05-17945. Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Comprehensive Amendment to the Fishery Management Plans of the U.S. Caribbean

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 a comprehensive amendment prepared by the Caribbean Fishery Management Council (Council) to amend its Reef Fish, Spiny Lobster, Queen Conch, and Coral Fishery Management Plans (FMPs). The comprehensive amendment is designed to ensure the FMPs are fully compliant with the provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This proposed rule would redefine the fishery management units for the FMPs; establish seasonal closures; impose gear restrictions and requirements; revise requirements for marking pots and traps; and prohibit the filleting of fish at sea. In addition, the comprehensive amendment would establish biological reference points and stock status criteria; establish rebuilding schedules and strategies to end overfishing and rebuild overfished stocks; provide for standardized collection of bycatch data; minimize bycatch and bycatch mortality to the extent practicable; designate essential fish habitat (EFH) and EFH habitat areas of particular concern (HAPCs); and minimize adverse impacts on such habitat to the extent practicable. The intended effect of this proposed rule is to achieve optimum yield in the fisheries and provide social and economic benefits associated with maintaining healthy stocks.

DATES:

Comments must be received no later than 5 p.m., eastern time, on September 28, 2005.

ADDRESSES:

You may submit comments on the proposed rule by any of the following methods:

• E-mail: [e-mail]. Include in the subject line of the e-mail comment the following document identifier 0648-AP51.
• Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Steve Branstetter, NMFS, Southeast Regional Office, 263 13^th Avenue South, St. Petersburg, FL 33701.
• Fax: [phone], Attention: Steve Branstetter.

Copies of documents supporting this action may be obtained by contacting the NMFS Southeast Regional Office at the above address.

FOR FURTHER INFORMATION CONTACT:

Steve Branstetter, 727-824-5305; fax [phone]; e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

The fisheries for spiny lobster, queen conch, reef fish, and corals and reef-associated invertebrates in the exclusive economic zone (EEZ) off Puerto Rico and of the U.S. Virgin Islands are managed under the respective fishery management plans prepared by the Council. These fishery management plans are implemented under the authority of the Magnuson-Stevens Act by regulations at 50 CFR part 622. This proposed rule would implement Amendment 2 to the FMP for the Spiny Lobster Fishery, Amendment 1 to the FMP for Queen Conch Resources, Amendment 3 to the FMP for the Reef Fish Fishery, and Amendment 2 to the FMP for the Corals and Reef Associated Plants and Invertebrates of Puerto Rico and the U.S. Virgin Islands, known collectively as the Comprehensive Amendment to the FMPs of the Caribbean.

Background

A notice of availability for the comprehensive amendment was published in the Federal Register on June 16, 2005 (70 FR 35053). This proposed rule and the comprehensive amendment are intended to address various requirements set forth in the Magnuson-Stevens Act: (1) Assess and specify the present and probable future condition of, and the maximum sustainable yield and optimum yield from, fisheries; (2) specify objective and measurable criteria for identifying when a fishery is overfished; (3) end overfishing and rebuild overfished stocks, and prevent overfishing in fisheries that are identified as approaching an overfished condition; (4) establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery and implement conservation and management measures that minimize bycatch and bycatch mortality to the extent practicable; and (5) identify, describe, and designate EFH and EFH-HAPCs for managed stocks, minimize to the extent practicable adverse effects on such habitat caused by fishing, and identify other actions to encourage the conservation and enhancement of such habitat.

Provisions of This Proposed Rule

Revision of Fishery Management Units (FMUs)

This proposed rule would redefine the FMUs in all the Council FMPs. FMUs define the specific species that are to be the target of conservation and management.

The proposed rule would remove from the respective FMUs, species found predominantly in the waters of Puerto Rico or the U.S. Virgin Islands (rather than in Federal waters). In addition, those species for which data are inadequate to establish a need for conservation and management, biological reference points, or stock status determination criteria would remain in the FMUs for data collection purposes but would not be subject to Federal regulation at this time. When sufficient data are available and, if a need for management is determined, appropriate regulations would be implemented through subsequent rulemaking.

Under the proposed rule, Caribbean helmet, flame helmet, Caribbean vase, and whelk (West Indian top shell) would be removed from the Queen Conch FMP. All other species in the Caribbean conch FMU, except queen conch, and all aquarium trade species in the Reef Fish and Coral Reef FMPs, would be retained in the respective FMUs for data collection purposes only. Tables 1 and 2 of Appendix A to 50 CFR Part 622 (Caribbean Coral Reef Resources and Caribbean Reef Fish, respectively) would be revised accordingly; Table 5 of Appendix A to 50 CFR Part 622 (Caribbean Conch Resources) would be added; and the definition of “Caribbean conch resource” would be removed and replaced by a definition of “queen conch.”

The proposed change would provide for collection of data on aquarium trade species and other species retained in the respective FMUs for data collection purposes only, but would remove these species from Federal regulations at this time. Consequently, existing regulations at 50 CFR 622.41(b) defining a marine aquarium fish as “a Caribbean reef fish that is smaller than 5.5 inches (14.0 cm) TL” and restricting the harvest of a marine aquarium fish to hand-held dip nets or hand-held slurp guns would be eliminated. The regulation at 50 CFR 622.32(b)(1)(ii) prohibiting the harvest and possession of butterflyfish and seahorses from Federal waters of the U.S. Caribbean also would be eliminated. There would be no specification of maximum sustainable yield (MSY), optimum yield (OY), or stock status determination criteria for species retained for data collection purposes only.

