[Federal Register Volume 77, Number 91 (Thursday, May 10, 2012)]
[Rules and Regulations]
[Pages 27374-27380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11307]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 110511280-2424-02]
RIN 0648-BB10


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Snapper-Grouper Fishery Off the Southern Atlantic States; Snapper-
Grouper Management Measures

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement a regulatory 
amendment to the Fishery Management Plan (FMP) for the Snapper-Grouper 
Fishery of the South Atlantic Region (Regulatory Amendment 11), as 
prepared by the South Atlantic Fishery Management Council (Council). 
This rule removes the harvest and possession prohibition of six deep-
water snapper-grouper species (snowy grouper, blueline tilefish, 
yellowedge grouper, misty grouper, queen snapper, and silk snapper) 
from depths greater than 240 ft (73 m) in the South Atlantic exclusive 
economic zone (EEZ). The intent of this final rule is to maintain the 
biological protection to speckled hind and warsaw grouper as well as 
reduce the socio-economic impacts to fishermen

[[Page 27375]]

harvesting deep-water snapper-grouper in the South Atlantic.

DATES: This rule is effective May 10, 2012.

ADDRESSES: Electronic copies of documents supporting this final rule, 
which include an environmental assessment and a regulatory impact 
review (RIR), may be obtained from the Southeast Regional Office Web 
site at http://sero.nmfs.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Rick DeVictor, telephone: 727-824-
5305, or email: [email protected].

SUPPLEMENTARY INFORMATION: The snapper-grouper fishery of the South 
Atlantic is managed 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 December 20, 2011, NMFS published a proposed rule in the Federal 
Register for Regulatory Amendment 11 and requested public comment (76 
FR 78879). The proposed rule and Regulatory Amendment 11 explained the 
rationale for the action contained in this final rule. A summary of the 
rationale and the action implemented by this final rule is provided 
below.
    In the South Atlantic snapper-grouper fishery, speckled hind and 
warsaw grouper are currently undergoing overfishing and an annual catch 
limit (ACL) of zero was established through the final rule to implement 
Amendment 17B to the FMP (75 FR 82280, December 30, 2010). The 
accountability measure (AM) for this ACL prohibits all harvest and 
possession of speckled hind and warsaw grouper in the South Atlantic 
regardless of the depth where they are caught. Despite a prohibition on 
the harvest and possession of speckled hind and warsaw grouper, the 
Council anticipated that the bycatch mortality of these two species 
would continue as a result of the fishing effort for other deep-water 
snapper-grouper species. In order to reduce the anticipated bycatch 
mortality of speckled hind and warsaw grouper, Amendment 17B to the FMP 
and its implementing final rule prohibited all fishing for and 
possession of six deep-water snapper-grouper species (snowy grouper, 
blueline tilefish, yellowedge grouper, misty grouper, queen snapper, 
and silk snapper) beyond a depth of 240 ft (73 m), beginning January 
31, 2011.
    However, a more recent analysis of data from 1973-2011, indicate 
that speckled hind and warsaw grouper are rarely caught with snowy 
grouper, blueline tilefish, yellowedge grouper, misty grouper, queen 
snapper, or silk snapper. The low association between speckled hind and 
warsaw grouper landings and blueline tilefish may be attributable to 
the unique habitat preferences of speckled hind and warsaw grouper 
compared to blueline tilefish. The landings that were analyzed occurred 
prior to the implementation of the harvest and possession prohibition 
for speckled hind and warsaw grouper in Amendment 17B to the FMP (75 FR 
82280, December 30, 2010). Speckled hind and warsaw grouper generally 
prefer hard bottom structure with habitat features such as steep 
cliffs, notches, and rocky ledges of the continental shelf break. 
Blueline tilefish, which is targeted for harvest by the deep-water 
component of the snapper-grouper fishery, inhabit irregular bottoms 
composed of troughs and terraces inter-mingled with sand, mud, or shell 
hash bottom where they live in burrows. In addition, the majority of 
snowy grouper landings in the South Atlantic are from waters deeper 
than 500 ft (152 m), where landings of speckled hind and warsaw grouper 
are extremely rare. Even though yellowedge grouper, misty grouper, 
queen snapper, and silk snapper primarily share the same hard bottom 
habitat preference as speckled hind and warsaw grouper, these four 
species are rarely encountered and are not targeted by commercial or 
recreational fishermen; between 2006 and 2010, the average annual 
commercial landings of yellowedge grouper, misty grouper, queen 
snapper, and silk snapper was 53,330 lb (24,190 kg) compared to 
17,594,132 lb (7,980,564 kg) for the entire snapper-grouper commercial 
sector for this period. Instead, speckled hind and warsaw grouper, 
according to the new information available following the implementation 
of Amendment 17B to the FMP, are more commonly taken as incidental 
catch when fishermen target species such as gag, vermilion snapper, and 
red porgy inshore of 240 ft (73 m). Based on this information, at its 
August 2011 meeting, the Council voted to approve Regulatory Amendment 
11 based upon the more recent analyses, and thereby, remove the deep-
water snapper-grouper harvest and possession prohibition implemented 
through Amendment 17B.
    The current speckled hind and warsaw grouper harvest and possession 
prohibition contained in Amendment 17B is not changed and is expected 
to continue to reduce fishing mortality of these two species even 
without the additional deep-water snapper-grouper harvest and 
possession prohibition. As such, Regulatory Amendment 11 seeks to 
maintain the biological protection to speckled hind and warsaw grouper, 
prevent significant direct economic loss to snapper-grouper fishermen, 
and continue to achieve optimum yield for the fishery.
    The Council is currently developing an amendment to further enhance 
the biological protections for speckled hind and warsaw grouper. That 
amendment, the Comprehensive Ecosystem-Based Amendment 3 (CE-BA 3), 
considers additional measures to reduce the bycatch of speckled hind 
and warsaw grouper, including the expansion of existing, and 
establishment of new closure areas.

Comments and Responses

    A total of 94 comments were received on the proposed rule for 
Regulatory Amendment 11, including comments from individuals, six 
fishing associations, a state agency, and three non-governmental 
agencies. NMFS received 87 comments of general support for Regulatory 
Amendment 11 and the proposed rule. NMFS also received two comments 
that opposed, and five comments that neither supported nor opposed, 
Regulatory Amendment 11 and the proposed rule. Specific comments 
related to the actions contained in Regulatory Amendment 11 and the 
proposed rule, as well as NMFS' respective responses, are summarized 
below.
    Comment 1: One commenter stated that Regulatory Amendment 11 fails 
to end overfishing of speckled hind and warsaw grouper and that the 
Council and NMFS determined that a prohibition on landings would not, 
by itself, prevent overfishing because of the speckled hind and warsaw 
grouper mortality that would still result from discards of these 
species.
    Response: NMFS and the Council intended that the prohibition on the 
harvest and possession of speckled hind and warsaw grouper would work 
in combination with the 240-ft (73-m) prohibition of six deep-water 
snapper-grouper species, as well as a variety of other management 
measures, to minimize harvest and reduce discard mortality of speckled 
hind and warsaw grouper. Based on new information presented at Council 
meetings in 2011, the Council and NMFS have decided to retain the 
prohibition on the harvest and possession of speckled hind and warsaw 
grouper but eliminate the 240-ft (73-m) prohibition on six deep-water 
snapper grouper species. The Council concluded that other management 
measures would

[[Page 27376]]

