Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Fishery Management Plans of the South Atlantic Region (FMPs); Addition to Framework Provisions

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 622 and 640

[Docket No. 990506122-9284-02; I.D.020899A]

RIN 0648-AL42

Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;

Fishery Management Plans of the South Atlantic Region (FMPs); Addition

to Framework Provisions

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 that portion of the

Comprehensive Amendment Addressing Sustainable Fishery Act Definitions

and Other Required Provisions in Fishery Management Plans of the South

Atlantic Region (Comprehensive Amendment) that modifies the framework

procedures in the South Atlantic Fishery Management Council's FMPs to

allow the addition of biomass levels and age-structured analyses to

these FMPs. The intended effect is to provide a more timely mechanism

for incorporating biomass levels and age-structured analyses into the

FMPs when such information becomes available.

DATES: This final rule is effective December 2, 1999.

FOR FURTHER INFORMATION CONTACT: Roy Crabtree, 727-570-5305.

SUPPLEMENTARY INFORMATION: The Comprehensive Amendment addresses

fisheries under the FMPs. The FMPs were prepared by the South Atlantic

Fishery Management Council (Council), except for the coastal migratory

pelagics and spiny lobster fishery management plans that were prepared

jointly by the South Atlantic and Gulf of Mexico Fishery Management

Councils. NMFS approved all of these FMPs and, except the FMP for spiny

lobster, implemented them under the authority of the Magnuson-Stevens

Fishery Conservation and Management Act

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(Magnuson-Stevens Act) by regulations at 50 CFR part 622. The Fishery

Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and

South Atlantic is implemented by regulations at 50 CFR part 640.

On February 18, 1999, NMFS announced the availability of the

Comprehensive Amendment and requested comments on it (64 FR 8052).

After considering the comments received, NMFS only partially approved

the Comprehensive Amendment on May 18, 1999. NMFS disapproved the

rebuilding schedules for all grouper species, red snapper, and red

drum. These rebuilding schedules exceed 10 years and NMFS advised the

Council that the rebuilding schedules must be estimated and explained

in a more explicit manner consistent with the national standard

guidelines. NMFS partially approved the stock status determination

criteria because they are incomplete and, thus, do not totally fulfill

the relevant requirements of the Magnuson-Stevens Act and the national

standard guidelines. The Council must provide biomass-based estimates

of maximum sustainable yield (MSY) and minimum stock size threshold for

each stock in addition to the fishing mortality-based proxies provided

in the Comprehensive Amendment.

On May 24, 1999, NMFS published a proposed rule to implement those

approved Comprehensive Amendment measures requiring rulemaking and

requested comments on the rule (64 FR 27952). The background and

rationale for the measures in the Comprehensive Amendment and proposed

rule are contained in the preamble to the proposed rule and are not

repeated here.

Comments and Responses

NMFS received nine written comments during the public comment

period on the Comprehensive Amendment and proposed rule. A summary of

the comments and NMFS' responses follow.

Comment 1: One commenter commented that the environmental

assessment (EA) included in the amendment is inadequate and that an

environmental impact statement (EIS) is required. The commenter stated

that the National Environmental Policy Act requires NMFS and the

Council to provide an EIS and recommended that NMFS disapprove the

Council's EA and require a supplemental EIS.

Response: NMFS disagrees and concurs with the Council's statement

that because the action will not have a significant effect on the human

environment an EIS is not required. The amendment authorizes no

specific regulatory actions that would affect fish stocks or the

environment. The need for an EIS will be evaluated as regulatory

measures are implemented to achieve the goals of the Comprehensive

Amendment.

Comment 2: Two commenters commented that the rebuilding plans for

overfished species in the Comprehensive Amendment do not comply with

the requirements of the Magnuson-Stevens Act. Both also commented that

the Council's actions to end overfishing in the snapper-grouper fishery

are inadequate.

Response: NMFS concurs that the rebuilding schedules proposed in

the Comprehensive Amendment are incomplete and do not fully comply with

the requirements of the Magnuson-Stevens Act. NMFS disapproved the

rebuilding schedules for all grouper species, red snapper, and red drum

and is committed to working with the Council to provide the additional

information necessary to bring all stock rebuilding schedules into

compliance with the requirements of the Magnuson-Stevens Act. NMFS

believes that the resource conservation measures in Amendment 9 to the

FMP for the Snapper-Grouper Fishery off the Southern Atlantic States

that it approved and implemented in 1999 (64 FR 3624; January 25, 1999)

are precautionary and will sufficiently reduce fishing mortality to

initiate the recovery of overfished stocks and to prevent overfishing

of others. As new stock assessments are completed for snapper-grouper

species, the Council and NMFS will evaluate the need for additional

measures to prevent overfishing. For example, the recent red porgy

assessment indicated that the measures contained in Amendment 9 were

insufficient to prevent overfishing of this stock. Consequently, the

Council requested and NMFS agreed to issue an emergency rule to

prohibit the harvest of red porgy (September 3, 1999; 64 FR 48324). The

Council is currently developing longer term red porgy conservation

measures.

Comment 3: Three commenters objected to the provisions of the

Comprehensive Amendment regarding the reporting and minimization of

bycatch. All commented that additional bycatch reporting is needed to

quantify bycatch and that additional measures were required to reduce

bycatch.

Response: NMFS believes that the Council has taken actions to

reduce bycatch to the maximum extent practicable. Furthermore, the

Council is exploring additional approaches, such as marine reserves, to

address problems in the snapper-grouper fishery where the release

mortality of regulatory discards is high. The Council is also reviewing

the rock shrimp fishery to determine if additional measures are

required to reduce bycatch. NMFS believes that the improved reporting

requirements specified in the Atlantic Coastal Cooperative Statistics

Program and NMFS' plans to incorporate a bycatch reporting requirement

in all mandatory logbooks currently in use (expected by January 1,

2001) will significantly improve bycatch reporting and will fulfill the

requirements of the Magnuson-Stevens Act. NMFS and the Council

recognize that as additional bycatch information becomes available

through improved bycatch reporting measures, additional action may be

needed to further reduce bycatch.

Comment 4: Three commenters commented that the Comprehensive

Amendment fails to adequately discuss the fair and equitable allocation

of fishery resources among various sectors of the fishery. In

particular, these groups objected to the sale of fish caught under the

recreational bag limit.

Response: The Comprehensive Amendment addresses bycatch,

overfishing definitions, and rebuilding schedules; however, the

amendment proposes no regulatory actions that directly affect

allocations. Therefore, the issue of fair and equitable allocations and

the sale of fish caught under the recreational bag limit are issues

outside the scope of this amendment.

Comment 5: Three commenters commented that the Council's actions to

reduce bycatch in the recreational sector are inadequate and do not

meet the Magnuson-Stevens Act requirement to reduce bycatch.

Response: NMFS disagrees. The Council and NMFS believe that the

mortality rate of regulatory discards in shallow-water fisheries such

as red drum, and in surface-water pelagic fisheries such as king

mackerel, is low and has been minimized to the maximum extent

practicable. NMFS and the Council recognize that the mortality rates of

deep-water snapper-grouper species may be high and that additional

steps may be required to reduce bycatch in that fishery. In the

Comprehensive Amendment, the Council states its intent to continue to

explore new methods to manage the snapper-grouper fishery and reduce

bycatch. For example, the Council has previously established an

experimental closed area (i.e., Oculina Bank habitat area of particular

concern) to study the benefits of marine reserves and is currently

examining the potential for using such marine reserves as a management

tool for the snapper-grouper fishery. NMFS

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stock assessments take into account the number and size of fish

released by the recreational sector and the mortality rate of these

fish. This source of mortality is considered in the allocation of

fishery resources among sectors.

Comment 6: One commenter stated that closures of fisheries are not

necessary and that pollution is the major factor reducing populations

of marine fishes. Another commenter expressed concerns that the effects

of pollution and natural variations on marine stocks were not discussed

in the amendment.

Response: NMFS agrees that pollution is a significant problem

adversely affecting many species of marine fish. NMFS also recognizes

that significant natural fluctuations occur in marine fish stocks even

in the absence of a fishery. However, NMFS is required by the Magnuson-

Stevens Act to take steps to prevent overfishing and rebuild overfished

stocks. To meet this requirement, reductions in catch and closures of

some fisheries are justified and necessary. The existence of pollution

or natural variations in stocks does not alter the need to control

fishing mortality.

Comment 7: Two commenters commented that the Comprehensive

Amendment fails to account for the effect of fishing regulations on

fishing communities.

Response: The Comprehensive Amendment identifies and describes

fishing communities using the best available data and also describes

additional data needed to better evaluate the effect of future

regulatory actions on fishing communities. As future regulatory actions

are proposed by the Council under its FMPs, the Council and NMFS will

consider the anticipated effects on fishing communities as required by

section 303(a)(9) of the Magnuson-Stevens Act.

Comment 8: One commenter commented that specifying MSY and the

maximum fishing mortality threshold (MFMT) at the same level is not

precautionary. They recommend that NMFS disapprove the MFMT

specifications.

Response: NMFS disagrees. The Technical Guidelines state that the

MFMT must not exceed the fishing mortality rate associated with MSY but

allows the rate to be set equal to that at MSY.

Classification

The Regional Administrator, Southeast Region, NMFS, with the

concurrence of the Assistant Administrator for Fisheries, NOAA,

determined that the approved measures of the Comprehensive Amendment

are necessary for the conservation and management of the fisheries off

the southern Atlantic states and that, with the exception of the

provisions that were disapproved, the Comprehensive Amendment is

consistent with the Magnuson-Stevens Act and other applicable law.

This final rule has been determined to be not significant for

purposes of E.O. 12866.

The Chief Counsel for Regulation of the Department of Commerce

certified to the Chief Counsel for Advocacy of the Small Business

Administration that the proposed rule, if adopted, would not have a

significant economic impact on a substantial number of small entities.

No comments were received regarding this certification. As a result, a

regulatory flexibility analysis was not prepared.

List of Subjects

50 CFR Part 622

Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping

requirements, Virgin Islands.

50 CFR Part 640

Fisheries, Fishing, Incorporation by reference, Reporting and

recordkeeping requirements.

Dated: October 26, 1999.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR parts 622 and 640

are amended as follows:

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

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

follows:

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

2. In Sec. 622.48, the introductory text and paragraphs (c), (f),

(g), and (h) are revised to read as follows:

Sec. 622.48 Adjustment of management measures.

In accordance with the framework procedures of the applicable FMPs,

the RD may establish or modify the following items:

* * * * *

(c) Coastal migratory pelagic fish. For cobia or for a migratory

group of king or Spanish mackerel: Biomass levels, age-structured

analyses, MSY, overfishing level, TAC, quota (including a quota of

zero), bag limit (including a bag limit of zero), minimum size limit,

vessel trip limits, closed seasons or areas, gear restrictions (ranging

from regulation to complete prohibition), reallocation of the

commercial/recreational allocation of Atlantic group Spanish mackerel,

and permit requirements.

* * * * *

(f) South Atlantic snapper-grouper and wreckfish. For species or

species groups: Biomass levels, age-structured analyses, target dates

for rebuilding overfished species, MSY, ABC, TAC, quotas, trip limits,

bag limits, minimum sizes, gear restrictions (ranging from regulation

to complete prohibition), and seasonal or area closures.

(g) South Atlantic golden crab. Biomass levels, age-structured

analyses, MSY, ABC, TAC, quotas (including quotas equal to zero), trip

limits, minimum sizes, gear regulations and restrictions, permit

requirements, seasonal or area closures, time frame for recovery of

golden crab if overfished, fishing year (adjustment not to exceed 2

months), observer requirements, and authority for the RD to close the

fishery when a quota is reached or is projected to be reached.

(h) South Atlantic shrimp. Biomass levels, age-structured analyses,

BRD certification criteria, BRD specifications, BRD testing protocol,

certified BRDs, nets required to use BRDs, and times and locations when

the use of BRDs is required.

* * * * *

PART 640--SPINY LOBSTER FISHERY OF THE GULF OF MEXICO AND SOUTH

ATLANTIC

3. The authority citation for part 640 continues to read as

follows:

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

4. A new Sec. 640.25 is added to subpart B to read as follows:

Sec. 640.25 Adjustment of management measures.

In accordance with the framework procedure of the Fishery

Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and

South Atlantic, the RD may establish or modify the following items:

Biomass levels, age-structured analyses, limits on the number of traps

fished by each vessel, construction characteristics of traps,

specification of gear and vessel identification requirements,

specification of allowable or prohibited gear in a directed fishery,

specification of bycatch levels in non-directed fisheries, changes to

soak or removal periods and requirements for traps, recreational bag

and possession limits, changes in fishing seasons, limitations on use,

possession, and handling of

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undersized lobsters, and changes in minimum size.

[FR Doc. 99-28478 Filed 11-1-99; 8:45 am]

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