Seasonal Closures

This proposed rule would establish several seasonal closures to reduce fishing mortality, provide protection to key species during peak spawning seasons, protect EFH, and help to rebuild overfished fish stocks or keep healthy stocks from becoming overfished. For snappers, fishing for or possessing black, blackfin, vermilion, or silk snapper, in or from the Caribbean EEZ would be prohibited from October 1 through December 31 each year. From April 1 through June 30 each year, fishing for or possessing lane or mutton snapper in or from the Caribbean EEZ would also be prohibited. For grouper, fishing for or possessing red, black, tiger, yellowfin, or yellowedge grouper, in or from the Caribbean EEZ, would be prohibited from February 1 through April 30 each year. In addition, fishing for or possessing red hind in or from the Caribbean EEZ would be would be prohibited off the west coast of Puerto Rico west of 67°10′ W. longitude from December 1 through February each year. Further, to help rebuild overfished grouper species and to protect EFH, fishing for or possessing any species of fish, except highly migratory species, in or from the Grammanik Bank closed area would be prohibited from February 1 to April 30 each year. Highly migratory species means bluefin, bigeye, yellowfin, albacore, and skipjack tunas; swordfish; sharks (listed in Appendix A to 50 CFR Part 635); white marlin, blue marlin, sailfish, and longbill spearfish. The Grammanik Bank closed area is bound by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	18°11.898′	64°56.328′
B	18°11.645′	64°56.225′
C	18°11.058′	64°57.810′
D	18°11.311′	64°57.913′
A	18°11.898′	64°56.328′

To reduce fishing mortality and help rebuild the overfished stock of Caribbean queen conch, the proposed rule would prohibit fishing for or possessing on board a fishing vessel a Caribbean queen conch in or from the Caribbean EEZ, except during October through June in the area east of 64°34′ W. longitude which includes Lang Bank east of St. Croix, U.S. Virgin Islands.

Restrictions on Gillnets and Trammel Nets

To help achieve necessary reductions in fishing mortality and to reduce bycatch, the use of gillnets or trammel nets to fish for Caribbean reef fish or Caribbean spiny lobster would be prohibited in the Caribbean EEZ. Possession of a gillnet or trammel net and any Caribbean reef fish or Caribbean spiny lobster in or from the Caribbean EEZ would be prima facie evidence of a violation of this provision. To further minimize bycatch and bycatch mortality, the proposed rule would require any gillnet or trammel net used in the Caribbean EEZ to fish for any other species, including flying fishes or needlefishes, to be tended at all times.

Other Gear Restrictions to Minimize Adverse Effects on EFH

This proposed rule would prohibit all fishing with pots, traps, gillnets, trammel nets, or bottom longlines year-round in the proposed Grammanik Bank closed area and in the existing seasonally closed mutton snapper spawning aggregation area off the southwest coast of St. Croix, U.S. Virgin Islands and the red hind spawning aggregation areas east of St. Croix and west of Puerto Rico (Bajo de Cico, Tourmaline Bank, and Abrir La Sierra Bank). See 50 CFR 622.33(a)(1) and (2) for the coordinates of these existing seasonally closed areas. The year-round prohibition on use of these gear types within these discrete spawning aggregation sites would protect EFH and contribute to needed reductions in fishing mortality.

To further minimize the adverse impacts of fishing on EFH in the EEZ, the proposed rule would establish several additional regulatory requirements. For all vessels that fish for or possess Caribbean spiny lobster or Caribbean reef fish in or from the EEZ, the proposed rule would require at least one buoy that floats at the surface be attached to all traps or pots fished individually, and at least one such buoy be attached at each end of trap lines linking traps or pots. This is intended to more readily identify the location of traps and, thus, preclude the practice of using a grapnel hook to locate and retrieve unmarked traps which results in substantial damage to EFH. It should also minimize the loss of traps and subsequent adverse effects of ghost fishing.

To enhance compatibility with regulations in the waters of Puerto Rico and the U.S. Virgin Islands and, thereby, enhance enforceability and compliance, the proposed rule would amend current requirements for trap construction to require one degradable escape panel, which could be the trap door if it is attached with the required degradable fasteners and is located on the side of the trap.

For all commercial and recreational vessels that fish for or possess Caribbean reef species in or from the EEZ, the proposed rule would require an anchor retrieval system that ensures the anchor is recovered by its crown in order to prevent the anchor from dragging along the bottom during recovery and damaging EFH. For a grapnel hook, this could include an incorporated anchor rode reversal bar that runs parallel along the shank, which allows the rode to reverse and slip back toward the crown. For a fluke or plow-type anchor (e.g., Danforth, Delta, Fortress, etc.), a trip line consisting of a line from the crown of the anchor to a surface buoy would be required.

Prohibition on Filleting Fish

Nassau and goliath grouper cannot be harvested or possessed in or from the Caribbean EEZ. However, if fish are filleted, the ability to properly identify these species and enforce the prohibition on harvest and possession is compromised. To enhance enforceability of this provision and to help rebuild the overfished stocks of Nassau and goliath grouper, filleting of fish, except for highly migratory species, in or from the Caribbean EEZ would be prohibited. Fish subject to this prohibition would have to be landed with heads and fins intact. The proposed rule would provide minor exceptions to this requirement regarding “bait” and “consumption at sea” as specified in § 622.38(d) of this proposed rule.

Additional Provisions Contained in the Comprehensive Amendment

Establishment or Refinement of Biological Reference Points and Stock Status Criteria

The comprehensive amendment would establish or revise estimates for MSY, OY, minimum stock size threshold (MSST), and a maximum fishing mortality threshold (MFMT) for various fish stocks.

MSY and OY targets would vary according to FMUs. MSY and OY would be set to zero for all species in the Caribbean coral reef resource FMU, excluding those species retained for data collection purposes. For all other species, MSY would be established from recent average catch (C) in the commercial and recreational fisheries and from estimates of the current biomass (BCURR/BMSY) and fishing mortality (FCURR/FMSY) ratios. MSY would be equal to C/[(FCURR/FMSY) x (BCURR/BMSY)]. OY would then be established as the average yield associated with a fishing mortality (F) equal to the fishing mortality to achieve OY (FOY) where FOY = 0.75FMSY.

