00-12578. Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Gag, Red Grouper, and Black Grouper Management Measures

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement a regulatory amendment prepared by the Gulf of Mexico Fishery Management Council (Council) in accordance with framework procedures for adjusting management measures in the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). This final rule increases the commercial and recreational minimum size limits for gag and black grouper; prohibits the commercial harvest and the sale or purchase of gag, black grouper, and red grouper from February 15 to March 15 each year; and establishes two areas in the eastern Gulf of Mexico that are closed to all fishing, except fishing for highly migratory species. The intended effect of this final rule is to protect the spawning aggregations for these species and to prevent overfishing.

DATES:

This final rule is effective June 19, 2000.

ADDRESSES:

Copies of the final regulatory flexibility analysis (FRFA) may be obtained from the Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702, telephone: [phone], fax: [phone], email: [e-mail].

FOR FURTHER INFORMATION CONTACT:

Dr. Roy E. Crabtree, telephone: [phone], fax: [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

The reef fish fishery in the Gulf of Mexico EEZ is managed under the FMP. The FMP was prepared by the Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

In accordance with the framework procedures of the FMP, the Council recommended, and NMFS published, a proposed rule (65 FR 4221, January 26, 2000) to increase the commercial and recreational minimum size limits for gag and black grouper; prohibit the commercial harvest and the sale or purchase of gag, black grouper, and red grouper harvested from the Gulf EEZ from February 15 to March 15 each year; and establish two areas in the eastern Gulf of Mexico (Madison and Swanson sites and Steamboat Lumps) that would be closed to all fishing, except fishing for highly migratory species (i.e., tunas, marlin, sailfish, swordfish, and oceanic sharks). The preamble to the proposed rule explained the need and rationale for these measures. Those descriptions are not repeated here.

After considering the comments received on the proposed rule, NMFS partially approved the regulatory amendment. The proposed additional increases in the recreational minimum size limit for gag and black grouper from 22 inches to 24 inches (55.9 cm to 61 cm), to be phased in over a 2-year period following implementation of this final rule, were disapproved (see Response to Comment 3 under “Comments and Responses” below).

Comments and Responses

Comment 1: Two Council members stated in their minority report that the proposed measures are insufficient to prevent overfishing and protect male gag. Specifically, they stated that the commercial 1-month closed season is too short to be effective. Several environmental groups also suggested that additional measures, including additional marine reserves, are needed to protect gag.

Response: NMFS agrees that additional measures to reduce fishing mortality will probably be required to achieve levels consistent with the Council's management objective. The Council's intent in preparing this amendment was to reduce overfishing to a level consistent with the 20-percent spawning potential ratio (SPR) management target in effect at the time it adopted final measures for the regulatory amendment. On November 17, 1999, NMFS approved a maximum fishing mortality threshold of 30-percent SPR for gag and black grouper, as proposed by the Council under its Generic Sustainable Fisheries Act Amendment to the Fishery Management Plans of the Gulf of Mexico. Additional reductions in fishing mortality will probably be needed to prevent this threshold from being exceeded. To address this concern, and other problems in the grouper fishery, the Council is developing an FMP amendment. NMFS agrees that the effectiveness of the 1-month closure of the commercial fishery could be reduced if, in response to the closure, fishing effort increases immediately before or after the closure; however, the closure will provide some reduction in fishing mortality and provide some protection to spawning aggregations. NMFS believes that additional measures to protect spawning aggregations may be required in the future; however, the 1-month closure is an appropriate step at this time.

Comment 2: A for-hire fishing organization and two Council members stated that the proposal to close two areas to all fishing exceeds the most restrictive alternative presented and discussed at public hearings and should be disapproved. A commercial fishing organization and a for-hire fishing organization questioned the need for closing the two areas to all fishing. Nine individuals and seven environmental organizations expressed strong support for the two closed areas and suggested the closure period should be extended beyond the 4-year period.

