided that it is stowed on a vessel and not 
available for immediate use;
    (iii) Spearfishing gear provided that is stowed on a vessel, not 
available for immediate use, and the vessel is passing through the 
Sanctuary without interruption; and
    (iv) For law enforcement purposes.
* * * * *
[FR Doc. 2010-2808 Filed 2-18-10; 8:45 am]
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