For each FMU sub-unit for which biomass and fishing mortality ratios have not been estimated through a stock assessment or other scientific exercise (i.e., stock status is unknown), the following estimates will be used: (1) For species that are not believed to be at risk based on the best available information, the FCURR/FMSY proxy is estimated as 0.75 and the BCURR/BMSY proxy is estimated as 1.25; (2) For species for which no positive or negative determination can be made on the status of their condition, the default fishing mortality ratio and biomass ratio proxies would be estimated as 1.00; and (3) For species that are believed to be at risk based on the best available information, the fishing mortality ratio would be estimated at 1.50 and the biomass ratio would be estimated as 0.75.

MSST would be established as BMSY(1-c); where c equals the natural mortality rate (M) or 0.50, whichever is smaller. This alternative is preferred for Caribbean spiny lobster, queen conch, and all species in the reef fish and coral reef resource FMUs, excluding those species retained for data collection purposes.

MFMT would be based on an MSY control rule. For all species in the Coral FMP, MFMT would be zero, excluding those species retained for data collection purposes. For Caribbean queen conch, spiny lobster, and reef fish, excluding those species retained for data collection purposes, MFMT would be based on an allowable biological catch (ABC), which would be defined as ABC = FMSY(B). For those species where FMSY estimates are not available, natural mortality (M) would be used as a proxy for FMSY. An OY control rule would define target catch limits such that they equal FOY(B).

Establishment of Rebuilding Schedules

Based on the establishment or revision of the biological reference points and stock status criteria described above, several species would be considered overfished. Therefore, in accordance with the Magnuson-Stevens Act, the Council is establishing the following stock rebuilding schedules.

Nassau Grouper would be rebuilt to BMSY in 25 years, using the formula TMIN (10 years) + one generation time (15 years) = 25 years.

Goliath Grouper would be rebuilt to BMSY in 30 years, using the formula TMIN (10 years) + one generation time (20 years) = 30 years.

Queen Conch would be rebuilt to BMSY in 15 years, using the formula TMIN (10 years) + one generation time (5 years) = 15 years.

Grouper Unit 4 (including red, black, tiger, yellowfin, yellowedge and misty grouper) would be rebuilt to BMSY in 10 years.

Standardized Bycatch Reporting

The comprehensive amendment would establish a standardized bycatch reporting methodology throughout the Council's area of jurisdiction by using existing databases in addition to revising certain other existing databases. Use of the Marine Recreational Fishery Statistics Survey database would provide additional bycatch information on the recreational and subsistence sectors. The Council and NMFS would also consult with Puerto Rico and the U.S. Virgin Islands in an effort to modify the state trip ticket systems currently in place in the U.S. Caribbean to require standardized collection of bycatch data.

Designation of EFH and HAPCs

The comprehensive amendment would describe and identify EFH according to functional relationships between life history stages of federally managed species and Caribbean marine and estuarine habitats. For spiny lobster, queen conch and reef fish, EFH in the U.S. Caribbean would consist of all waters from mean high water to the outer boundary of the EEZ, which are used by eggs and larvae, and seagrass, benthic algae, mangrove, coral, and live/hard bottom substrates from mean high water to 100 fathoms (183 m) depth, which are used by other life stages. EFH for the coral fishery in the U.S. Caribbean consists of all waters from mean low water to the outer boundary of the EEZ, which is used by larvae, and all coral and hard bottom substrates from mean low water to 100 fathoms (83 m) depth, which are used by other life stages.

The comprehensive amendment would designate HAPCs in the Reef Fish FMP based on confirmed spawning locations and on areas or sites identified as having particular ecological importance to managed species. (See Section 6.7.1.3 of the comprehensive amendment for more detailed description of the respective HAPCs). Based on the confirmed occurrence of spawning in these particular areas, HAPCs in the Reef Fish FMP would be designated off of Puerto Rico at Tourmaline Bank/Buoy 8, Abrir La Sierra Bank/Buoy 6, Bajo de Cico, and Vieques, El Seco. Off St. Croix, HAPCs for reef fish would include the mutton snapper spawning aggregation area (50 CFR 622.33(a)(1)) and Lang Bank, (50 CFR 622.33(a)(2)(i)). Off St. Thomas, HAPCs would be designated as Hind Bank Marine Conservation District (50 CFR 622.33(b)(1)) and Grammanik Bank (50 CFR 622.33(a)(3)). Based on habitat areas or sites identified as having particular ecological importance to Caribbean reef fish species, HAPCs would be designated off Puerto Rico at Hacienda la Esperanza, Manití; Bajuras and Tiberones, Isabela; Cabezas de San Juan, Fajardo; JOBANNERR, Jobos Bay; Bioluminescent Bays, Vieques; Boquerón State Forest; Pantano Cibuco, Vega Baja; Piñones State Forest; Río Espiritu Santo, Río Grande; Seagrass beds of Culebra Island (nine sites designated as Resource Category 1 and two additional sites); and Northwest Vieques seagrass west of Mosquito Pier, Vieques. Off St. Thomas, HAPCs would be designated off southeastern St. Thomas, including Cas Key and the mangrove lagoon in Great St. James Bay; and Saba Island/Perseverance Bay, including Flat Key and Black Point Reef. Off St. Croix, HAPCs would be designated as Salt River Bay National Historical Park and Ecological Preserve and Marine Reserve and Wildlife Sanctuary; Altona Lagoon; Great Pond; South Shore Industrial Area; and Sandy Point National Wildlife Refuge.