Response: This rule closes the two areas only to fisheries under the jurisdiction of the Council. The Council has requested that NMFS' Highly Migratory Species Division (HMS Division), Office of Sustainable Fisheries, issue a compatible rule prohibiting fishing for all Atlantic highly migratory species in these two areas. The HMS Division is currently considering this request and expects to take appropriate action soon. Any HMS Division's rulemaking action will involve proposed and final rules and will provide the opportunity for public comment on proposed measures. The Council recommended closure of the two areas to all fishing in order to reduce bycatch mortality of gag and black grouper and to improve enforcement of the closure to fishing.

The closure to all fishing under the Council's jurisdiction is a logical extension of the Council's earlier proposal that was the subject of public hearings and a workshop involving affected fishery participants and is based on public comments. This earlier proposal would have closed areas to all reef fish fishing and to the use of all bottom gear capable of catching reef fish. At the Council's March 1999 meeting, NMFS enforcement personnel stated that the areas should be closed to all fishing rather than just to fishing in one fishery to enhance enforcement significantly. At its July 1999 meeting and after receiving public comment on the selection of the two sites, the Council determined that a closure to all fishing was necessary to achieve the goals of the proposed measure.

NMFS has approved this measure along with its 4-year sunset provision as recommended by the Council. The Council may consider extending the duration of the closure, as appropriate, at some subsequent time.

Comment 3: Two Council members stated in their minority report that the proposed measures place an unfair and greater burden on the recreational sector than on the commercial fishery. Eighteen individuals objected to the proposal to increase the recreational minimum size limit and stated that regulations should reduce the commercial harvest only. Several individuals stated that reductions in the recreational bag limit would be more effective than increases in the minimum size limit since some released fish die as a result of capture trauma. A total of 277 individuals favored the increase in the recreational minimum size limit. In a minority report, four other Council members objected to the delay in the increase in the recreational minimum size limit to 24 inches (61.0 cm) and argued that an immediate increase to 24 inches (61.0 cm) is needed to reduce overfishing. A total of 279 individuals supported the increase in the commercial minimum size limit, and 3 individuals opposed this increase. Three environmental groups expressed support for the increased size limit and one expressed opposition.

Response: NMFS believes that minimum size limits are an appropriate and effective method of protecting immature fish in many fisheries. NMFS recognizes that the effectiveness of minimum size limits can be reduced if release mortality rates are high. In the shallow-water grouper recreational fishery and the hand-line commercial fishery, release mortality rates appear to be relatively low and, therefore, consistent with effective minimum size limits.

NMFS disagrees that regulations should affect only the commercial sector. Restrictions in both the recreational and commercial sectors should be equitable. The increase in the recreational minimum size limit to 22 inches (55.9 cm) and the measures intended to reduce the commercial harvest should result in an equitable harvest by each sector. NMFS believes that the proposed increase in the recreational minimum size limit from 22 to 24 inches (55.9 cm to 61.0 cm) could disproportionately reduce the recreational harvest compared to the commercial harvest reduction. Such an inequitable reduction in the harvest between the two sectors is contrary to national standard 4 and section 303(a)(14) of the Magnuson-Stevens Act. The administrative record indicates that the proposed increase in the minimum size limit from 22 inches to 24 inches (55.9 cm to 61.0 cm) in the recreational fishery would result in a disproportionally large reduction in the recreational harvest compared to the commercial harvest reduction resulting from the combined measures for the commercial fishery. Consequently, NMFS has disapproved the Council's proposed increase in the recreational minimum size limit from 22 inches to 24 inches (55.9 cm to 61.0 cm). NMFS will consider further minimum size limit changes for the recreational fishery if the Council proposes measures that ensure equitable reductions in the harvest by each sector. NMFS believes that the Council can resolve this issue later this year as it develops a comprehensive FMP amendment to address problems in the shallow-water grouper fishery.

