E8-16252. Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery off the Southern Atlantic States; Amendment 14

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS issues this proposed rule to implement the applicable provisions of Amendment 14 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP), as prepared and submitted by the South Atlantic Fishery Management Council (Council). Amendment 14 proposes, and this rule would implement, establishment of eight marine protected areas (MPAs) in which fishing for or possession of South Atlantic snapper-grouper would be prohibited. The prohibition on possession would not apply to a person aboard a vessel that was in transit with fishing gear appropriately stowed. Amendment 14 also proposes to prohibit the use of shark bottom longlines within the MPAs, however, NMFS is proposing to implement the prohibition of shark bottom longlines through separate rulemaking. The intended effects of this proposed rule are to protect a portion of the population and habitat of long-lived, slow growing, deepwater snapper-grouper from fishing pressure to achieve a more natural sex ratio, age, and size structure within the proposed MPAs, while minimizing adverse social and economic effects.

DATES:

Written comments on this proposed rule must be received no later than 5 p.m., eastern time, on August 15, 2008.

ADDRESSES:

You may submit comments, identified by “0648-AU28”, by any of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal http://www.regulations.gov.
• Fax: [phone]; Attention: Kate Michie.
• Mail: Kate Michie, Southeast Regional Office, NMFS, 263 13^th Avenue South, St. Petersburg, FL 33701.

Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

Copies of Amendment 14 may be obtained from the South Atlantic Fishery Management Council, 4055 Faber Place, Suite 201, North Charleston, SC 29405; phone: [phone] or 866-SAFMC-10 (toll free); fax: [phone]; e-mail: [e-mail]. Amendment 14 includes a Final Environmental Impact Statement (FEIS), a Biological Assessment, an Initial Regulatory Flexibility Analysis (IRFA), a Regulatory Impact Review, and a Social Impact Assessment/Fishery Impact Statement.

FOR FURTHER INFORMATION CONTACT:

Kate Michie, telephone: [phone], fax: [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

The snapper-grouper fishery off the southern Atlantic states 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. NMFS issues this proposed rule to implement the applicable provisions of Amendment 14 to the FMP. The Atlantic shark fishery is managed under the Consolidated Highly Migratory Species Fishery Management Plan (HMS FMP). The HMS FMP is implemented under the authority of the Magnuson-Stevens Act by regulations at 50 CFR part 635.

Background

Many snapper-grouper species are vulnerable to overfishing because they are long-lived (e.g., snowy grouper, golden tilefish, red snapper, gag, scamp, red grouper, and red porgy); they are protogynous, i.e., they may change sex from females to males as they grow older/larger (e.g., snowy grouper, speckled hind, Warsaw grouper, yellowedge grouper, gag, scamp, red porgy, and black sea bass); they form spawning aggregations (e.g., snowy grouper, gag, scamp, and red snapper); and they suffer high release mortality when taken from deep water. Deepwater snapper-grouper species (speckled hind, snowy grouper, Warsaw grouper, yellowedge grouper, misty grouper, golden tilefish, and blueline tilefish) are most vulnerable to overfishing because they live longer than 50 years, do not survive the trauma of capture, and are protogynous (groupers) or exhibit sexual dimorphism, i.e., males and females grow at different rates (tilefishes).

Stock assessments indicate that black sea bass, red porgy, and snowy grouper are overfished, i.e., spawning stock biomass is not sufficient to reproduce and support continued productivity. In addition, black sea bass, golden tilefish, snowy grouper, and vermilion snapper are experiencing overfishing, i.e., the current rate of fishing mortality jeopardizes the capacity of the fishery to produce its maximum sustainable yield on a continuing basis. Reductions in catch and protection of habitat are needed.

Proposed Measures

This rule would establish eight MPAs in which a portion of the population and habitat of long-lived, slow growing, deepwater snapper-grouper species would be protected from directed fishing pressure. Fishing for or possession of South Atlantic snapper-grouper would be prohibited in the MPAs. However, the prohibition on possession would not apply to a person aboard a vessel that was in transit with fishing gear appropriately stowed, as specified in § 622.35(i)(2) of this proposed rule. MPAs are considered to be the most effective fishery management tool that would allow deepwater snapper-grouper to reach a more natural sex ratio, age, and size structure, protect spawning locations, and provide a refuge for early developmental stages of fish species.