For the Coral Reef FMP HAPCs would be designated as those EFH habitat areas or sites identified as having particular ecological importance to Caribbean coral species. (See Section 6.7.1.3 of the comprehensive amendment for more detailed description of the respective HAPCs). Off Puerto Rico, these include Luis Peña Channel, Culebra; Mona/Monito; La Parguera, Lajas; Caja de Muertos, Ponce; Tourmaline Reef; Guánica state Forest; Punta Petrona, Santa Isabel; Ceiba state Forest; La Cordillera, Fajardo; Guayama Reefs; Steps and Tres Palmas, Rincon; Los Corchos Reef, Culebra; and Desecheo Reefs, Desecheo. Off St. Croix, HAPCs would be designated at the St. Croix Coral Reef Area of Particular Concern, including the East End Marine Park; Buck Island Reef National Monument; South Shore Industrial Area Patch Reef and Deep Reef System; Frederiksted Reef System; Cane Bay; and Green Cay Wildlife Refuge.

Memorandums of Understanding (MOUs)

The comprehensive amendment also proposes to develop MOUs to achieve cooperative management and compatible regulatory regimes. The comprehensive amendment proposes to develop a MOU between NMFS and the U.S. Virgin Islands government leading to the development of compatible regulations to achieve the objectives for Nassau grouper set forth in the Council's Reef Fish FMP in U.S. Virgin Islands and Federal waters of the U.S. Caribbean. In addition, the amendment proposes to develop an MOU between NMFS and the governments of Puerto Rico and the U.S. Virgin Islands to develop compatible regulations to achieve the management objectives set forth in the Council's Queen Conch FMP in state and Federal waters of the U.S. Caribbean.

Classification

At this time, NMFS has not determined that the comprehensive amendment that this proposed rule would implement is consistent with the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period on this proposed rule.

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

NMFS prepared a final supplemental environmental impact statement for this amendment; a notice of availability was published on June 24, 2005 (70 FR 36582).

The Council in conjunction with NMFS prepared an initial regulatory flexibility analysis (IRFA) as required by section 603 of the Regulatory Flexibility Act. 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 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 summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).

The proposed rule would implement an integrated FMP amendment that will bring the Caribbean Council's FMPs for spiny lobster, queen conch, reef fish, corals, and reef associated plants and invertebrates into full compliance with requirements of the Magnuson-Stevens Act. The Magnuson-Stevens Act provides the statutory basis for the proposed rule. The objectives of the proposed rule are to: (1) define FMUs and FMU sub-units, (2) specify biological reference points and stock status determination criteria, (3) regulate fishing mortality, (4) rebuild overfished fisheries, (5) conserve and protect yellowfin grouper, (6) achieve bycatch mandates, and (7) achieve the EFH mandates.

The proposed rule would affect commercial and recreational fishermen and charter fishing services in Puerto Rico and the U.S. Virgin Islands. In Puerto Rico, there are approximately 1,758 commercial fishers, of which 1,262 fishers are full-time and 496 are part-time. The number of commercial fishers in the U.S. Virgin Islands is estimated to be 349. Approximately 50 entities offer year-round charter services in the U.S. Caribbean, with the majority located in the U.S. Virgin Islands. NMFS expects that 88 Puerto Rican commercial fishers, or 5 percent, and 50 U.S. Virgin Islands commercial fishers, or 10 percent, and 3 of the charter services, or 5 percent operate in the EEZ and may be affected by this proposed rule. The Small Business Administration (SBA) size standards for the finfish, shellfish, and other marine fishing industries are the same; each has a size standard of $3.5 million in annual sales. The SBA size standard for the charter fishing industry is $6.0 million in annual sales. NMFS assumes that all of the commercial fishers in Puerto Rico, all of the commercial fishers in the U.S. Virgin Islands, and all of the charter fishing services that operate in the U.S. Caribbean EEZ are small businesses. Thus, NMFS expects that a total of 6.5 percent of small businesses in commercial fishing and 5 percent of small businesses in charter fishing services may be affected by this proposed rule.

The proposed rule would: (1) prohibit fishing for or possession of queen conch in the EEZ, with the exception of Lang Bank east of St. Croix; (2a) move aquarium trade species of Caribbean coral and reef fish from a management to a data collection only category, thereby removing existing fishery management restrictions on these species; (2b) move all species of Caribbean conch, with the exception of queen conch, to a data collection only category, thereby removing fishery management restrictions on these species; (3) close the EEZ to the possession of red, black, tiger, yellowfin, and yellowedge grouper from February 1 through April 30; (4) close the EEZ off the west coast of Puerto Rico to the possession of red hind from December 1 through February 28; (5) close the EEZ to the possession of black, blackfin, vermilion, and silk snapper from October 1 through December 31; (6) close the EEZ to the possession of mutton snapper and lane snapper from April 1 through June 30; (7a) implement an immediate prohibition against the use of gillnets and trammel nets to fish for Caribbean reef fish or Caribbean spiny lobster in the EEZ; (7b) require gillnets used to fish for other species in the EEZ to be tended at all times; (8) prohibit the filleting of fish in the EEZ and require that fish captured or possessed in the EEZ be landed with heads and fins intact, with minor exceptions; (9) close an area of the Grammanik Bank to fishing for or possessing any species of fish, except highly migratory species, from February 1 through April 30 of each year; (10) amend current requirements for trap construction such that only one escape panel is required, which could be the door; (11a) require at least one buoy that floats on the surface for all traps/pots fished individually for all fishing vessels that fish for or possess Caribbean spiny lobster or Caribbean reef fish species in or from the EEZ; (11b) require at least one buoy at each end of trap lines linking traps/pots for all fishing vessels that fish for or possess Caribbean spiny lobster or Caribbean reef fish species in or from the EEZ; (11c) prohibit use of pots/traps, gill/trammel nets, and bottom longlines on coral or hard bottom year-round in the existing seasonally closed areas and Grammanik Bank in the EEZ; and (11d) require an anchor retrieval system for all vessels that fish for or possess Caribbean reef fish species in or from the EEZ.

