Reef Fish Fishery of the Gulf of Mexico; Red Grouper Size Limit

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 960123012-6196-02; I.D. 011995A]

RIN 0648-AF78

Reef Fish Fishery of the Gulf of Mexico; Red Grouper Size Limit

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; withdrawal.

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SUMMARY: NMFS announces that it is withdrawing the proposed rule to

change the minimum allowable size of red grouper, currently 20 inches

(50.8 cm), to 18 inches (45.7 cm) for persons not subject to the bag

limit.

DATES: This proposed rule is withdrawn on July 31, 1996.

FOR FURTHER INFORMATION CONTACT: Michael E. Justen, 813-570-5305.

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico

is managed under the Fishery Management Plan for Reef Fish Resources of

the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico

Fishery Management Council (Council) and is implemented by regulations

at 50 CFR part 622 (formerly at 50 CFR part 641).

Under the framework procedure for adjusting FMP management

measures, the Council proposed a regulatory amendment (RA) (50 CFR part

641) to change the minimum allowable size for red grouper from 20

inches (50.8 cm) to 18 inches (45.7 cm) for persons not subject to the

bag limit. The proposed rule to implement the RA was published in the

Federal Register on January 31, 1996 (61 FR 3369); comments were

requested on or before March 1, 1996. Five members of the Council

submitted a minority report opposing the RA. NMFS specifically

requested comments on the following concerns: (1) Long- and

[[Page 39941]]

short-term economic and social effects of the rule; (2) potential for

creating user conflicts; (3) consistency with the Magnuson Act's

National Standards and with certain FMP objectives; and (4)

difficulties with enforcing differential minimum size limits for the

commercial and recreational fisheries.

NMFS received written comments from 586 entities on the

advisability of the 18-inch (45.7-cm) minimum size limit. All but one

commenter were from Florida.

Summary of Public Comments and Agency Responses

1. Long- and Short-Term Economic and Social Effects

Comment: Thirty-three commenters provided information on this

issue. Five commercial associations and one commercial fisherman

supported the reduction in minimum size. They believed the long- and

short-term socioeconomic effects on recreational and commercial

fisheries would be positive; that is, the rule would result in an

increase of 5 to 10 percent in gross income. These commenters did not

expect a derby fishery to develop as a result of the proposed minimum

size reduction.

Twenty-seven commenters opposed the minimum size reduction for

socioeconomic reasons. Six charter vessel/headboat operators stated

that commercial fishermen would obtain more profits but would

experience a fishery closure due to the quota being reached. They

believed reduction in the size limit would cause negative responses

among recreational anglers because few legal sized red grouper would be

available for recreational anglers. They suggested that the smaller

commercial size limit would devastate the resource because 18-inch fish

(45.7-cm) would not have a chance to reproduce potentially causing a

negative long term socioeconomic impact. These commenters believed that

charterboat income and Florida's sales tax receipts would decrease.

Eight commercial fishermen stated that the commercial fishery would

experience a short-term increase in income but ultimately would

experience a long-term loss because the red grouper resource could not

withstand the increased fishing pressure. They feared that if the quota

were reached, and NMFS closed the fishery, very few fishermen could

financially withstand the closure. They contended that a derby fishery

would develop in future years similar to what has happened in the red

snapper fishery. They also stated that the influx of smaller fish would

depress market prices and reduce overall income to fishermen.

The Florida Department of Environmental Protection (FDEP) and

Florida Marine Fisheries Commission (FMFC) stated that the proposed

reduction in the size limit would not create any benefits.

In a minority report, five Council members stated they expected a

short-term glut of 18- to 20-inch (45.7- to 50.8- cm) fish and cited

testimony from dealers and fishermen indicating that smaller fish could

result in size grading and reduced values.

One individual suggested that the commercial fishery would benefit

in the short term but suffer in the long term due to overfishing. One

recreational association indicated that the smaller size limit would

cause overfishing. Four recreational anglers stated that no benefits

would result from the reduction in the size limit.

Response: NMFS agrees with the 27 commenters that any short-term

benefit to the commercial fishery would be offset by negative long- and

short-term socioeconomic effects on the recreational fishery and by

negative long-term socioeconomic effects on the commercial fishery.

2. Potential for User Conflicts

Comment: Thirty-one commenters provided information on this issue.

Five commercial associations and one commercial fisherman supported the

minimum size limit reduction. They believed it would minimize the

potential for user conflicts because commercial fishermen target larger

fish in deeper waters where recreational fishermen generally do not

operate and the sedentary nature of red grouper should keep the two

fisheries separated.

Twenty-five commenters opposed a reduction in the minimum size

limit because of user conflict concerns. Six charter vessel/headboat

operators stated that recreational anglers would object to commercial

fishermen taking smaller fish and recommended the same size limit for

all fishermen. Seven commercial fishermen were concerned about the

potential for conflicts due to recreational anglers blaming commercial

fishermen for the unavailability of 20-inch (50.8-cm) fish. They

believed user conflicts would arise as commercial fishermen move

shoreward to catch the smaller fish.

The FDEP and FMFC stated that the smaller commercial minimum size

limit would cause conflicts between user groups.

Five Council members stated in a minority report that most

recreational anglers opposed the size limit change.

One individual and one recreational association stated that the

smaller commercial size limit would cause conflicts between the

commercial and recreational fishermen. Three recreational anglers

supported no change in the current commercial size limit because

minimal conflicts occur under existing regulations.

Response: NMFS agrees with the 25 commenters that the smaller

commercial size limit would cause conflicts between the commercial and

recreational fishermen.

3. Consistency With the Magnuson Act's National Standards and With

Certain FMP Objectives

Comment: Twenty commenters provided information on this issue. Five

commercial associations and one commercial fisherman supporting the

minimum size reduction doubted the smaller commercial minimum size

limit would cause commercial landings to reach the annual quota (9.8

million pounds, 4.45 million kg) for the shallow water grouper complex

which includes red grouper. The commercial fisherman did not believe

that the change in the commercial size limit would alter fishing

patterns. These commenters concluded that the proposed reduction in

minimum size is consistent with the Magnuson Acts National Standards

and the FMP objectives.

Fourteen commenters opposed reduction in the commercial minimum

size limit for reasons relating to the National Standards or FMP

objectives. Two charter vessel/headboat operators and five commercial

fishermen contended that reduction in the commercial size limit would

lead to overfishing, a derby fishery, and conflicts with recreational

fishermen. The FDEP stated that the reduction was inconsistent with the

Magnuson Act's National Standards. In a minority report, five Council

members contended that the smaller size limit was contrary to the

Magnuson Act and certain FMP objectives because it might result in

overfishing, a derby fishery, and conflicts with the recreational

sector. A recreational angler stated the reduction discriminated

against his user group.

Response: NMFS agrees with the 14 commenters to the extent that the

proposed reduction in the commercial size limit is inconsistent with

National Standard 1 and certain FMP objectives (i.e., FMP Objective 4--

minimize user conflicts; FMP Amendment 1, Objective 7--maximize net

economic benefits; FMP Amendment 8 Objective 3--protect juveniles; and

FMP Amendment 8, Objective 2--avoid a derby fishery).

[[Page 39942]]

4. Difficulties With Enforcing Differential Size Limits

Comment: Thirty commenters provided information on this issue. Five

commercial associations and one commercial fisherman stated that

different size limits for recreational and commercial fishermen were

enforceable because commercial fishermen must have a Federal permit to

operate and, therefore, would be readily distinguishable from

recreational fishermen. They noted the concept of different size limits

for recreational and commercial fishermen has been tested and found

acceptable, from the enforcement standpoint, in the amberjack and red

snapper fisheries in the Gulf of Mexico.

Twenty-four commenters indicated that differing recreational and

commercial minimum size limits complicate enforcement, especially when

Federal and state size limits differ. Four charter vessel/headboat

operators and eight commercial fishermen commented that compatible

Federal and state regulations would simplify enforcement of minimum

size limits. The FDEP, the Florida Department of Community Affairs

(FDCA), and the FMFC believe that Federal regulations different from

the state's would adversely impact Florida's ability to enforce its

regulations.

The five Council members who filed a minority report pointed out

that a size limit for red grouper that differs from the size limit for

other grouper species would make enforcement more difficult.

Response: NMFS agrees with the 25 commenters that different minimum

size limits for recreational and commercial fisheries would complicate

enforcement, especially since Federal and Florida's size limits would

be different.

5. Consistency With Florida's Coastal Management Plan

Comment: On November 28, 1995, the FDCA notified the Council that

the proposed minimum size reduction is inconsistent with Florida's

Coastal Management Program. Florida has a 20-inch (50.8-cm) commercial

minimum size limit for red grouper, and the FDCA claimed that reducing

the Federal size limit to 18 inches (45.7-cm) would undermine Florida's

efforts to manage its fishery resources. Florida also opposed the size

reduction because 18-inch red grouper are sexually immature, and

harvesting red grouper prior to reproduction increases the potential

for overfishing.

Response: Disapproval of the regulatory amendment renders Florida's

inconsistency determination moot.

6. Summary of Public Responses

During the comment period, 586 commenters provided written comments

on the advisability of implementing the proposed 18-inch 45.7-cm)

minimum size limit for red grouper. All but one commenter was from

Florida. Table 1 summarizes the responses.

[[Page 39943]]

Table 1.--Comments on the Proposal To Reduce the Commercial Minimum Size

Limit for Red Grouper to 18 Inches (45.7 cm)

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Constituent group For Against *Other

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Commercial Associations......................... 5 ........ .......

Charter Vessel/Headboat Operators............... 3 9 1

Commercial Fishermen............................ 2 84 .......

Environmental Groups............................ ... ........ 1

State Government Agencies....................... 1 3 .......

Gulf Council (Minority Report).................. ... 5 .......

Private Individuals............................. 12 140 1

Recreational Associations....................... ... 4 .......

Recreational Anglers............................ ... 314 1

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Total..................................... 23 559 4

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*Commenters who did not take a position on the size limit

Agency Decision

After reviewing the RA, supporting documents, minority report, and

comments received during the public comment period, NMFS has concluded

that the proposed reduction in the commercial size limit is neither

necessary nor appropriate for the conservation and management of red

grouper. In particular, it is likely that the smaller commercial size

limit would create conflicts between commercial and recreational

fishermen and would not result in long-term benefits to the fisheries.

NMFS is also concerned about the ineffectiveness of the proposed

commercial size limit in preventing overfishing as required under

National Standard 1 of the Magnuson Act. Accordingly, NMFS has

disapproved the RA and withdraws the proposed rule to change the

minimum size limit for red grouper for persons not subject to the bag

limit.

This action has been determined to be not significant for purposes

of E.O. 12866.

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

Dated: July 25, 1996.

Charles Karnella,

Acting Deputy Assistant Administrator for Fisheries, National Marine

Fisheries Service.

[FR Doc. 96-19464 Filed 7-30-96; 8:45 am]

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