Using a collaborative process, the Council selected specific sites for MPAs on the basis of maximizing the biological benefits and enhancing enforceability and monitoring while minimizing the adverse social and economic effects. Sizes of the MPAs would range from approximately 5 by 10 nautical miles (nm) to approximately 22 by 23 nm. One would be off North Carolina, three off South Carolina, one off Georgia, and three off the east coast of Florida. An artificial reef may be established at one of the South Carolina sites. The two most southern MPAs would be approximately 9 and 13 nm offshore, respectively, and the others at least 38 nm offshore. The eight proposed MPAs and their relative locations are shown in Figure 1.

The prohibition of use of shark bottom longlines in the MPAs is considered necessary for habitat protection and to prevent the mortality of incidentally caught snapper-grouper. The Council voted to include this prohibition in Amendment 14 because of concerns regarding the enforcement of fishing activities by vessels that hold permits in both the snapper-grouper and shark bottom longline fisheries, both of which deploy similar gear. However, because the Atlantic shark fishery is managed under the HMS FMP, NMFS requested the HMS Division promulgate the prohibition of use of shark bottom longlines within the proposed MPAs. The HMS Division published a final rule on June 24, 2008 (72 FR 35778), prohibiting shark bottom longlining in the proposed MPAs through Amendment 2 to the consolidated HMS FMP.

Availability of Amendment 14

Additional background and rationale for the measures discussed above are contained in Amendment 14. The availability of Amendment 14 was announced in the Federal Register on June 6, 2008, (73 FR 32281). Written comments on Amendment 14 will be accepted through August 5, 2008. All comments received on Amendment 14 or on this proposed rule during their respective comment periods will be addressed in the preamble to the final rule.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 14, the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

The Council prepared an FEIS for Amendment 14; a notice of availability was published on June 13, 2008 (73 FR 33813).

NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, for this proposed rule. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the objectives of, and legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from the Council (see ADDRESSES). A summary of the IRFA follows.

This proposed rule would establish eight MPAs in the Federal waters of the South Atlantic and prohibit fishing for or possession of South Atlantic snapper-grouper within any of the MPAs. The purpose of this proposed rule is to assist in the recovery of overfished stocks and persistence of healthy fish stocks, fisheries, and habitats. The Magnuson-Stevens Act provides the statutory basis for the proposed rule.

No duplicative, overlapping, or conflicting Federal rules have been identified.

Two general classes of small business entities would be directly affected by the proposed rule, commercial fishing vessels and for-hire fishing vessels. The Small Business Administration defines a small entity in the commercial fishing sector as a firm that is independently owned and operated, is not dominant in its field of operation, and has average annual gross receipts not in excess of $4 million (2002 NAICS 11411). For a for-hire business, the appropriate revenue benchmark is $6.5 million (2002 NAICS 487210).

Average net incomes estimated from boats operating in the South Atlantic snapper-grouper fishery were sampled in a 1994 study that separated the fishery into northern and southern zones. The northern zone includes the area north of 28° N. latitude to the North Carolina/Virginia border. The southern zone includes the area south of 25° N. latitude to the border between the South Atlantic and Gulf of Mexico Fishery Management Councils. The estimated average net incomes, in 1994 (and 2006) dollars, were $83,224 ($113,212) for boats that primarily used bottom longlines in the northern zone, $23,075 ($31,389) for boats that primarily used black sea bass pots in the northern zone, $15,563 ($21,171) for boats that primarily used bottom longlines in the southern zone, $11,649 ($15,842) for boats that primarily used vertical lines in the southern zone, and $8,307 ($11,300) for boats that primarily used vertical lines in the northern zone. Overall, boats in the northern zone averaged $14,143 ($19,239) in net income based on average revenues of $48,702 ($66,250), while boats in the southern zone averaged $12,388 ($16,852) net income based on average revenues of $39,745 ($54,066). More recent data from the Southeast logbook program show the average annual ex-vessel revenue from landings of snapper-grouper species per vessel from 1999 to 2003 to range from $14,408 to $16,376 (2006 dollars).

Although some fleet activity may exist in this fishery, the extent of such has not been determined. Thus, all vessels are assumed to be unique business entities. Given historic income data and the gross revenue profile captured by the Southeast logbook program, it is determined that all vessels that would be affected by the proposed rule are small entities.

Charterboats are defined as boats for hire carrying six or fewer passengers that charge a fee to rent the entire boat. Headboats tend to be larger, generally can carry a maximum of around 60 passengers, and the fee is paid on an individual angler basis. This analysis, which estimates the range of the average gross revenues in 2006 dollars for this sector, is as follows: $61,714 to $83,820 for charterboats on the Atlantic coast of Florida; $72,768 to $88,778 for charterboats in North Carolina, $31,830 to $38,833 for charterboats in South Carolina; $68,629 to $83,486 for charterboats in Georgia; $170,276 to $362,482 for headboats in Florida; and $148,840 to $317,030 for headboats in the other South Atlantic states. Similar to the situation with the commercial harvest sector, some fleet activity may exist within the for-hire sector. The magnitude and identity of such is unknown, however, and all vessels are assumed to represent unique business entities. Given the gross revenue profiles provided, vessels in the for-hire recreational sector are determined to be small business entities.