be more effective in reducing discard mortality of speckled hind and 
warsaw grouper and minimizing the socio-economic effects to deep-water 
snapper-grouper fishers.
    The Council's Scientific and Statistical Committee (SSC) could not 
determine if the 240-ft (73-m) prohibition is necessary to end 
overfishing of either speckled hind or warsaw grouper. After reviewing 
Amendment 17B to the FMP, the SSC stated the following in its report 
from its December 2009 meeting: ``In general, the technical analyses 
supporting these species are acceptable, however, the SSC wishes to 
emphasize that these are extremely data poor species and that the 
uncertainty associated with any stock status information will be large. 
Consistent with that fact, the SSC cannot determine whether any of the 
proposed measures will end overfishing, because the overfishing level 
is unknown, the current mortality is unknown and discards are poorly 
known.''
    A species is described as undergoing overfishing if either the 
fishing mortality rate exceeds the maximum fishing mortality threshold 
(MFMT) for a period of 1 year or if the annual catch exceeds the annual 
overfishing limit (OFL) for 1 year or more (50 CFR 
600.310(e)(2)(ii)(A)). Since 1997, speckled hind and warsaw grouper 
have been listed as undergoing overfishing in NMFS' Report to Congress 
on the Status of U.S. Fisheries. The Council and NMFS specify which 
method will be used to determine a species' overfishing status. The 
OFL, which is the overfishing limit in pounds or numbers of fish, is 
unknown for speckled hind and warsaw grouper. The Council defined the 
MFMT for speckled hind and warsaw grouper through the final rule 
implementing Amendment 11 to the FMP (64 FR 59126, November 2, 1998) as 
the fishing mortality rate in excess of the fishing mortality rate at 
30 percent of the static spawning potential ratio. The most recent 
evaluations of fishing mortality in relation to MFMT were for the 1999 
and 1990 fishing years for speckled hind and warsaw grouper, 
respectively. These evaluations determined that speckled hind and 
warsaw grouper were undergoing overfishing. The Council has taken 
action to decrease fishing mortality of speckled hind and warsaw 
grouper to address overfishing. However, data are insufficient to 
assess the most recent fishing mortality rates. As with many Council-
managed species, measures to significantly restrict fishing mortality 
have hindered the ability of the Council and NMFS to obtain data and 
conduct an assessment of a stock's health; fishery-dependent data are a 
major source of information in the assessment of stocks in the South 
Atlantic region.
    The Council and NMFS have taken significant actions to decrease 
fishing mortality of speckled hind and warsaw grouper and address 
overfishing. Speckled hind and warsaw grouper were included in the five 
grouper aggregate recreational bag limit in 1992 (56 FR 56016, October 
31, 1991), and then a commercial and recreational limit of one per 
vessel of each species with a commercial sale prohibition was 
established in 1994 (59 FR 27242, May 26, 1994). A complete harvest 
prohibition for both species and ACLs of zero (landings only) were 
established in 2011, through the final rule implementing Amendment 17B 
to the FMP (75 FR 82280, December 30, 2010). The ACL is based on an 
acceptable biological catch (ABC) level of zero (landings only) for 
speckled hind and warsaw grouper provided by the Council's SSC. The SSC 
did not provide a recommendation for an acceptable level of discard 
mortality and based its ABC recommendation on landings only. As a 
result of these restrictions, average annual landings of speckled hind 
decreased from 28,107 (12,749 kg) during 1981-1994 to 8,318 lb (3,773 
kg), whole weight. During 1995-2010, average annual landings of warsaw 
grouper decreased from 88,007 lb (39,919 kg) to 27,171 lb (12,325 kg), 
whole weight.
    In addition to harvest restrictions, the Council and NMFS have 
implemented spatial closures to reduce discard mortality of speckled 
hind and warsaw grouper. In 1994, Federal regulations were implemented 
that prohibited fishing for and retention of snapper-grouper species 
within the Oculina Experimental Closed Area. The intent of these 
prohibitions was to ``enhance stock stability and increase recruitment 
by providing an area where deep-water species can grow and reproduce 
without being subjected to fishing mortality'' (59 FR 27242, May 26, 
1994). In Amendment 13A to the FMP, these regulations were extended 
indefinitely (69 FR 15731, March 26, 2004). In 2009, eight marine 
protected areas (MPAs) were established in the South Atlantic, through 
the final rule implementing Amendment 14 to the FMP, in which 
possession, retention, and fishing for all of the species in the FMP, 
including speckled hind and warsaw grouper, is prohibited (74 FR 1621, 
January 13, 2009). The intent of these MPAs is to protect long-lived, 
deep-water snapper-grouper species, including speckled hind and warsaw 
grouper, through the elimination of bottom-fishing activities in the 
closed areas. The presence of speckled hind and warsaw grouper has been 
documented in many of the MPAs.
    Speckled hind and warsaw grouper are also known to inhabit depths 
inshore of 240 ft (73 m) where most of the commercial fishing effort 
occurs. Efforts to limit mortality of species occurring closer to shore 
would be expected to reduce the discard mortality of speckled hind and 
warsaw grouper because most speckled hind and warsaw grouper encounters 
occur inshore of 240 ft (73 m). Management measures to reduce both the 
commercial and recreational fishing effort relative to species 
occurring closer to shore such as black sea bass, gag, red snapper, red 
porgy, and vermilion snapper are likely to have a significant effect on 
speckled hind and warsaw grouper populations due to the strong harvest 
association among these species (SERO-LAPP-2011-06 Report). Because of 
these measures, some reduction in bycatch of speckled hind and warsaw 
grouper has likely already occurred since the number of recreational 
trips in the South Atlantic EEZ in 2011 was the lowest since 1982. In 
addition to the measures previously mentioned, these specific 
regulations that are likely to reduce bycatch of speckled hind and 
warsaw grouper for species occurring closer to shore include the 
following: (1) An annual vermilion snapper prohibition for the 
recreational sector from November through March (74 FR 30964, June 29, 
2009); (2) an annual shallow-water grouper prohibition for all 
fishermen from January through April (74 FR 30964, June 29, 2009); (3) 
an annual red porgy prohibition for the commercial sector from January 
through April (65 FR 51253, August 23, 2000); (4) a three fish red 
porgy bag limit and a 120 fish commercial bycatch trip limit (71 FR 
55096, September 21, 2006); and, (5) a prohibition of all red snapper 
harvest and possession (75 FR 76874, December 9, 2010). In addition, 
the establishment of ACLs and AMs for black sea bass, gag, golden 
tilefish, snowy grouper, and vermilion snapper through Amendment 17B to 
the FMP have resulted in in-season closures and reduced season lengths, 
which NMFS expects has further reduced the discard mortality of 
speckled hind and warsaw grouper.
    To further reduce discards of speckled hind and warsaw grouper, the 
Council and NMFS plan to develop area and species prohibitions that 
would most effectively reduce encounters with speckled hind and warsaw 
grouper while minimizing, to the extent practicable, socio-economic 
effects to

[[Page 27377]]

the fishing industry. The intent of the deep-water prohibition 
implemented through Amendment 17B to the FMP was to reduce depth-
related bycatch mortality. Following the implementation of Amendment 
17B to the FMP, the Council and NMFS re-evaluated the effectiveness of 
the 24-ft (73 m) prohibition using the best scientific information 
available contained in Regulatory Amendment 11, scientific 
recommendations from the NMFS Southeast Fisheries Science Center 
(SEFSC), the Council's SSC, and public comments. Based on new 
information and new analyses, the Council and NMFS concluded that the 
240-ft (73 m) prohibition is not an effective means to reduce discard 
mortality of speckled hind and warsaw grouper due to the location of 
the closure and the species prohibited.
    According to the best scientific information available, in order to 
increase the effectiveness of additional regulations aimed at reducing 
the discard mortality of speckled hind and warsaw grouper, the Council 
and NMFS would need to consider areas shallower than 240 ft (73 m). A 
new analysis of landings data following the implementation of Amendment 
17B to the FMP (SERO-LAPP-2011-06 Report) indicates that most 
encounters with speckled hind and warsaw grouper by fishermen occurred 
inshore of 240 ft (73 m), because fishing effort in the snapper-grouper 
fishery is greatest in these depths. Based on this new information, 
area closures on the shelf edge (between 160-240 ft (49-73 m) depths) 
would provide greater protection to speckled hind and warsaw grouper 
than the current harvest prohibition of the six species in depths 
greater than 240 ft (73 m).
    New information suggests the effectiveness of the regulations for 
protecting speckled hind and warsaw grouper would also increase if a 
snapper-grouper prohibition applied to species other than those 
currently prohibited beyond a 240-ft (73-m) depth. Recent analysis of 
landings data (June 1, 2011, SERO-LAPP-2011-06 Report) indicate that 
speckled hind and warsaw grouper are rarely caught with the six species 
prohibited by the 240-ft (73-m) prohibition. Additionally, the low 
association between the harvest of blueline tilefish and speckled hind 
and warsaw grouper is supported by preliminary results from a study 
conducted with an exempted fishing permit (EFP) by the North Carolina 
Division of Marine Fisheries (NCDMF) that began on August 2, 2011. The 
primary purpose of the EFP is to determine if speckled hind and warsaw 
grouper are bycatch in the commercial blueline tilefish component of 
the South Atlantic snapper-grouper fishery. Preliminary findings 
provided to the Council and NMFS by NCDMF on March 2, 2012, indicate 
that no speckled hind or warsaw grouper were caught on 73 commercial 
trips targeting blueline tilefish off North Carolina (19 percent of 
those trips contained an observer).
    The low association between speckled hind and warsaw grouper 
landings and blueline tilefish may be attributable to the unique 
habitat preferences of speckled hind and warsaw grouper compared to 
blueline tilefish. Speckled hind and warsaw grouper generally prefer 
hard bottom structure with habitat features such as steep cliffs, 
notches, and rocky ledges of the continental shelf break. Blueline 
tilefish, which is targeted for harvest by the deep-water component of 
the commercial sector of the snapper-grouper fishery, inhabit irregular 
bottom features composed of troughs and terraces inter-mingled with 
sand, mud, or shell hash habitat where they live in burrows. In 
addition, the majority of snowy grouper landings in the South Atlantic 
are from waters deeper than 500 ft (152 m), where landings of speckled 
hind and warsaw grouper are extremely rare.
    With the exception of blueline tilefish off the coasts of North and 
South Carolina, snowy grouper, and deep-water species off South 
Florida, the six species currently prohibited deeper than 240 ft (73 
m), are not currently targeted by the commercial sector. Snowy grouper 
is not targeted as much as in the past. Harvest of snowy grouper is 
severely restricted (regulations include a 100-lb (45-kg) commercial 
trip limit and a one fish per vessel recreational trip limit) and 
harvests of the remaining species are minimal, compared to landings of 
snapper-grouper for the entire commercial sector. Between 2006 and 
2010, the average annual commercial landings of yellowedge grouper, 
misty grouper, queen snapper, and silk snapper was 53,330 lb (24,190 
kg) compared to 17,594,132 lb (7,980,564 kg) for the entire snapper-
grouper commercial sector for this period. Instead, speckled hind and 
warsaw grouper, according to new information available following the 
implementation of Amendment 17B to the FMP, are more commonly taken as 
incidental catch when fishermen target species such as gag, vermilion 
snapper, and red porgy inshore of 240 ft (73 m).
    Therefore, based on a review of new information from the June 1, 
2011, SERO-LAPP-2011-06 Report and a study conducted with an EFP by the 
NCDMF, neither of which was available during development of Amendment 
17B to the FMP, the Council concluded that allowing the harvest of 
deep-water species, including blueline tilefish and snowy grouper, 
beyond a depth of 240 ft (73 m), would not likely result in significant 
increases in the bycatch mortality of speckled hind or warsaw grouper, 
although low levels of bycatch of these species might occur. Instead, 
the Council and NMFS determined that other measures besides the 
prohibition on harvest of six species deeper than 240 ft (73 m) would 
be more effective in reducing discard mortality of speckled hind and 
warsaw grouper and should be considered. The Council is currently 
developing CE-BA 3, which considers additional measures to reduce 
bycatch of speckled hind and warsaw grouper, including the expansion of 
existing, and establishment of new, mid-shelf MPAs. The completion of 
that amendment has been determined to be a high priority for the 
Council. The Council is planning to take final action and submit the 
amendment to the Secretary of Commerce at its December 2012 meeting for 
approval and subsequent implementation through rulemaking.
    Comment 2: Regulatory Amendment 11 fails to minimize bycatch and 
bycatch mortality of speckled hind and warsaw grouper. Regulatory 
Amendment 11 would nullify the only AM currently in place for speckled 
hind and warsaw grouper and leave these species with no accountability 
for bycatch mortality anywhere, contrary to the requirements of 
National Standard 1 and section 303(a)(15) of the Magnuson-Stevens Act. 
Regulatory Amendment 11 would leave speckled hind and warsaw grouper 
unprotected against discard mortality. Additionally, NMFS has failed to 
implement an adequate standardized bycatch reporting methodology in the 
South Atlantic.
    Response: NMFS disagrees that Regulatory Amendment 11 would nullify 
the only AM currently in place for speckled hind and warsaw grouper. 
AMs are management controls to prevent ACLs, including sector specific 
ACLs, from being exceeded, and to correct or mitigate overages of the 
ACL if they occur. The 240-ft (73 m) prohibition was intended to reduce 
discard mortality of speckled hind and warsaw grouper. The current AM 
is the prohibition on the harvest and possession of speckled hind and 
warsaw grouper.
    During the development of Amendment 17B to the FMP, the Council 
discussed the challenges of setting an AM for speckled hind and

[[Page 27378]]

warsaw grouper when the Council's SSC recommended an ABC equal to zero 
for landings only. For the majority of species managed by the Council, 
the ABC is above zero and the AMs, or management controls, are 
triggered when a certain level of harvest is reached in order to 
prevent overages of the ACLs. In the snapper-grouper fishery, actions 
are taken to correct or mitigate overages of the ACLs, such as reducing 
the ACL in the following year by the overage. Despite stating in a 
footnote of a table in the Summary of Amendment 17B to the FMP that 
``the deepwater closure may be considered as a type of AM'' (emphasis 
added), the Council acknowledged in Regulatory Amendment 11 that the 
prohibition on the harvest and possession of speckled hind and warsaw 
grouper is the AM and serves as the management control to prevent ACLs 
from being exceeded.
    NMFS disagrees that Regulatory Amendment 11 would leave speckled 
hind and warsaw grouper without management measures to protect against 
discard mortality. The Council and NMFS are required to implement 
measures, to the extent practicable, that (1) minimize bycatch and (2) 
to the extent bycatch cannot be avoided, minimize the mortality of such 
bycatch, according to National Standard 9 of the Magnuson-Stevens Act 
(16 U.S.C. 1851). In Regulatory Amendment 11, the Council and NMFS 
evaluated the practicability of implementing measures to minimize 
bycatch and bycatch mortality. The Council and NMFS have concluded that 
regulations that both minimize bycatch and minimize the mortality of 
bycatch, such as those noted below, are in effect even with the removal 
of the 240-ft (73-m) prohibition. In addition, and as discussed in 
response to Comment 1, the Council and NMFS have concluded, based on 
new information presented to them following the implementation of 
Amendment 17B to the FMP, that measures other than the 240-ft (73-m) 
prohibition would be more effective in reducing discard mortality of 
speckled hind and warsaw grouper.
    The Council and NMFS have previously implemented spatial closures 
and gear requirements intended to reduce bycatch and bycatch mortality 
of managed species, including speckled hind and warsaw grouper. In 
1994, the Council and NMFS prohibited fishing for and retention of all 
species in the FMP within the Oculina Experimental Closed Area off 
Florida (59 FR 27242, May 26, 1994). The intent of the prohibition was 
to enhance stock stability and increase recruitment by providing an 
area where deep-water species can grow and reproduce without being 
subjected to fishing mortality, including mortality from discards. In 
2009, the Council and NMFS implemented eight MPAs in the South 
Atlantic, in or from which possession, retention, and fishing for all 
species in the FMP was prohibited (74 FR 1621, January 13, 2009). The 
intent of the eight MPAs was to protect long-lived, deep-water snapper-
grouper species including speckled hind and warsaw grouper. Based on a 
review of new information that was not available during the development 
of Amendment 17B to the FMP, the 240-ft (73-m) prohibition is not the 
most effective means to reduce discard mortality of speckled hind and 
warsaw grouper, and the closure of other areas should be considered. 
The Council is currently developing CE-BA 3, which considers additional 
measures to reduce bycatch of speckled hind and warsaw grouper, 
including the expansion of currently established MPAs and the 
establishment of new mid-shelf MPAs.
    The Council and NMFS have also implemented gear requirements 
intended to reduce recreational and commercial bycatch mortality. 
Beginning on July 29, 2009, the Council and NMFS required the 
possession of a dehooking device on board a vessel when fishing for 
South Atlantic snapper-grouper and required the use of such tools as 
needed to accomplish release of fish with minimum injury (74 FR 30964). 
In addition, beginning on March 3, 2011, the Council and NMFS required 
the use of non-stainless steel circle hooks when fishing for snapper-
grouper species with hook-and-line gear and natural baits north of 
28[deg] N. lat. (75 FR 82280, December 30, 2010). The use of circle 
hooks is most effective in reducing bycatch mortality for juvenile 
speckled hind and warsaw grouper as these species are caught at 
shallower depths compared to adult fish.
    The Council and NMFS adopted, through Amendment 15B to the FMP, the 
Atlantic Coastal Cooperative Statistics Program (ACCSP) Release, 
Discard and Protected Species Module as the preferred methodology for a 
standardized bycatch reporting methodology, and until the module is 
fully funded, require the use of a variety of sources to assess and 
monitor bycatch. Currently, discard estimates are supplied through the 
Marine Recreational Information Program (MRIP), the supplementary 
commercial and headboat discard logbooks, the previously-referenced EFP 
for North Carolina, and the Federal reef fish observer program. The 
Council has approved an action in Amendment 18A to the FMP to enhance 
data reporting in the for-hire sector. The Council is also developing 
amendments to other FMPs, including the Snapper-Grouper FMP, to improve 
data reporting by the commercial sector, and the for-hire component of 
the recreational sector of the snapper-grouper fishery, and by dealers.
    Comment 3: Regulatory Amendment 11 fails to rely on the best 
scientific information available by circumventing the established SSC 
peer-review process.
    Response: The Council and NMFS incorporated the best scientific 
information available into Regulatory Amendment 11 and utilized the SSC 
peer-review process in the development of the amendment. As described 
by National Standard 2 in the Magnuson-Stevens Act (16 U.S.C. 1851), 
conservation and management measures shall be based upon the best 
scientific information available. The NMFS Southeast Regional Office 
(SERO) provided Regulatory Amendment 11, including analyses, to the 
SEFSC for both the initial review of Regulatory Amendment 11 and the 
``best available science'' certification. The SEFSC certified that the 
analyses of the proposed action contained in the environmental 
assessment and Regulatory Amendment 11 were based upon the best 
available scientific information. In addition, SEFSC staff served on 
the interdisciplinary plan team (IPT) for both Amendment 17B and 
Regulatory Amendment 11 to the FMP. IPT members serve numerous roles 
during the development of an amendment, including analyzing the 
anticipated effects of the proposed actions.
    At its April 5-7, 2011, meeting, the Council's SSC reviewed a 
Regulatory Amendment 11 issues paper including alternatives under 
consideration and a presentation titled ``Preliminary data analyses to 
support Snapper-Grouper Regulatory Amendment 11.'' The SSC discussed 
Regulatory Amendment 11 and provided comments on Regulatory Amendment 
11 in its written report of the meeting and in a presentation to the 
Council at the June 2011 Council meeting. At that meeting, the SSC 
chair noted in her presentation of the results of the April 2011 SSC 
meeting to the Council that the 240-ft (73-m) prohibition seemed 
counterintuitive to the intent of protecting speckled hind and warsaw 
grouper because of where the fish are primarily found.
    Comment 4: One commenter stated that Regulatory Amendment 11 
prioritizes short-term economic considerations over the Magnuson-
Stevens Act's conservation measures