The Council considered, but did not recommend, establishing a separate bag limit for gag. The current bag limit of five fish is an aggregate bag limit for shallow-water grouper. The Council considered analyses indicating that harvest would not be reduced significantly by setting a gag bag limit of two fish per person per day because few individuals land more than two fish. The Council may choose to reconsider bag limit reductions as it develops an FMP amendment to address conservation and management issues in the grouper fishery.

Comment 4: Four Council members, a commercial fishing organization, and a for-hire fishing organization stated that the proposed measures are not based upon the best available science. Specifically, a Council minority report questioned the need for the protection of male gag and the scientific information indicating a recent declining proportion of male gag in the Gulf of Mexico. The for-hire organization objected to the use of SPR as a valid reference point upon which to base management decisions. Conversely, two individuals and five environmental organizations argued that the measures are based on the best available science, which they believe particularly supports the need to protect male gag through closed areas.

Response: NMFS believes that the approved measures are based on the best available science and are consistent with the precautionary approach to fisheries management. Uncertainty regarding scientific information does not preclude precautionary management action. Sufficient scientific information suggests that the proportion of males in the Gulf gag stock has decreased as a result of heavy exploitation. NMFS is concerned that the loss of males and the fishing effort on spawning aggregations could disrupt spawning and ultimately reduce recruitment. It is uncertain to what extent males have been depleted and whether such depletion has affected spawning success. However, closure of two areas to allow further study of this issue is an appropriate precautionary management measure.

SPR is an appropriate proxy for fishing mortality and, thus, an appropriate reference point upon which to base management decisions that are intended to address overfishing. The intent of this final rule is to reduce and prevent overfishing; thus, the use of SPR in this context is appropriate.

Comment 5: Four Council members stated in their minority report that the 1-month closure of the commercial fishery only is not fair and equitable to all fishermen and should be disapproved based on national standard 4. An organization representing the commercial fishing industry, one environmental group and 25 individuals also objected to the 1-month closure of the commercial fishery. Many of these individuals explicitly objected to the lack of prior notice regarding the closure during 2000 and stated that uncertainty regarding the closure in 2000 interfered with efficient fishing operations. An additional 273 individuals questioned the effectiveness of a 1-month closure. They stated that effort would be shifted to other months and that ex-vessel prices would decrease as a result of the closure. Seventeen individuals and three environmental groups expressed support for the 1-month closure, although many of these believed that the closure should be extended to encompass the entire spawning season (3-4 months). Some individuals also suggested that a seasonal closure of spawning areas should be established.

Response: NMFS believes that the approved measures will result in approximately equal percent reductions of the harvests in the recreational and commercial sectors and, thus, the approved measures are fair and equitable. NMFS agrees that effort shifting in the commercial fishery may reduce the effectiveness of the 1-month closure of the commercial fishery; however, NMFS believes that the closure will provide some reductions in fishing mortality of gag, black grouper, and red grouper and will provide some limited protection to spawning aggregations of these species. Additional measures to reduce fishing mortality and protect spawning aggregations may be required in the future. NMFS also recognizes that limited notification of fishery closures places a hardship on the participants in the commercial fishery. Because this final rule does not become effective until after March 15, 2000, the 1-month closure of the commercial fishery will not occur until 2001.

Comment 6: Four Council members stated in their minority report that the regulatory amendment does not adequately consider the economic impact on fishing communities.

Response: For analyzing economic impacts, information is available at the county level and is not available disaggregated to show fishing communities. However, all affected entities are included in the RIR's aggregate economic analysis. Therefore, because fishing communities would be affected, the economic impact on them is included in the aggregate analysis. The Council and NMFS prepared a Regulatory Impact Review (RIR) and a Final Regulatory Flexibility Analysis (FRFA) that assess the socioeconomic effects of the preferred measures and alternatives considered by the Council and NMFS. The costs and benefits of the rule are assessed in the RIR and the economic impacts on small entities are assessed in the RIR/FRFA. The Council considered the economic implications of each alternative for achieving the management objective of reducing and preventing overfishing. The FRFA identifies the alternatives with less adverse economic impacts on small entities and sets forth the reasons why such alternatives were rejected. NMFS believes that the approved measures are based on the best available scientific information and will achieve the management objective in a fair and equitable manner, while minimizing the adverse economic impacts to the extent practicable.

Comment 7: Four Council members stated in their minority report that the regulatory amendment fails to address bycatch in the recreational fishery as required by the Magnuson-Stevens Act. One environmental group opposed the size limit increase based on its belief that bycatch would be increased.

Response: NMFS believes that the approved increase in the minimum size limit will reduce fishing mortality on small, immature grouper in the shallow-water grouper fishery and that this reduction in fishing mortality outweighs any increase in the resulting regulatory discards. National standard 9 requires that bycatch and bycatch mortality be minimized to the extent practicable. NMFS believes that bycatch in the recreational gag/black grouper fishery has been reduced to the extent practicable. Most bycatch in the recreational grouper fishery results from regulatory discards, which are an inevitable result of measures such as bag limits, size limits, and closed seasons. The elimination of these measures, with the intent of reducing bycatch, would increase overall fishing mortality and increase the rate of exploitation of immature grouper. Thus, the elimination of these measures to reduce bycatch would contribute to overfishing and is not practicable.

Comment 8: A total of 284 individuals commented that longlines were responsible for most of the problems in the shallow-water grouper fishery and suggested that longlines either be eliminated from the fishery or restricted to depths beyond 40-50 fathoms (73.2-91.4 m). One individual suggested that spear fishing for grouper be eliminated. Another individual suggested that fish traps be eliminated.

Response: The Council did not propose gear restrictions in the grouper fishery in this regulatory amendment. The Council is expected to consider additional gear restrictions in its FMP amendment for the grouper fishery currently under development.

Comment 9: Two individuals and five environmental groups responded to concerns raised by the NMFS Southeast Fisheries Science Center regarding the closed areas (see the proposed rule preamble). Comments received stated that (1) baseline data exist with which to compare changes in the closed area after 4 years; (2) the 4-year duration of the closure is too short but can and should be extended by the Council and NMFS; (3) scientists can provide criteria with which to judge the “success” or “failure” of the closure after the closure is approved; and (4) the results of studies within the closed areas will provide useful information to management agencies.

Response: NMFS has approved the closure of the two areas and will work with the Council to develop an appropriate experimental design and review existing baseline data.

Changes From the Proposed Rule

For the reasons discussed under the Response to Comment 3, NMFS has disapproved the measure that would have phased in additional increases in the recreational minimum size limit for gag and black grouper from 22 inches (55.9 cm) to 24 inches (61 cm). Those additional phased-in increases have been removed from § 622.37(d)(2)(iii)(B) of this final rule.

In § 622.45(c)(4), the wording of the seasonal restriction on sale or purchase of gag, black grouper, or red grouper harvested by a vessel with a Federal commercial permit for Gulf reef fish has been revised to clarify that the restriction applies throughout the Gulf rather than only in the Gulf EEZ. This is consistent with the wording of the corresponding seasonal closure of the commercial fishery for gag, black grouper, and red grouper.

Classification

This final rule has been determined to be not significant for purposes of E.O. 12866.

The regulatory amendment implemented by this final rule was prepared by the Council and submitted to NMFS for review, approval, and implementation under authority of the Magnuson-Stevens Act. The Council prepared an initial regulatory flexibility analysis (IRFA) for the four measures proposed in the regulatory amendment. NMFS prepared an FRFA for the final rule implementing the regulatory amendment. The FRFA was based on the IRFA, public comments, and subsequent analysis by NMFS. A summary of the FRFA follows:

The final rule implements four management actions: (1) An increase in the minimum size limits for gag and black grouper from 20 to 24 inches (50.8 cm to 61.0 cm) for commercial fishermen; (2) an increase in the minimum size limits for gag and black grouper from 20 inches to 22 inches (from 50.8 cm to 55.9 cm) for recreational fishermen; (3) a 1-month seasonal closure of the commercial fishery for gag, black and red grouper; and (4) a year-round prohibition of recreational and commercial fishing in two specific areas where gag spawning aggregations are known to occur. The Council also proposed that the recreational minimum size limit for gag and black grouper be increased from 22 inches to 24 inches (from 55.9 cm to 61.0 cm) over the 2-year period following implementation of this final rule; however, NMFS disapproved that provision. The approved measures will result in a significant economic impact on a substantial number of small business entities.