There were 1,066 commercial snapper-grouper permitted vessels in the South Atlantic during 2004. A number of these permitted vessels were not active in the snapper-grouper fishery. It is not possible to estimate the total number of true latent permits (i.e., those permits which are not expected to be fished in any given year and may exist only for speculative purposes) since permits with no associated landings could become active in a subsequent year. The number of permitted vessels, however, is an upper bound on the universe of vessels in this fishery. The assumed lower bound of the universe of vessels is the number of active vessels in the latest year for which data are available. This lower bound estimate is 906 vessels, which is the number of vessels/permits with recorded landings of snapper-grouper species in the South Atlantic in 2003. The upper bound is the 1,066 commercial snapper-grouper permitted vessels in the South Atlantic during 2004. Thus, the range of vessels assumed to potentially operate in the commercial snapper-grouper fishery is 906 to 1,066. Currently, there is insufficient information to determine the number of commercial fishing vessels that fish for or possess any snapper-grouper species in the proposed MPAs.

In the for-hire sector, 1,594 snapper-grouper for-hire permits were issued to vessels in the South Atlantic states in 2004. The for-hire fishery operates as an open access fishery, and not all of the permitted snapper-grouper for-hire vessels are necessarily active in this fishery. Some vessel owners have been known to purchase open access permits as insurance for uncertainties in the fisheries in which they currently operate. Currently, there is insufficient information to assess the number of for-hire vessels that fish for or possess any snapper-grouper species in the proposed MPAs.

There is insufficient information to assess the numbers or percentages of commercial and for-hire vessels that fish for or possess snapper-grouper species in the proposed MPAs and would be directly affected by the proposed rule. Consequently, it cannot be determined if the proposed rule would affect a substantial number of small entities. A direct cost of the proposed rule would be the lost revenues and profits derived from fishing for or possessing snapper-grouper species in those areas. It is expected that any vessel that historically fished in these areas would mitigate some of these losses by relocating to other areas. There is insufficient information to quantify any potential losses of revenues and profits from the creation of the MPAs. However, the relatively small sizes of the MPAs suggest there would not be significant adverse economic impact.

Three alternatives, including the status quo, were considered for the first of the eight actions. Both the proposed action (Alternative 1) and Alternative 2 would establish an MPA at the area of the Snowy (Grouper) Wreck off the coast of North Carolina. The proposed MPA is 55 nm southeast of Southport, North Carolina, and Alternative 2 is located approximately 57 nm southeast of Southport. Each MPA is about 15 by 10 nm. Fishermen from Little River, Carolina Beach, and Southport ports would most likely be affected by either alternative. The proposed MPA and the MPA specified by Alternative 2 include an area ranging from 150 meters (m) to 300 m deep. The proposed MPA includes a shallow area ranging from 60 to 100 m, while the MPA specified by Alternative 2 includes a deeper area exceeding 300 m in depth. Alternative 2 could result in the displacement of fewer fishermen than the proposed action, but would not be expected to protect as many mid-shelf species as the proposed action. The status quo alternative (Alternative 3) would not create an MPA in the Snowy (Grouper) Wreck area off the coast of North Carolina, would not increase the protection of mid-shelf and deepwater snapper-grouper species, and would not, therefore, meet the Council's objective.

Four alternatives, including the status quo, were considered for the second action. The proposed action (Alternative 2) and two of the other alternatives (Alternatives 1 and 3) would establish an MPA off the northern South Carolina coast. The proposed MPA is located approximately 54 nm from Murrells Inlet, while Alternative 1 is located approximately 61 nm from Murrells Inlet, and the MPA specified by Alternative 3 is about 65 nm from Murrells Inlet. The proposed MPA and the MPAs specified by Alternatives 1 and 3 are 10 by 5 nm in size. Both the proposed MPA and the MPA specified by Alternative 1 run east to west, while the MPA specified by Alternative 3 runs parallel to shore. Waters in the proposed MPA area range from 50 to 180 m deep. The MPAs specified by Alternatives 1 and 3 share an area ranging in depth from 70 to 140 m, but the MPA specified by Alternative 1 includes more shallow waters, while the MPA specified by Alternative 3 includes a greater area of deep water. The proposed MPA is expected to protect more deepwater and mid-shelf snapper-grouper species than the MPAs specified by Alternatives 1 and 3. The status quo alternative (Alternative 4) would not create an MPA off the coast of northern South Carolina, would not increase the protection of mid-shelf and deepwater snapper-grouper species, and would not, therefore, meet the Council's objective.