[[Page 27379]]

deemed essential to preventing overfishing.
    Response: National Standard 1 of the Magnuson-Stevens Act (16 
U.S.C. 1851) states that management measures shall both ``prevent 
overfishing while achieving, on a continuing basis, the optimum yield 
(OY).'' National Standard 8 of the Magnuson-Stevens Act states that, 
consistent with the conservation requirements of the Magnuson-Stevens 
Act, management measures shall, ``to the extent practicable, minimize 
adverse economic impacts on such communities.'' The Magnuson-Stevens 
Act provides for flexibility in the specific conservation and 
management measures used to achieve conservation goals. When a 
quantitative analysis of overfishing is absent, the Councils and NMFS 
must rely on informed judgment to weigh the costs and benefits of a 
proposed regulation to strike a balance between preventing overfishing, 
achieving optimum yield, and minimizing impacts to fishing communities. 
The Council and NMFS evaluated the costs and benefits to the biological 
and socio-economic environments of the 240-ft (73-m) prohibition, using 
the best scientific information available, as well as scientific 
recommendations from the SEFSC and the Council's SSC, and public 
comments. The Council and NMFS concluded that the 240-ft (73-m) 
prohibition is not an effective means to reduce discard mortality of 
speckled hind and warsaw grouper, has significant socio-economic 
effects to deep-water snapper-grouper fishers, particularly to those 
harvesting blueline tilefish, and hinders the snapper-grouper fishery's 
ability to achieve OY.
    The Council's SSC was not able to determine if the 240-ft (73-m) 
prohibition is needed to end overfishing of either speckled hind or 
warsaw grouper. However, as discussed in the response to comments 1 and 
2, the Council and NMFS have implemented actions to eliminate the 
harvest and reduce the discard mortality of speckled hind and warsaw 
grouper. The Council and NMFS have concluded, based on new scientific 
information presented to them following the implementation of Amendment 
17B to the FMP, that the 240-ft (73-m) prohibition is not an effective 
means to reduce the discard mortality of speckled hind and warsaw 
grouper, and other measures would be more effective in reducing discard 
mortality while minimizing the socio-economic effects.
    The economic hardship imposed on fishermen from the 240-ft (73-m) 
prohibition is greater than was projected when Amendment 17B to the FMP 
was approved by the Council. During the development and implementation 
of Amendment 17B to the FMP, in April of 2010, the SSC recommended an 
ABC of 49,221 lb (22,326 kg), whole weight, for blueline tilefish. 
Therefore, at the time the deep-water prohibition was being approved 
and implemented, the economic impacts from a prohibition of blueline 
tilefish were not substantial due to the anticipated low level of 
future allowable catch.
    However, the SSC, at its April 2011 meeting, significantly 
increased the blueline tilefish ABC recommendation to 592,602 lb 
(268,780 kg), whole weight, to represent what they considered an 
expanding fishery north of Cape Hatteras, North Carolina, that resulted 
in increased commercial landings in recent years. In the Comprehensive 
ACL Amendment, the Council set the ACL equal to the ABC. Using an 
average ex-vessel price of $1.56 per lb, whole weight, the annual 
economic loss to commercial vessels landing blueline tilefish from the 
240-ft (73-m) prohibition is estimated to be $438,114. Therefore, the 
continued prohibition of blueline tilefish harvest beyond a 240-ft (73-
m) depth would result in significantly greater economic losses to a 
segment of commercial snapper-grouper fishers than originally 
anticipated when the Council approved Amendment 17B to the FMP for 
submission to NMFS.
    Comment 5: NMFS and the Council previously determined that a 
landings prohibition was not sufficient to end overfishing of speckled 
hind and warsaw grouper and that the deep-water snapper-grouper 
prohibition was necessary for this purpose.
    Response: NMFS has reviewed the text of Amendment 17B to the FMP, 
Regulatory Amendment 11, and the proposed and final rules for Amendment 
17B to the FMP. The statement that a landings prohibition is not 
sufficient to end overfishing of speckled hind and warsaw grouper 
occurs only once in these documents. In the preamble's classification 
section of the final rule for Amendment 17B to the FMP, NMFS states the 
following, ``The second alternative to the final action would establish 
an ACL of zero for speckled hind and warsaw grouper but would not close 
any areas to fishing for deep-water species that co-occur with these 
two species. Although this alternative would have smaller negative 
economic effects on small entities than the final action, it would not 
be sufficient to end overfishing of speckled hind and warsaw grouper 
due to discard mortality from fishing for other co-occurring deep-water 
species.'' (75 FR 82280, December 30, 2010). However, this previous 
statement appears to have been made in error, as NMFS finds no record 
to support that conclusion. The Council and NMFS's decisions are based 
on the best scientific information available, including new information 
provided since the implementation of Amendment 17B to the FMP, that the 
prohibition on harvest of six deep-water snapper-grouper species 
beginning at a 240-ft (73-m) depth is not an effective means to reduce 
discard mortality of speckled hind and warsaw grouper.
    NMFS states the following in the final rule to Amendment 17B to the 
FMP: (1) Speckled hind and warsaw grouper are extremely vulnerable to 
overfishing; (2) action must be taken to ensure overfishing is ended 
and does not occur; (3) the incidental catch of these species may be 
responsible for the continued overfishing; (4) the deep-water 
prohibition is intended to reduce depth-related bycatch mortality to 
reduce the probability that overfishing will occur; and (5) the 
implementation of the deep-water prohibition does not preclude the 
Council from proposing future action to modify the prohibition if 
scientific information indicates it is appropriate to do so. Because 
new scientific information has demonstrated that the 240-ft (73-m) 
prohibition to the harvest of six deep-water snapper-grouper species is 
not an effective means to reduce bycatch of speckled hind and warsaw 
grouper, and the action is having unnecessary and unanticipated 
negative socio-economic effects, the Council and NMFS are removing the 
240-ft (73-m) prohibition through Regulatory Amendment 11 and are 
developing more effective means to enhance measures currently in place 
to protect these species.
    Comment 6: Several commenters stated that the deep-water snapper-
grouper prohibition does not enhance protection for the species it 
intends to protect. Many fishermen reported that they never caught 
speckled hind and warsaw grouper when targeting snowy grouper, 
tilefish, and queen snapper in deep water. Others stated that deep-
water species receive little fishing pressure as it requires specific 
skills and knowledge (such as knowledge of bottom structure and fish 
location), significant financial investment, and specific equipment 
such as specialized vessels, to harvest these species. Rising fuel 
costs have also reduced effort for deep-water snapper-grouper species. 
One individual stated that spatial closures in shallow depths 
encompassing the shelf edge, with 160 ft (49 m) as the inshore depth 
limit, would have been more effective in

[[Page 27380]]

protecting speckled hind and warsaw grouper from discard mortality than 
a prohibition of six deep-water snapper-grouper species starting at a 
240-ft (73-m) depth, and NMFS should focus management on places where 
these two species are being impacted to a greater degree. Commenters 
noted that, in deciding the location of the spatial closures, 
information should be utilized from technical divers, conservation-
minded fishermen with direct knowledge of shelf-edge habitats, 
scientists who have completed studies on the shelf edge and further 
off-shore, and bottom habitat maps of the shelf edge and deeper waters.
    Response: NMFS agrees that, in addition to the current measures to 
protect speckled hind and warsaw grouper, the Council should focus on 
spatial closures in shallower depths to further reduce discard 
mortality of these species. The Council is currently developing CE-BA 
3, which considers additional measures to reduce bycatch of speckled 
hind and warsaw grouper, including the expansion of currently 
established MPAs and the establishment of new mid-shelf MPAs. The 
public, fishermen, and scientists will be given opportunities to 
provide input through the Council process, which includes meetings of 
the Council's Advisory Panels and SSC. The Council will be holding 
public workshops in 2012 where the public may provide input on 
management measures to protect speckled hind and warsaw grouper. The 
Habitat and Environmental Protection and the Coral Advisory panels will 
be given the opportunity to provide advice and knowledge concerning 
known locations of fish habitats important for speckled hind and warsaw 
grouper, including the shelf-edge habitat. The Council held public 
scoping meetings on CE-BA 3 from January 24-February 2, 2011. There 
will be other opportunities for the Council to receive public input on 
this issue.
    Comment 7: The analysis presented in the SERO Catch Analysis (June 
1, 2011, SERO-LAPP-2011-06 Report) is insufficient to draw conclusions 
about species associations because it lacks any information to evaluate 
the uncertainty in the hierarchical clustering and dimension reduction 
results. One way of assessing the uncertainty in clustering analyses is 
through bootstrap re-sampling which produces probabilities that allow 
us to assess the uncertainty associated with the model outputs. To our 
knowledge, this was not done.
    Response: At the time the catch analysis was developed, the authors 
of the species groupings analysis (June 1, 2011, SERO-LAPP-2011-06 
Report) were unaware of the application of the bootstrap re-sampling 
technique to determine the uncertainty of the results from a 
hierarchical cluster analysis. However, using another method to address 
uncertainty and to reduce the relative impacts of the outcomes of any 
one cluster analysis, NMFS applied four different clustering methods to 
each of five different fishery-dependent and two fishery-independent 
data sources, then developed a methodology for aggregating the result 
of these analyses across clusters to form a weighted mean cluster 
association index. The SEFSC certified on October 26, 2011, that the 
analyses of the proposed action contained in the environmental 
assessment and Regulatory Amendment 11 were based upon the best 
available scientific information.

Classification

    The Regional Administrator, Southeast Region, NMFS has determined 
that this final rule is necessary to more efficiently manage the 
species within Regulatory Amendment 11 and is consistent with the 
Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here.
    No substantive comments were received on the certification provided 
in the proposed rule (76 FR 78879, December 20, 2011). Based on the 
information provided in the proposed rule, the Chief Counsel for 
Regulation of the Department of Commerce certified to the Chief Counsel 
for Advocacy of the Small Business Administration this final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities. As a result, a final regulatory flexibility 
analysis was not required and none was prepared.
    NMFS finds good cause under 5 U.S.C. 553(d)(1) to waive the delay 
in the effective date for this rule because this rule relieves a 
restriction by removing the harvest and possession prohibition of six 
deep-water snapper-grouper species from depths greater than 240 ft (73-
m) in the South Atlantic EEZ. These measures will benefit commercial 
and recreational fishermen. Additionally, the immediate effectiveness 
of this final rule will allow fishermen to more effectively harvest 
deep-water snapper-grouper species (snowy grouper, blueline tilefish, 
yellowedge grouper, misty grouper, queen snapper, and silk snapper). 
Delaying implementation of these measures could result in snapper-
grouper fishermen not having the opportunity to achieve OY from these 
stocks, because the sectors would have insufficient time to harvest the 
quota increase before the fishing year's end. A delay would thus 
diminish the social and economic benefits for deep-water snapper-
grouper fishermen this final rule provides, and undermine part of the 
purpose of the rule itself. Finally, this rule creates no new duties, 
obligations, or requirements for the regulated community that would 
necessitate delaying this rule's effectiveness to allow them to come 
into compliance with it. Thus, this rule is made effective upon 
publication.

List of Subjects in 50 CFR Part 622

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

    Dated: May 4, 2012.
Paul N. Doremus,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

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

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

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

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


Sec.  622.35  [Amended]

0
2. In Sec.  622.35, paragraph (o) is removed and reserved.

[FR Doc. 2012-11307 Filed 5-9-12; 8:45 am]
BILLING CODE 3510-22-P