NMFS received over 600 comments on the proposed action. The comments pertaining to economic impacts of the actions are summarized as follows. Some comments stated that the proposal to close two areas to all fishing is too restrictive, while other comments gave strong support to the two closed areas. NMFS responds that the closure to all fishing under the Council's jurisdiction is a logical extension of the Council's earlier proposal to close areas to reef fish fishing and is based on public comment. However, this final rule closes the areas to fishing only for species under the Council's management.

Some comments stated that the size limit proposal unfairly limits the recreational catch while several individuals favored bag limit reductions instead. There were 227 comments in favor of the proposed recreational size limit. 279 comments favored the commercial size limit, and 3 were opposed. NMFS believes that size limits are an appropriate method of protecting immature fish but is concerned that the proposed increases in the recreational size limit to 24 inches (61.0 cm) could unfairly reduce the recreational harvest. NMFS, therefore, disapproved the increase in the recreational size limit beyond 22 inches (55.9 cm).

A total of 273 individuals questioned the effectiveness of a 1-month closure, with some noting that the closure should be extended to encompass the entire spawning season (3-4 months). NMFS agrees that a 1-month closure would be less effective than a longer closure, but notes that the closure will result in a reduction in fishing mortality and is, therefore, an appropriate step at this time, notwithstanding the possible need for future reductions in fishing mortality.

Some comments stated that the regulatory amendment does not adequately consider the economic impact on fishing communities. NMFS notes that an RIR, IRFA, and FRFA were prepared that assess the economic impacts of the Council's proposed measures and the alternatives it considered.

In summary, there were no changes to the proposed rule that were based solely on the public comments. However, NMFS disapproved the Council's proposal for a subsequent increase in the recreational size limit for gag and black grouper from 22 inches to 24 inches (55.9 cm to 61.0 cm) because this size increase for the recreational sector could cause disproportionately large harvest reductions compared to the commercial sector's harvest reductions, and would, thus, be in conflict with national standard 4. Numerous public comments were in support of this decision; they alleged that the further minimum-size increase for the recreational fishery was discriminatory because of the arguably unfair and inequitable potential effects on recreational harvests.

The Council determined that 242 commercial vessels historically fishing in the Gulf of Mexico EEZ would be negatively affected by the seasonal and year-round area closures. A relatively small proportion of the for-hire fleet is also expected to be impacted adversely by the two year-round area closures. The minimum size limits will affect 757 commercial vessels and an unknown number of for-hire vessels. All of these units are classified as small business entities under the RFA. Most of the commercial vessels use handline gear, have an average length of 38 ft (11.6 m), and generate average annual gross revenues of about $50,000. The for-hire businesses tend to use traditional charter fishing boats with offshore capability. No additional reporting, recordkeeping, or other compliance requirements by small entities are contained in the final rule.

Significant alternatives to the proposed actions were identified. The Council rejected four alternatives to change the size limits. The status quo of a 20-inch (50.8-cm) minimum size limit was rejected because increasing the size limits will help achieve the objective of preventing overfishing. The impacts of some of the other rejected alternatives were greater than for the proposed limits, and the proposed alternative would help meet the regulatory amendment objectives while minimizing the adverse economic impacts. NMFS' decision to disapprove the phased-in increase to a 24-inch (61.0-cm) recreational minimum size limit will tend to minimize adverse impacts on some for-hire small businesses.

There were three alternatives to the proposal to implement a 1-month seasonal commercial closure for gag, black and red grouper. The status quo was rejected because action was needed in order to attain the objectives of the regulatory amendment. The other two alternatives were rejected because they would have resulted in greater adverse impacts on fishermen.

The remaining action would prohibit fishing for 4 years in two specific areas. The Council considered and rejected four alternatives to the closed areas, including the status quo. The status quo was rejected because the area closures will provide essential protection for a portion of the gag population. Based on the sizes of the closed areas considered, impacts from the other alternatives would have lesser or greater impacts. The Council's recommendation falls in the middle and represents an attempt to achieve the objective of protecting gag stocks while minimizing negative economic impacts. The 4-year sunset provision for the closed areas also represents an attempt to minimize the negative economic impacts.

This rule is necessary because the gag stock is approaching an overfished condition, and the Magnuson-Stevens Act requires the Council to take action to prevent overfishing.

A copy of the FRFA is available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 622

• Fisheries
• Fishing
• Puerto Rico
• Reporting and recordkeeping requirements
• Virgin Islands

Dated: May 12, 2000.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries, 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

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

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

2. In § 622.34, add paragraphs (k) and (o) to read as follows:

§ 622.34

Gulf EEZ seasonal and/or area closures.

* * * * *

(k) Closure of the Madison and Swanson sites and Steamboat Lumps. No person may fish within the Madison and Swanson sites or Steamboat Lumps for any species of fish except highly migratory species. Highly migratory species means tuna species, marlin (Tetrapturus spp. and Makaira spp.), oceanic sharks, sailfishes (Istiophorus spp.), and swordfish (Xiphias gladius). This prohibition is effective through June 16, 2004. For the purpose of this paragraph (k), fish means finfish, mollusks, crustaceans, and all other forms of marine animal and plant life other than marine mammals and birds. The Madison and Swanson sites are bounded by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	29°17′	85°50′
B	29°17′	85°38′
C	29°06′	85°38′
D	29°06′	85°50′
A	29°17′	85°50′

Steamboat Lumps is bounded by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	28°14′	84°48′
B	28°14′	84°37′
C	28°03′	84°37′
D	28°03′	84°48′
A	28°14′	84°48′

* * * * *

(o) Seasonal closure of the commercial fishery for gag, red grouper, and black grouper. From February 15 to March 15, each year, no person aboard a vessel for which a valid Federal commercial permit for Gulf reef fish has been issued may possess gag, red grouper, or black grouper in the Gulf, regardless of where harvested. However, a person aboard a vessel for which the permit indicates both charter vessel/headboat for Gulf reef fish and commercial Gulf reef fish may continue to retain gag, red grouper, and black grouper under the bag and possession limit specified in § 622.39(b), provided the vessel is operating as a charter vessel or headboat. From February 15 until March 15, each year, the sale or purchase of gag, red grouper, or black grouper is prohibited as specified in § 622.45(c)(4).

3. In § 622.37, paragraph (d)(2)(ii) is revised and paragraph (d)(2)(iii) is added to read as follows:

§ 622.37

Size limits.

* * * * *

(d) * * *

(2) * * *

(ii) Red grouper and yellowfin grouper—20 inches (50.8 cm), TL.

(iii) Black grouper and gag—(A) For a person not subject to the bag limit specified in § 622.39(b)(1)(ii)—24 inches (61.0 cm), TL.

(B) For a person subject to the bag limit specified in § 622.39(b)(1)(ii)—22 inches (55.9 cm), TL.

* * * * *

4. In § 622.45, paragraph (c)(4) is added to read as ollows:

§ 622.45

Restrictions on sale/purchase.

* * * * *

(c) * * *

(4) From February 15 until March 15, each year, no person may sell or purchase a gag, black grouper, or red grouper harvested from the Gulf by a vessel with a valid Federal commercial permit for Gulf reef fish. This prohibition on sale/purchase does not apply to gag, black grouper, or red grouper that were harvested, landed ashore, and sold prior to February 15 and were held in cold storage by a dealer or processor.

* * * * *