Three alternatives, including the status quo, were considered for the third action. Both the proposed action (Alternative 1) and Alternative 2 would establish an MPA off the coast of central South Carolina. The proposed MPA is oriented perpendicular to the coast and is located about 45 nm southeast of Charleston Harbor. The MPA specified by Alternative 2 is oriented parallel to the shoreline and is located approximately 50 nm southeast of Charleston Harbor. Both MPAs are 10 by 5 nm in size. The proposed MPA is expected to protect more mid-shelf and rare deepwater snapper-grouper species than Alternative 2. The status quo alternative (Alternative 3) would not create an MPA off the coast of central South Carolina, would not increase the protection of mid-shelf and deepwater snapper-grouper species, and would not, therefore, meet the Council's objective.

Three alternatives, including the status quo, were considered for the fourth action. Both the proposed action (Alternative 1) and Alternative 2 would establish an MPA off the coast of Georgia. The proposed MPA is located approximately 69 nm southeast of the mouth of Wassaw Sound, while the MPA specified by Alternative 2 is located about 65 nm southeast of the mouth of Wassaw Sound. Both the proposed MPA and the MPA specified by Alternative 2 are 10 by 10 nm in size, and both share a common area with waters 90 to 210 m deep. However, the proposed MPA also includes waters ranging from 90 to 300 m deep and runs parallel to the shore, while the MPA specified by Alternative 2 includes an area with a wider depth range, from 65 to 380 m and does not run parallel to the coast. The proposed MPA is expected to be easier for industry to maneuver around and may result in greater protection of the mid-shelf habitat that serves as a nursery for deepwater species, notably tilefish, than the MPA specified by Alternative 2. The status quo alternative (Alternative 3) would not create an MPA off the coast of Georgia, would not increase the protection of tilefish, snowy grouper, and mid-shelf snapper-grouper species, and would not, therefore, meet the Council's objective.

Seven alternatives, including the status quo, were considered for the fifth action. The proposed action (Alternative 4) and five of the other alternatives would establish an MPA off the coast of north Florida. The proposed MPA is approximately 60 nm off the mouth of St. John's River near Jacksonville. The MPA specified by Alternative 1 is approximately 57 nm off the mouth of the St. John's River; the MPA specified by Alternative 2 is about 47 nm east of St. Augustine; the MPA specified by Alternative 3 is approximately 43 nm off New Smyrna Beach; the MPA specified by Alternative 5 is about 55 nm east of St. Augustine; and the MPA specified by Alternative 6 is approximately 45 nm off New Smyrna Beach. The proposed MPA and the MPAs specified by Alternatives 1, 2, and 5 are 10 by 10 nm in size, while the MPAs specified by Alternatives 3 and 6 are 22 by 23 nm in size. The proposed MPA shares an area with the MPA specified by Alternative 1 that ranges from 60 to 200 m in depth. The proposed MPA also includes deeper waters, ranging from 200 to 380 m in depth, while the MPA specified by Alternative 1 includes an area of shallower water, ranging from 50 to 80 m in depth. The MPAs specified by Alternatives 2 and 5 share an area with depths ranging from 90 to 150 m. The MPA specified by Alternative 5 also includes a deeper area that ranges from 150 to 390 m, while the MPA specified by Alternative 2 includes a shallower area of 55 to 80 m. Most of the area included by the MPAs specified by Alternatives 3 and 6 overlap in an area ranging from 200 to 690 m deep. The MPA specified by Alternative 3 also includes a deeper area that exceeds 700 m, while the MPA specified by Alternative 6 includes a shallower area of 80 to 150 m. Although the MPAs specified by Alternatives 1 and 2 would protect more mid-shelf snapper-grouper species than the proposed MPA, while the MPAs specified by Alternatives 3, 5 and 6 would protect more deepwater species, these alternatives would also be expected to result in greater adverse economic impacts than the proposed MPA. The status quo alternative (Alternative 7), would not create an MPA off the coast of north Florida, would not increase the protection of mid-shelf and deepwater snapper-grouper species, and would not, therefore, meet the Council's objective.

Two alternatives, including the status quo, were considered for the sixth action. The proposed action would establish an MPA in the area known as Sea Bass Rocks off the coast of Florida. The status quo alternative would not create an MPA in this area, would not increase the protection of deepwater snapper-grouper species in this area, and would not, therefore, meet the Council's objective.