Identification, to the extent practicable, of all relevant federal rules that may duplicate, overlap, or conflict with the proposed rule is incorporated into the following discussion of compliance requirements and their associated economic impacts.

The queen conch fishery occurs primarily in state waters. Approximately 92 percent of Puerto Rican queen conch harvest is reported to be obtained from state waters of Puerto Rico, while 60 percent of U.S. Virgin Islands queen conch harvests is estimated to be harvested from state waters. Only 18 fishermen were observed harvesting queen conch in the EEZ in the U.S. Caribbean in 1999 (2 from the U.S. Virgin Islands and 16 from Puerto Rico). These 18 fishers represented 7 percent of 260 U.S. Caribbean queen conch fishers (209 in Puerto Rico and 51 in the U.S. Virgin Islands), or less than 1 percent of all small commercial fishing businesses in the U.S. Caribbean. The 16 fishers from Puerto Rico represent 8 percent of queen conch fishers from that area, while the 2 fishers from the U.S. Virgin Islands represent 4 percent of U.S. Virgin Islands queen conch fishers. Because of water depth in the EEZ, SCUBA is the primary harvest gear and likely the only gear used to harvest queen conch in the EEZ. Consequently, harvests of queen conch in the EEZ are limited to a great extent by the amount of time a diver can safely work underwater. It is likely that most to all of the 16 fishers from Puerto Rico that harvest queen conch from the EEZ generate the bulk of their revenues and profits from queen conch taken from shallower state waters. Furthermore, it is likely that their revenues and profits from queen conch harvested from the EEZ represent a small proportion of their total revenues and profits, and the proposed prohibition against fishing for or possession of queen conch in the EEZ, with the exception of Lang Bank, is not expected to have a significant adverse economic impact on these fishers. However, revenues and profits from queen conch fishing in the EEZ represent a larger proportion of total revenues and profits from queen conch for the 2 U.S. Virgin Islands queen conch fishers, and the prohibition could have a greater adverse economic impact on these fishers. Additionally, if Puerto Rico and the U.S. Virgin Islands were to further restrict queen conch fishing in state waters, the combined Federal and state actions would have a much greater adverse economic impact on these fishers.

Any small business that harvests species of Caribbean conch, other than queen conch, or aquarium trade species of Caribbean coral or reef fish in the EEZ could potentially benefit from the proposed movement of these species to a data-collection-only category because this would eliminate existing Federal fishing restrictions on these species. However, any economic benefit that is obtained by small businesses from this proposed movement is expected to be negligible because harvest of these species occurs predominantly in state waters.

The U.S. Caribbean reef fish fishery is essentially a multi-species fishery in that fishers catch multiple species of reef fish on any given trip. Consequently, the harvest of any particular species likely represents a small proportion of total revenue and profit for any given trip. In addition to the closures contained in the proposed rule, there is currently a seasonal closure from December 1 through February 28 to all fishing in red hind spawning areas and a seasonal closure from March 1 through June 30 to all fishing in the mutton snapper spawning aggregation area. To mitigate any revenue and profit losses that may result from the proposed closures, commercial fishers and charter fishing operations that fish for reef fish in the EEZ may intensify fishing before and after the seasonal closures or relocate to state waters. The mitigating economic effects of these behavioral changes cannot be forecast. Nonetheless, the combined seasonal closures may have a significant adverse economic impact on up to 6.5 percent of the small commercial fishing businesses and up to 5 percent of the small charter fishing businesses.

The prohibition against the use of gillnets and trammel nets to catch Caribbean spiny lobster and reef fish would require the adoption of other gear, most likely traps/pots, to harvest these species. NMFS does not believe, however, that Puerto Rican fishers significantly use either gillnets or trammel nets to fish in the EEZ because of water depth. Consequently, the prohibition would likely affect a small number of the small commercial fishing businesses in Puerto Rico that operate in the EEZ. In the U.S. Virgin Islands, more fishable habitat exists that can be targeted by nets due to the 3 nm (5.6 km) state boundary. Divers commonly deploy nets in shallower portions of Lang Bank off St. Croix, where they place the nets in the migratory pathways of reef fish. Nets accounted for 33 percent of parrotfish landings and 11 percent of surgeonfish landings in the U.S. Virgin Islands from 1994 through 2002. Furthermore, the use of gillnets and trammel nets has increased among St. Croix fishers because they have switched from traps due to frequent trap theft and vandalism. Consequently, the prohibition against the use of gill and trammel nets is expected to have a greater adverse economic impact on the small commercial fishing businesses in the U.S. Virgin Islands that operate in the EEZ.

The prohibition against the use of gill and trammel nets in the EEZ would not apply to the harvest of ballyhoo, gar, and flying fish, which are commonly found near the surface. When used to harvest these species, the nets must be tended at all times. Ballyhoo and gar are used as bait. At present, there is insufficient information to determine the economic impact on any small businesses that may currently harvest ballyhoo, gar, or flying fish in the EEZ by using untended gill and trammel nets.

Since 1990 and 1993, there have been prohibitions against the harvest and possession of Nassau grouper and Goliath grouper in the EEZ, respectively; however, anecdotal evidence suggests that illegal harvest and possession may occur. Prohibiting the filleting of all species of fish in the U.S. Caribbean EEZ, except highly migratory species or species caught and used for bait or the crew's own consumption, and requiring that all fish captured or possessed in the EEZ be landed with heads and fins intact would improve enforcement of existing prohibitions and result in reduced illegal revenues. At the same time, the prohibition may reduce legal revenues for those who fish for other species in the EEZ and fillet their fish due to limited storage capacity. Since whole fish take up more space in a vessel than fillets, harvest per trip may be reduced. However, since the typical fishing vessel in the Caribbean EEZ does not have fish holds and in many cases does not use coolers, it is expected that a substantial number of the small businesses do not fillet their catches in the EEZ and would not experience a significant adverse economic impact.

The proposed rule would prohibit fishing for or possession of any species of fish, except highly migratory species, within a 0.44 nm² (1.5 km²) area of Grammanik Bank from February 1 through April 30 of each year. The proposed seasonal Grammanik Bank closure is expected to have the greatest adverse economic impact on fishers who harvest yellowfin grouper because the reported spawning aggregation of yellowfin grouper is centered within the proposed closed area during this time. As previously discussed, the proposed rule would close the U.S. EEZ to the possession of red, black, tiger, yellowfin, and yellowedge grouper from February 1 through April 30. The combined impact of the Grammanik Bank closure and the February through April prohibition on yellowfin grouper fishers in the EEZ would be a prohibition on fishing for yellowfin grouper or any other fish in an area of Grammanik Bank for 3 months and a ban on the possession of yellowfin grouper in the EEZ for the same 3 months. To mitigate losses due to the prohibitions, commercial fishers may intensify fishing for yellowfin grouper and other species before and after the seasonal bans and/or move their fishing activities to state waters. The 1994 through 2002 average annual landings of all grouper species caught in both state and Federal waters in both St. Thomas and St. John is 22,368 lb (10,146 kg). The proportion of the grouper species caught in the EEZ during February through April within this average is expected to be comparatively small, and the proportion of the average that represents yellowfin grouper caught in the EEZ during those months even smaller. Average annual landings of yellowfin grouper in Puerto Rico from 1997 though 2002 is approximately 4,400 lb (1,996 kg). NMFS expects that the proportion of yellowfin grouper within this average caught in the EEZ from February 1 through April 30 is comparatively small, as well. Nonetheless, the adverse economic impact could be significant for some of the small commercial fishers that operate in the EEZ.

The proposed rule would require only one escape panel for traps and pots. Anecdotal information and the experience of local fishery management officials indicate that Caribbean fishers would be more likely to comply with such a requirement rather than the current requirement of two escape panels. Since the proposed rule would relax an existing restriction, no adverse economic impact associated with this measure is anticipated.

Although the current data collection system in place in the U.S. Caribbean, partially funded through Federal grants, does not require commercial fishers or charter fishing operations to report bycatch data, Puerto Rico has agreed to require that this information be reported, and the U.S. Virgin Islands has already incorporated bycatch data into its reporting requirement. The proposed rule would require consultation with Puerto Rico in an effort to add data fields to its existing mandatory landings reports in order to include consistent and standardized bycatch data. Consequently, the proposed rule does not directly impose any new reporting or recordkeeping requirements. However, the indirect economic impact of requiring additional reporting information will accrue to commercial fishing and charter fishing businesses in Puerto Rico through additional time to report bycatch information. At present, there is insufficient information to quantify the amount of time necessary to report such information and how this might affect business operation; however, the individual burden is not expected to be substantial and not impose a significant adverse impact.

The use of traps and pots in the EEZ is expected to be infrequent because of water depth. Nevertheless, for those who use traps and pots in the EEZ, the requirement to have at least one buoy that floats on the surface of all traps or pots fished individually and have at least one buoy at each end of trap lines linking traps/pots is not expected to impose a significant adverse economic impact since the additional gear expenses should be minor.

The proposed prohibition against the use of traps and pots, gill and trammel nets, and bottom longlines in currently existing, seasonally closed areas and the proposed Grammanik Bank seasonal closure represents a ban against the use of traditional gear types in these areas. This prohibition could be especially burdensome to U.S. Virgin Islands commercial fishers from St. Croix because they have already lost fishing areas in state waters due to U.S. Virgin Islands closures. The majority of fishable habitat off St. Croix is primarily isolated to Lang Bank and, currently, the head of Lang Bank is closed to all fishing from December 1 through February 28 each year. The proposed prohibition would ban the use of traditional gear in an area that encompasses approximately the easternmost half of the Bank. Consequently, NMFS expects that the ban will have a significant adverse economic impact on those St. Croix commercial fishers that currently use traps and pots, gills and trammel nets, and/or bottom longlines in the eastern half of the Bank.

The owner or operator of any fishing vessel, recreational or commercial, that fishes for or possesses Caribbean reef fish in or from the Caribbean EEZ must ensure that the vessel uses only an anchor retrieval system that recovers the anchor by its crown, thereby preventing the anchor from dragging along the bottom during recovery and damaging habitat. NMFS assumes that most commercial and charter fishing vessels that operate in the EEZ do not currently have an anchor retrieval system that meets the proposed requirement. For those fishers that have a grapnel hook, this would require incorporating an anchor rode reversal bar that runs parallel along the shank, and for those that have a fluke or plow-type anchor, a trip line consisting of a line from the crown of the anchor to a surface buoy would be required. There is currently insufficient information to quantify the number of fishing vessels that use the different types of anchors and the costs of making necessary modifications. However, NMFS expects the cost will not represent a significant adverse economic impact on these small businesses.

Significant alternatives to the proposed actions that were considered would have increased the significant adverse economic impact on small businesses. One alternative would have banned fishing for or possession of queen conch in the entire EEZ, which could have had a greater adverse economic impact on the 7 percent of small businesses that harvest queen conch in the EEZ. Although sufficient data are not available to determine the impact of this rejected alternative on the relatively few individual vessel operators that harvest queen conch in the EEZ, it is expected that few, if any, such operators have a total dependence on harvest from the EEZ because the majority of queen conch are harvested from state waters. Regardless, the opportunity to shift fishing effort from the EEZ to state waters would tend to mitigate any adverse impacts. Alternatives to the preferred seasonal bans on the possession of mutton snapper and lane snapper, red hind, and the respective snapper and grouper species would have banned the possession of all species managed by the Caribbean Council for 3 months, 6 months, or a year. Such bans would have had greater adverse economic impacts than the proposed rule. Alternatives to the proposed prohibition on the use of gillnets and trammel nets in the EEZ considered closing various areas of the EEZ to fishing for or possession of all species or eliminating the use of fish traps in the EEZ, which would have had greater adverse economic impacts. Alternatives to the proposed ban on filleting of fish in the EEZ would have established seasonal or area closures to protect spawning stocks of Nassau and Goliath grouper, which would have had greater adverse economic impact on fishers, especially St. Croix fishers. One alternative to the proposed seasonal ban on fishing for or possession of all fish in the Grammanik Bank, except highly migratory species, would have increased the size and length of the ban and the second alternative would have added a year-round ban on fishing for or possession of yellowfin grouper in the EEZ. Both of these alternatives would have increased the adverse economic impact. Finally, an alternative to the proposed modification of the trip ticket system to include bycatch information would have implemented a Federal permit system for commercial and charter fishing businesses that operate in the EEZ, with a mandatory monthly reporting requirement, and would have had a greater adverse impact than the proposed action.

List of Subjects

50 CFR Part 600

Administrative practice and procedure, Confidential business information, Fisheries, Fishing, Fishing vessels, Foreign relations, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Statistics.

50 CFR Part 622

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

Dated: September 2, 2005.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR parts 600 and 622 are proposed to be amended as follows:

PART 600—MAGNUSON-STEVENS ACT PROVISIONS

1. The authority citation for part 600, Subpart H continues to read as follows:

Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

§ 600.725

[Amended]

2. In § 600.725, amend the table in paragraph (v), section V., as follows:

a. Under the heading “1. Caribbean Spiny Lobster Fishery (FMP)”, remove entry “C” from the first and second columns; redesignate entries “D” and “E” as “C” and “D”, respectively, in the first and second columns; and remove the words “gillnet, trammel net” from the second column in the newly redesignated entry “D”; and

b. Under the heading “2. Caribbean Shallow Water Reef Fish Fishery (FMP)”, remove entry “C” from the first and second columns; and redesignate entry “D” as “C” in the first and second columns.

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

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

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

4. In § 622.2, the definition of “Caribbean conch resource” is removed, and a definition of “Caribbean queen conch” is added in alphabetical order to read as follows:

§ 622.2

Definitions and acronyms.

* * * * *

Caribbean queen conch means the species, Strombus gigus, or a part thereof.

* * * * *

5. In § 622.6, paragraph (b)(1)(ii)(A) is revised to read as follows:

§ 622.6

Vessel and gear identification.

* * * * *

(b) * * *

(1) * * *

(ii) * * *

(A) Caribbean EEZ. Traps or pots used in the Caribbean spiny lobster or Caribbean reef fish fisheries that are fished individually, rather than tied together in a trap line, must have at least one buoy attached that floats on the surface. Traps or pots used in the Caribbean spiny lobster or Caribbean reef fish fisheries that are tied together in a trap line must have at least one buoy that floats at the surface attached at each end of the trap line. Each buoy must display the official number and color code assigned to the vessel by Puerto Rico or the U.S. Virgin Islands, whichever is applicable.

* * * * *

6. In § 622.31, paragraph (l) is added to read as follows:

§ 622.31

Prohibited gear and methods.

* * * * *

(l) Gillnets and trammel nets in the Caribbean EEZ. A gillnet or trammel net may not be used in the Caribbean EEZ to fish for Caribbean reef fish or Caribbean spiny lobster. Possession of a gillnet or trammel net and any Caribbean reef fish or Caribbean spiny lobster in or from the Caribbean EEZ is prima facie evidence of violation of this paragraph (l). A gillnet or trammel net used in the Caribbean EEZ to fish for any other species, including species in the family Exocoetidae, flyingfishes, or the family Belonidae, needlefishes, must be tended at all times.

7. In § 622.32, paragraph (b)(1)(ii) is revised, and paragraph (b)(1)(iv) is added to read as follows:

§ 622.32

Prohibited and limited-harvest species.

* * * * *

(b) * * *

(1) * * *

(ii) No person may fish for or possess goliath grouper and Nassau grouper in or from the Caribbean EEZ. Such fish caught in the Caribbean EEZ must be released immediately with a minimum of harm.

* * * * *

(iv) No person may fish for, or possess on board a fishing vessel, a Caribbean queen conch in or from the Caribbean EEZ, except during October through June in the area east of 64°34′ W. longitude which includes Lang Bank east of St. Croix, U.S. Virgin Islands.

* * * * *

8. In § 622.33, paragraph (a) introductory text and paragraph (a)(3) are revised, and paragraphs (a)(4) through (a)(7) are added to read as follows:

§ 622.33

Caribbean EEZ seasonal and/or area closures.

(a) Seasonal closures. In addition to the other restrictions specified in this paragraph (a), fishing with pots, traps, bottom longlines, gillnets or trammel nets is prohibited year-round in the closed areas specified in paragraphs (a)(1), (a)(2), and (a)(3) of this section.

* * * * *

(3) Grammanik Bank closed area. (i) The Grammanik Bank closed area is bounded by rhumb lines connecting, in order, the following points:

Point	North lat.	West long.
A	18°11.898′	64°56.328′
B	18°11.645′	64°56.225′
C	18°11.058′	64°57.810′
D	18°11.311′	64°57.913′
A	18°11.898′	64°56.328′

(ii) From February through April, each year, no person may fish for or possess any species of fish, except highly migratory species, in or from the Grammanik Bank closed area. This prohibition on possession does not apply to such fish harvested and landed ashore prior to the closure. For the purpose of paragraph (a)(4) of this section, “fish” means finfish, mollusks, crustaceans, and all other forms of marine animal and plant life other than marine mammals and birds. “Highly migratory species” means bluefin, bigeye, yellowfin, albacore, and skipjack tunas; swordfish; sharks (listed in Appendix A to Part 635 of this title); white marlin, blue marlin, sailfish, and longbill spearfish.

(4) Red, black, tiger, yellowfin, or yellowedge grouper. From February through April, each year, no person may fish for or possess red, black, tiger, yellowfin, or yellowedge grouper in or from the Caribbean EEZ. This prohibition on possession does not apply to such grouper harvested and landed ashore prior to the closure.

(5) Additional red hind closure. From December through February, each year, no person may fish for or possess red hind in or from the Caribbean EEZ west of 67°10′ W. longitude. This prohibition on possession does not apply to red hind harvested and landed ashore prior to the closure.

(6) Vermilion, black, silk, or blackfin snapper. From October through December, each year, no person may fish for or possess vermilion, black, silk, or blackfin snapper in or from the Caribbean EEZ. This prohibition on possession does not apply to such snapper harvested and landed ashore prior to the closure.

(7) Lane or mutton snapper. From April through June, each year, no person may fish for or possess lane or mutton snapper in or from the Caribbean EEZ. This prohibition on possession does not apply to such snapper harvested and landed ashore prior to the closure.

* * * * *

9. In § 622.38, paragraphs (a), (d), and (f) are revised to read as follows:

§ 622.38

Landing fish intact.

* * * * *

(a) The following must be maintained with head and fins intact: cobia, king mackerel, and Spanish mackerel in or from the Gulf, Mid-Atlantic, or South Atlantic EEZ, except as specified for king mackerel in paragraph (g) of this section; dolphin and wahoo in or from the Atlantic EEZ; South Atlantic snapper-grouper in or from the South Atlantic EEZ, except as specified in paragraph (h) of this section; finfish in or from the Caribbean EEZ, except as specified in paragraphs (c) and (d) of this section; and finfish in or from the Gulf EEZ, except as specified in paragraphs (c) and (d) of this section. Such fish may be eviscerated, gilled, and scaled, but must otherwise be maintained in a whole condition.

* * * * *

(d) In the Gulf EEZ or Caribbean EEZ:

(1) Bait is exempt from the requirement to be maintained with head and fins intact.

(i) For the purpose of this paragraph (d)(1), “bait” means—

(A) Packaged, headless fish fillets that have the skin attached and are frozen or refrigerated;

(B) Headless fish fillets that have the skin attached and are held in brine; or

(C) Small pieces no larger than 3 in3 (7.6 cm3) or strips no larger than 3 inches by 9 inches (7.6 cm by 22.9 cm) that have the skin attached and are frozen, refrigerated, or held in brine.

(ii) Paragraph (d)(1)(i) of this section notwithstanding, a finfish or part thereof possessed in or landed from the Gulf EEZ or Caribbean EEZ that is subsequently sold or purchased as a finfish species, rather than as bait, is not bait.

(2) Legal-sized finfish possessed for consumption at sea on the harvesting vessel are exempt from the requirement to have head and fins intact, provided—

(i) Such finfish do not exceed any applicable bag limit;

(ii) Such finfish do not exceed 1.5 lb (680 g) of finfish parts per person aboard; and

(iii) The vessel is equipped to cook such finfish on board.

* * * * *

(f) Queen conch in or from the Caribbean EEZ must be maintained with meat and shell intact.

* * * * *

10. In § 622.40, paragraph (b)(1)(i) is revised to read as follows:

§ 622.40

Limitations on traps and pots.

* * * * *

(b) * * *

(1) * * *

(i) A fish trap used or possessed in the Caribbean EEZ must have a panel located on one side of the trap, excluding the top, bottom, and side containing the trap entrance. The opening covered by the panel must measure not less than 8 by 8 inches (20.3 by 20.3 cm). The mesh size of the panel may not be smaller than the mesh size of the trap. The panel must be attached to the trap with untreated jute twine with a diameter not exceeding 1/8 inch (3.2 mm). An access door may serve as the panel, provided it is on an appropriate side, it is hinged only at its bottom, its only other fastening is untreated jute twine with a diameter not exceeding 1/8 inch (3.2 mm), and such fastening is at the top of the door so that the door will fall open when such twine degrades. Jute twine used to secure a panel may not be wrapped or overlapped.

* * * * *

11. In § 622.41, paragraph (b) is revised to read as follows:

§ 622.41

Species specific limitations.

* * * * *

(b) Caribbean reef fish anchoring restriction. The owner or operator of any fishing vessel, recreational or commercial, that fishes for or possesses Caribbean reef fish in or from the Caribbean EEZ must ensure that the vessel uses only an anchor retrieval system that recovers the anchor by its crown, thereby preventing the anchor from dragging along the bottom during recovery. For a grapnel hook, this could include an incorporated anchor rode reversal bar that runs parallel along the shank, which allows the rode to reverse and slip back towards the crown. For a fluke- or plow-type anchor, a trip line consisting of a line from the crown of the anchor to a surface buoy would be required.

* * * * *

12. In Appendix A to Part 622, Tables 1 and 2 are revised, and Table 5 is added to read as follows:

* * * * *

Table 5 of Appendix A to Part 622—Caribbean Conch Resources

Queen conch, Strombus gigas

The following species are included for data collection purposes only:

Atlantic triton's trumpet, Charonia variegata

Cameo helmet, Cassis madagascarensis

Green star shell, Astrea tuber

Hawkwing conch, Strombus raninus

Milk conch, Strombus costatus

Roostertail conch, Strombus gallus

West Indian fighting conch, Strombus pugilis

True tulip, Fasciolaria tulipa