[Federal Register Volume 75, Number 211 (Tuesday, November 2, 2010)]
[Rules and Regulations]
[Pages 67247-67251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27661]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 622

[Docket No. 0907201152-0420-02]
RIN 0648-AY05


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Regulatory Amendment to the Fishery Management Plan for the Reef Fish 
Fishery of Puerto Rico and the U.S. Virgin Islands

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 that implements a regulatory 
amendment to the Fishery Management Plan for the Reef Fish Fishery of 
Puerto Rico and the U.S. Virgin Islands (FMP) prepared by the Caribbean 
Fishery Management Council (Council). This rule modifies the Bajo de 
Sico seasonal closure from a 3-month closure to a 6-month closure, and 
prohibits fishing for and possession of Caribbean reef fish in or from 
the exclusive economic zone (EEZ) portion of Bajo de Sico during the 
closure. The final rule also prohibits anchoring in the EEZ portion of 
Bajo de Sico year-round. In addition to the measures contained in the 
regulatory amendment, this final rule also adds spear to the list of 
allowable gears in the commercial sector of the Caribbean reef fish 
fishery and revises the title of the FMP in the list of authorized 
fisheries and gear. The intended effect of this rule is to provide 
further protection for red hind spawning aggregations and large 
snappers and groupers, and better protect the essential fish habitat 
(EFH) where these species reside.

DATES: This rule is effective December 2, 2010.

ADDRESSES: Copies of the regulatory amendment, the Environmental 
Assessment, the regulatory flexibility analysis, and the regulatory 
impact review (RIR) may be obtained from Britni Tokotch, Southeast 
Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701 
or may be downloaded from the Southeast Regional Office Web site at 
http://sero.nmfs.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Britni Tokotch, 727-824-5305.

SUPPLEMENTARY INFORMATION: The Caribbean reef fish fishery is managed

[[Page 67248]]

under the FMP. The FMP was prepared by the Council and is implemented 
through regulations at 50 CFR part 622 under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).
    On July 28, 2010, NMFS published a proposed rule for the Bajo de 
Sico regulatory amendment in the Federal Register and requested public 
comment (75 FR 44209). The rationale for the measures contained in this 
final rule are provided in the regulatory amendment and in the preamble 
to the proposed rule and are not repeated here.

Comments and Responses

    During the comment period for the proposed rule, NMFS received one 
comment. This comment was from a Federal agency and expressed general 
support for the actions proposed in the rule. NMFS received no comments 
that addressed specific actions in the Bajo de Sico regulatory 
amendment or the proposed rule.

Classification

    The Administrator, Southeast Region, NMFS, determined that the 
regulatory amendment is necessary for the conservation and management 
of the reef fish fishery and is consistent with the Magnuson-Stevens 
Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a 
summary of the significant economic issues raised by public comments, 
NMFS responses to those comments, and a summary of the analyses 
completed to support the action. A copy of the full analysis is 
available from NMFS (see ADDRESSES). A summary of the FRFA follows.
    The Magnuson-Stevens Act provides the statutory basis for this 
final rule. This final rule will not establish any new reporting, 
recordkeeping, or other compliance requirements. No duplicative, 
overlapping, or conflicting Federal rules have been identified.
    This final rule will modify the Bajo de Sico seasonal closure by 
extending it from a 3-month closure to a 6-month closure, and prohibit 
fishing for and possession of Caribbean reef fish in or from the EEZ 
portion of Bajo de Sico during the closure. This final rule will also 
prohibit anchoring by fishing vessels in the EEZ portion of Bajo de 
Sico year-round. This rule also makes minor revisions to the codified 
text, including adding spear to the list of allowable gears in the 
commercial sector of the reef fish fishery, and revising the title of 
the FMP in the list of authorized fisheries and gears in Sec.  600.725. 
The purposes of this final rule are to provide further protection for 
red hind spawning aggregations and large snappers and groupers from 
directed fishing mortality, to achieve a more natural sex ratio, age, 
and size structure, and to better protect the EFH where these species 
reside.
    No significant issues associated with the economic analysis were 
raised through public comment on the proposed rule. A summary of the 
single comment received is provided in the previous section of this 
preamble. No changes were made in the final rule as a result of this 
comment.
    At present, Federal permits are not required to participate in 
Council-managed fisheries on Puerto Rico's west coast, and, therefore, 
it is unknown how many fishermen or vessels participate in the Federal 
component of these fisheries. However, landings data from Puerto Rico's 
trip ticket program indicate that 294 fishermen had commercial landings 
on Puerto Rico's west coast in 2007. Some of these fishermen do not 
possess commercial fishing licenses, and the vessels used by these 
fishermen are not identified in the landings data. Preliminary 
fisherman Census data for 2008 indicate that 95 percent of commercial 
fishermen own one vessel, and thus it is assumed for current purposes 
that each commercial fisherman represents a single commercial fishing 
vessel. Furthermore, all charter and headboat vessels used to fish for, 
take, retain, or possess Atlantic billfish, tunas, swordfish, or sharks 
must possess an Atlantic Highly Migratory Species (HMS) charter/
headboat permit. In 2008, eight charter vessels on Puerto Rico's west 
coast held HMS charter/headboat permits.
    In Puerto Rico's west coast fisheries, commercial fishing vessels 
average 20 ft (6.3 m) in length, but range between 12 to 51 ft (3.8-
15.9 m), with the vast majority being between 15 and 25 ft (4.7-7.8 m). 
These vessels have an average horsepower (HP) of approximately 77, 
though considerable variability exists within the fleet, even among 
vessels of comparable length. The age of these vessels is approximately 
19 years on average. The majority of vessels are made of fiberglass (63 
percent), though wood hulls and wood and fiberglass composite hulls are 
relatively common, accounting for 19 percent and 18 percent of the 
fleet, respectively. On average, each vessel carries two individuals, 
the captain and one crewman.
    According to the 2008 fisherman Census, 72 percent of Puerto Rico's 
west coast commercial fishermen possess some type of commercial fishing 
license while 28 percent do not. Of those fishermen who hold a 
commercial fishing license, the vast majority (78 percent) possess a 
full-time license, while the others possess either a beginner's license 
(18 percent) or a part-time license (4 percent). These fishermen are 
approximately 47 years old on average and have nearly 27 years of 
commercial fishing experience. Each fisherman supports approximately 
three dependents on average, which translates to an average household 
family size of four persons. Each fisherman spends an average of 
approximately 51 hours per week on commercial fishing related 
activities. These individuals are highly dependent on income from 
commercial fishing, which represents more than 85 percent of their 
household income on average. More than half of these fishermen (54 
percent) have less than a high school level of education, 35 percent 
have a high school level of education, and 11 percent have some 
additional education beyond high school.
    As a result of non-reporting, reported landings and, thus, revenue 
for Puerto Rico's commercial fisheries underestimate actual landings 
and revenue. Therefore, landings and revenue must be adjusted in order 
to generate more accurate estimates. Based on corrected landings 
estimates, average gross revenue per commercial fisherman was $5,431 
and $9,168 in 2006 and 2007 respectively, or $7,076 across both years. 
The maximum gross revenue for a single commercial fisherman in either 
year was approximately $138,000. Commercial fishermen are mainly 
dependent on revenue from spiny lobster, queen conch, and reef fish, 
particularly queen snapper and silk snapper. However, harvest of queen 
conch is prohibited in the EEZ around Puerto Rico and bottom-tending 
gear (e.g., fish traps, lobster traps, and bottom longline) is 
prohibited in Bajo de Sico. Scuba diving and bottom line are the 
predominant gears used by commercial fishermen. The bottom line fishery 
for reef fish is most relevant for the actions in this rule.
    In 2008, eight vessels on Puerto Rico's west coast possessed HMS 
charter/headboat permits. All eight charter vessels are made of 
fiberglass. The majority of the HMS charter vessels (seven) use rod and 
reel gear, while one vessel uses handline gear. Furthermore, these 
vessels average 27 ft (8.4 m) in

[[Page 67249]]

length and have 358 HP on average and thus are slightly longer and 
considerably more powerful on average than commercial fishing vessels. 
These vessels are approximately 8 years old on average and are thus 
typically much newer than commercial fishing vessels. Charter vessels 
also typically carry more individuals in terms of crew and passengers 
(approximately seven on average) than commercial vessels. Charter 
vessels most frequently target dolphin, blue marlin, wahoo, and 
yellowfin tuna. Charter fishermen have approximately 25 years of 
fishing experience on average. Charter vessels in Puerto Rico take 
approximately 190 trips per year each, though recent survey data 
suggest that charter vessels on the west coast may average only 150-160 
trips per year. These data also suggest that west coast charter vessels 
specialize in half-day trips rather than full-day trips, the latter of 
which was reported to cost $526 on average in 2005. Annual landings and 
revenue data for west coast charter vessels are not presently 
available. However, the available information regarding number of trips 
per year and cost per trip indicates that these charter operations are 
similar to those in the Gulf of Mexico and South Atlantic regions. 
Therefore, it is assumed that these vessels' maximum and average annual 
revenues are also similar to those operating in the Gulf of Mexico and 
South Atlantic regions.
    The Small Business Administration defines a small business in the 
commercial fishing industry as an entity that is independently owned 
and operated, is not dominant in its field of operation (including its 
affiliates), and has combined annual receipts not in excess of $4.0 
million annually (NAICS codes 114111, finfish fishing). For charter 
vessels, the other qualifiers apply and the annual receipts threshold 
is $7.0 million (NAICS code 713990, recreational industries). Based on 
the annual revenue and related information for the fisheries provided 
above, all vessels expected to be directly impacted by this final rule 
are determined, for the purpose of this analysis, to be small entities.
    The action to modify the Bajo de Sico closure is expected to 
directly benefit all eight charter vessels on Puerto Rico's west coast 
by giving them access to Bajo de Sico's HMS and pelagic resources 
during the 3 months (December, January, and February) the area is 
currently closed to all fishing. The magnitude of these economic 
benefits depends on the extent to which these vessels take additional 
trips to Bajo de Sico as opposed to reallocating current trips from 
other areas. An estimate of how many additional trips these charter 
vessels might take is not currently available. However, additional 
trips would be expected to result in higher revenue and thus higher 
profit.
    Conversely, 64 of the 294 (22 percent) commercial fishing vessels 
actively participating in Puerto Rico's west coast fisheries in 2007 
are expected to experience direct, adverse economic effects as a result 
of the action to modify the Bajo de Sico closure. Specifically, since 
these vessels will experience additional loss of access to Bajo de 
Sico's fisheries resources, particularly reef fish, during the months 
of October, November, and March under this action, their landings, 
revenue, and, therefore, profit are expected to decrease. Based on an 
extrapolation of landings data from Puerto Rico's trip ticket data, the 
64 directly affected vessels averaged approximately 6,400 lb (2,303 kg) 
in landings and $17,300 in gross revenue in 2007. Detailed cost data 
and, therefore, profit estimates are not currently available for these 
commercial vessels. Therefore, the reduction in profit arising from 
this action cannot be directly estimated for the directly affected 
vessels.
    However, surveys of the directly affected commercial fishermen 
indicate that these vessels are expected to experience a 48-percent 
reduction in landings and a 47-percent reduction in gross revenue, or 
approximately $8,130 per vessel. Most of these losses are due to 
reductions in the harvest of reef fish, particularly deepwater 
snappers. However, the harvest of other species (e.g. baitfish) caught 
on trips that target reef fish are also expected to be foregone. Since 
these relatively small vessels will not be able to transit through Bajo 
de Sico with reef fish on board and may have to travel to more distant 
fishing grounds in order to harvest deepwater snappers, operating costs 
are expected to increase by 57 percent. Further, the affected fishermen 
are expected to experience a 55-percent reduction in household income. 
Since the fisherman's household income is generally indicative of net 
revenue or profit to the vessel, this figure represents the best 
available estimate of the expected percentage reduction in profit for 
these entities.
    On the other hand, since October and November are off-season for 
many commercial vessels due to poor weather and sea conditions, and 
given that the harvest of their primary target species, silk snapper, 
is already prohibited during these months, the reductions in landings, 
revenue, household income and, therefore, profit are likely 
overestimated. Furthermore, if they currently possess the proper gear, 
a few vessels may be able to partially mitigate these losses by 
reallocating some of their fishing effort out of the bottom line 
fishery for reef fish into the troll line fishery for HMS and pelagic 
species during the months that Bajo de Sico will be closed to fishing 
for Caribbean reef fish.
    The action to prohibit anchoring by fishing vessels in Bajo de Sico 
year-round is not expected to generate adverse economic impacts on the 
eight charter vessels because they use troll or handline gear and do 
not drop anchor when fishing. It is possible, though not likely, that a 
few of the commercial vessels expected to be affected by the action to 
modify the Bajo de Sico closure may experience additional minimal 
adverse economic effects as a result of the anchoring prohibition. 
Though it is not necessary for vessels using bottom line gear to drop 
anchor when fishing, such behavior may occur on occasion. Since 
dropping anchor in Bajo de Sico would no longer be permissible under 
the action, vessels would be required to move out of the area, and 
thereby expend additional fuel, if they want to drop anchor. The 
effects resulting from the occasional need for a few vessels to expend 
additional fuel would likely be imperceptible and, therefore, probably 
have no impact on these vessels' profitability.
    The action to add spear to the list of allowable gears in the 
commercial sector of the reef fish fishery is not expected to generate 
any adverse economic effects on commercial reef fish vessels. This 
action is administrative in nature, the purpose of which is to correct 
an oversight with respect to the current list of allowable gears for 
the commercial reef fish fishery. Since spear is and has been an 
historically used gear in the commercial reef fish fishery, the Council 
intended for it to be included in the list of allowable gears. This 
action would formally legalize its use in the fishery but have no 
effect on its current or expected future use in the fishery and thus, 
in turn, have no effect on the operations of commercial reef fish 
vessels.
    The Council considered a number of alternatives to achieve their 
objectives and reduce potential adverse economic effects, where 
appropriate. The following is a discussion of these alternatives and 
the reason they were not chosen as the proposed action. An alternative 
may not be chosen for reasons unrelated to the expected economic 
effects of the alternative, such as not achieving the Council's 
objectives

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and, as a result, the following information only discusses the expected 
economic effects of the alternative that was not chosen when the 
alternative would have achieved the Council's objectives, would have 
been expected to result in reduced adverse economic effects relative to 
the proposed action, or was not chosen for some other reason.
    Four alternatives, including the status quo, were considered for 
the action to modify the Bajo de Sico seasonal closure. Three of the 
alternatives include multiple options that determine which species and 
specific activities are covered by the closure. The first alternative, 
the status quo, would not have modified the seasonal closure for Bajo 
de Sico or prohibited possession of reef fish onboard when transiting 
through the area during the closure. Further, the seasonal closure 
would have continued to apply to all fishing, including fishing for 
non-reef fish species such as HMS and pelagics. The status quo 
alternative is inconsistent with the Council's objective of providing 
greater protection for spawning aggregations of reef fish in the area 
as well as for developed coral that provide essential habitat for these 
species.
    The second alternative, which would extend the seasonal closure by 
3 months to the months of October, November, and March, had three 
options in addition to the action. The first option would have 
prohibited fishing for all species, including those not managed by the 
Council, during the closure. The second option would have prohibited 
fishing for and possession of all species, including those not managed 
by the Council, during the closure. The third option would have 
prohibited fishing for reef fish during the closure. The first two 
options were not selected because fishing for HMS and pelagic species 
using troll, rod and reel, and handline gear near the surface is not 
expected to result in the incidental harvest of reef fish or damage to 
coral. As such, prohibiting fishing for and possession of these species 
would generate unnecessary economic and social impacts on charter, 
private recreational, and commercial vessels. The third option was not 
selected because it would still allow transit through Bajo de Sico 
during the closure with reef fish onboard. Allowing possession of reef 
fish onboard would make enforcement of the closure more difficult and 
thereby less effective.
    The third alternative, which would extend the seasonal closure by 3 
months to the months of March, April, and May, had four options. 
Although this alternative would close Bajo de Sico for 6 months, and 
thereby generate comparable biological benefits in terms of protecting 
red hind spawning aggregations and larger individuals of snapper and 
grouper, as well as protecting well developed coral and sponge habitat 
(EFH), it would create greater adverse social and economic impacts on 
commercial vessels and associated onshore businesses because commercial 
fishing activity is considerably greater in March, April, and May than 
in October, November, and March. Thus, this alternative would result in 
lower net benefits to society.
    The fourth alternative, which would implement a year-round closure 
of Bajo de Sico, had four options. This alternative would have 
generated greater biological benefits with respect to protecting coral 
and reef fish populations. However, the additional benefits of a year-
round closure to reef fish spawning aggregations were not believed to 
be significantly greater compared to a 6-month closure, and additional 
protections to coral habitat are being accomplished by the anchoring 
prohibition. Further, by completely prohibiting access to Bajo de 
Sico's reef fish and, in effect, baitfish resources, this alternative 
would have generated much greater adverse social and economic impacts 
on commercial and charter vessels and associated onshore businesses. 
Given the rule's objectives, the Council concluded these considerably 
larger social and economic costs outweighed the additional biological 
benefits and, thus, would have resulted in lower net benefits to 
society.
    Three alternatives, including the status quo, were considered for 
the action to prohibit anchoring in Bajo de Sico. The first 
alternative, the status quo, would not have implemented any 
restrictions on anchoring in Bajo de Sico. Anchoring is thought to 
cause substantial and long lasting damage to coral populations. 
Anchoring can also indirectly impact the long-term growth of coral 
populations. Coral populations are an essential part of the ecology of 
reef environments. If coral populations are decreased, reef fish 
populations could also be indirectly impacted by lack of essential 
habitat. Thus, this alternative is contrary to the Council's objective 
of providing additional protections to important coral habitat.
    The second alternative would have prohibited anchoring for 6 
months. Anchoring has a high probability of damaging essential coral 
reef populations. These coral populations are very vulnerable and slow 
growing, and even slight damage can require years of recovery. 
Anchoring during the open season could damage coral beyond recovery. 
Coral populations are an essential part of the ecology of reef 
environments. If coral populations are decreased, reef fish populations 
could also be indirectly impacted by lack of essential habitat. Thus, 
this alternative is contrary to the Council's objective of providing 
additional protections to important coral habitat.
    Copies of the RIR and FRFA are available from NMFS (see ADDRESSES).

List of Subjects

50 CFR Part 600

    Administrative practice and procedures, Confidential business 
information, Fisheries, Fishing, Fishing vessels, Foreign relations, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Statistics.

50 CFR Part 622

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

    Dated: October 28, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR parts 600 and 622 are 
amended as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

0
1. The authority citation for part 600 continues to read as follows:

    Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

0
2. In Sec.  600.725, in paragraph (v), in the table under heading ``V. 
Caribbean Fishery Management Council,'' the heading for entry 2. is 
revised, and a new entry 2.D. is added to read as follows:


Sec.  600.725  General prohibitions.

* * * * *
    (v) * * *

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                  Fishery                       Authorized gear types
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                              * * * * * * *
V. Caribbean Fishery Management Council....
 
                              * * * * * * *
2. Caribbean Reef Fish Fishery (FMP).......
 
                              * * * * * * *
D. Other commercial fishery................  D. Spear.
 
                              * * * * * * *
------------------------------------------------------------------------

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

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

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

0
4. In Sec.  622.33, paragraph (a) introductory text is revised, 
paragraph (a)(2)(ii)(A) is removed and reserved, and paragraph (a)(8) 
is added to read as follows:


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

    (a) Seasonal closures. In addition to the other restrictions 
specified in this paragraph (a), fishing with pots, traps, bottom 
longlines, gillnets or trammel nets is prohibited year-round in the 
closed areas specified in paragraphs (a)(1), (2), (3), and (8) of this 
section.
* * * * *
    (8) Bajo de Sico closed area. (i) The Bajo de Sico closed area is 
bounded by rhumb lines connecting, in order the following points:

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             Point A                   North lat.          West long.
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A................................  18[deg]15.7'        67[deg]26.4'
B................................  18[deg]15.7'        67[deg]23.2'
C................................  18[deg]12.7'        67[deg]23.2'
D................................  18[deg]12.7'        67[deg]26.4'
A................................  18[deg]15.7'        67[deg]26.4'
------------------------------------------------------------------------

    (ii) From October 1 through March 31, each year, no person may fish 
for or possess any Caribbean reef fish, as listed in Table 2 of 
Appendix A to part 622, in or from those parts of the Bajo de Sico 
closed area that are in the EEZ. The prohibition on possession does not 
apply to such Caribbean reef fish harvested and landed ashore prior to 
the closure.
    (iii) Anchoring, by fishing vessels, is prohibited year-round in 
those parts of the Bajo de Sico closed area that are in the EEZ.
* * * * *
[FR Doc. 2010-27661 Filed 11-1-10; 8:45 am]
BILLING CODE 3510-22-P