Two alternatives, including the status quo, were considered for the seventh action. The proposed action would establish an MPA in the vicinity of the area known as East Hump and Unnamed Hump off the coast of the Florida Keys. The status quo alternative, would not create an MPA in this area, would not increase the protection of deepwater snapper-grouper and protected species in this area, and would not, therefore, meet the Council's objectives.

Two alternatives, including the status quo, were considered for the eighth action. The proposed action would establish an artificial reef MPA off the coast of South Carolina. The status quo alternative would not create this MPA, would not increase the opportunity to improve snapper-grouper populations in this area, and would not, therefore, meet the Council's objective.

List of Subjects in 50 CFR Part 622

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

Dated: July 10, 2008.

Samuel D. Rauch III,

Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 622 is proposed to be 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 § 622.2, the definition of “MPA” is added in alphabetical order to read as follows:

§ 622.2

Definitions and acronyms.

* * * * *

MPA means marine protected area.

* * * * *

3. In § 622.35, paragraph (i) is added to read as follows:

§ 622.35

Atlantic EEZ seasonal and/or area closures.

* * * * *

(i) MPAs. (1) No person may fish for a South Atlantic snapper-grouper in an MPA, and no person may possess a South Atlantic snapper-grouper in an MPA. However, the prohibition on possession does not apply to a person aboard a vessel that is in transit with fishing gear appropriately stowed as specified in paragraph (i)(2) of this section. In addition to these restrictions, see § 635.21(d)(1)(iii) of this chapter regarding restrictions applicable within these MPAs for any vessel issued a permit under part 635 of this chapter that has longline gear on board. MPAs consist of deepwater areas as follows:

(i) Snowy Grouper Wreck MPA is bounded by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	33°25′	77°04.75′
B	33°34.75′	76°51.3′
C	33°25.5′	76°46.5′
D	33°15.75′	77°00.0′
A	33°25′	77°04.75′

(ii) Northern South Carolina MPA is bounded on the north by 32°53.5′ N. lat.; on the south by 32°48.5′ N. lat.; on the east by 78°04.75′ W. long.; and on the west by 78°16.75′ W. long.

(iii) Edisto MPA is bounded on the north by 32°24′ N. lat.; on the south by 32°18.5′ N. lat.; on the east by 78°54.0′ W. long.; and on the west by 79°06.0′ W. long.

(iv) Charleston Deep Artificial Reef MPA is bounded by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	32°04′	79°12′
B	32°08.5′	79°07.5′
C	32°06′	79°05′
D	32°01.5′	79°09.3′
A	32°04′	79°12′

(v) Georgia MPA is bounded by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	31°43′	79°31′
B	31°43′	79°21′
C	31°34′	79°29′
D	31°34′	79°39′
A	31°43′	79°31′

(vi) North Florida MPA is bounded on the north by 30°29′ N. lat.; on the south by 30°19′ N. lat.; on the east by 80°02′ W. long.; and on the west by 80°14′ W. long.

(vii) St. Lucie Hump MPA is bounded on the north by 27°08′ N. lat.; on the south by 27°04′ N. lat.; on the east by 79°58′ W. long.; and on the west by 80°00′ W. long.

(viii) East Hump MPA is bounded by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	24°36.5′	80°45.5′
B	24°32′	80°36′
C	24°27.5′	80°38.5′
D	24°32.5′	80°48′
A	24°36.5′	80°45.5′

(2) For the purpose of paragraph (i)(1) of this section, transit means direct, non-stop progression through the MPA. Fishing gear appropriately stowed means—

(i) A longline may be left on the drum if all gangions and hooks are disconnected and stowed below deck. Hooks cannot be baited. All buoys must be disconnected from the gear; however, buoys may remain on deck.

(ii) A trawl or try net may remain on deck, but trawl doors must be disconnected from such net and must be secured.

(iii) A gillnet, stab net, or trammel net must be left on the drum. Any additional such nets not attached to the drum must be stowed below deck.

(iv) Terminal gear (i.e., hook, leader, sinker, flasher, or bait) used with an automatic reel, bandit gear, buoy gear, handline, or rod and reel must be disconnected and stowed separately from such fishing gear. A rod and reel must be removed from the rod holder and stowed securely on or below deck.

(v) A crustacean trap, golden crab trap, or sea bass pot cannot be baited. All buoys must be disconnected from the gear; however, buoys may remain on deck.

4. Add Figure 1 to Part 622 to read as follows: