Federal Register, Volume 75 Issue 250 (Thursday, December 30, 2010)

[Federal Register Volume 75, Number 250 (Thursday, December 30, 2010)]
[Rules and Regulations]
[Pages 82280-82295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32831]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 0907271173-0629-03]
RIN 0648-AY11

Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Snapper-Grouper Fishery Off the Southern Atlantic States; Amendment 17B

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement Amendment 17B 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). This final rule establishes
annual catch limits (ACLs) and accountability measures (AMs) for eight
snapper-grouper species in the FMP that are undergoing overfishing, and
for black grouper, which was recently assessed and determined to not be
undergoing overfishing or overfished; modifies management measures to
limit total mortality of those species to the ACL; and adds ACLs,
annual catch targets (ACTs), and AMs to the list of management measures
that may be amended via the framework process. The intent of this final
rule is to address overfishing of eight snapper-grouper species while
maintaining catch levels consistent with achieving optimum yield.

DATES: This rule is effective January 31, 2011.

ADDRESSES: Copies of the Final Regulatory Flexibility Analysis (FRFA)
and the record of decision may be obtained from Kate Michie, Southeast
Regional Office, NMFS, 263 13th Avenue, South, St. Petersburg, FL
33701.

FOR FURTHER INFORMATION CONTACT: Kate Michie, telephone: 727-824-5305.

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.
On September 22, 2010, NMFS published a notice of availability of
Amendment 17B and requested public comment (75 FR 57734). On October
10, 2010, NMFS published a proposed rule for Amendment 17B and
requested public comment (75 FR 62488). NMFS approved Amendment 17B on
December 21, 2010. This final rule for Amendment 17B implements ACLs
and AMs for eight snapper-grouper species undergoing overfishing. The
rationale for the measures contained in Amendment 17B is provided in
the amendment and in the preamble to the proposed rule and is not
repeated here.

Comments and Responses

A total of 175 comments were received on Amendment 17B and the
proposed rule, including comments from individuals, State and Federal
agencies, environmental organizations, and fishing associations. NMFS
received 25 comments of general support and 48 individual comments in
general opposition of Amendment 17B, 31 of which specifically oppose
the deepwater closure for six deepwater snapper-grouper species.
Included in the letters of opposition was a minority report submitted
by the five members of the Council who voted against the final approval
of Amendment 17B. NMFS also received 85 identical postcards opposing
implementation of Amendment 17B, and 8 comments that did not support or
oppose Amendment 17B but contained remarks on specific actions
contained in the amendment. Additionally, 5 comments were received from
environmental organizations, one of which was endorsed by two of the
organizations, and one which was endorsed by 30,794 individuals. One
State and one Federal agency submitted comments on Amendment 17B, and 2
comments were unrelated to actions contained in Amendment 17B. Of the
175 comments received, 22 contained remarks on the potential economic
impacts of Amendment 17B. Specific comments related to the actions
contained in the amendment and the rule as well as NMFS'S respective
responses, are summarized below.
Comment 1: Several commenters suggested the prohibition on harvest
and possession of six deepwater snapper-grouper species beyond 240 feet
(73 m) is not necessary, and reductions in incidental harvest of
speckled hind and warsaw grouper could be achieved through: (1) A
temporary prohibition on commercial harvest and sale of speckled hind
and warsaw grouper; (2) responsible fishing methods such as venting
fish; (3) a temporary deepwater closure; or (4) seasonal closures.
Response: Commercial sale of speckled hind and warsaw grouper is
currently prohibited. NMFS previously considered a Council-approved
measure to use venting tools for snapper-grouper species to reduce
bycatch mortality caused by barotrauma (injuries sustained in response
to the sudden pressure change when brought to the surface from depth),
in Amendment 16 to the FMP. The measure requiring the use of venting
tools was disapproved based on data indicating the benefits of venting
are not clear for all species, and venting could potentially cause harm
in some cases if excluded unnecessarily or improperly. NMFS determined
that additional guidance is needed to identify species that would
benefit from venting to ensure the maximum benefit is provided to these
species. If future research on the use of venting tools, and/or any
other barotrauma mitigation methods, indicate speckled hind or warsaw
grouper would benefit from the required use of such tools or
techniques, the Council has the option to consider the issue again in a
future amendment.
Implementing the deepwater snapper-grouper closure for any period
of time less than year-round could result in incidental harvest and
bycatch mortality of speckled hind and warsaw grouper, and could
negatively impact efforts to protect South Atlantic speckled hind and
warsaw grouper. At its December 2010 meeting, the Council requested a
regulatory amendment be prepared to examine new information related to
the prohibition on harvest and possession of the six deepwater snapper-
grouper species beyond 240 ft (73 m). The regulatory amendment would
re-evaluate the deepwater snapper-grouper closure and the new
information, and determine if there are more effective measures to
reduce bycatch mortality of speckled hind and warsaw grouper.
Additionally, a new benchmark stock assessment for speckled hind and
warsaw grouper is scheduled to be conducted in 2013. If the results of
this new stock assessment indicate some modification to the management
measures implemented through Amendment 17B is needed, the Council would
make such adjustments as appropriate.
Comment 2: Several commenters stated the prohibition on all bottom
fishing beyond 240 ft (73 m) is draconian in nature, and too expansive
to protect only two rarely captured snapper-grouper species.
Response: The deepwater snapper-grouper closure proposed in
Amendment 17B would not prohibit all bottom fishing beyond 240 ft (73
m). The closure would prohibit the harvest

[[Page 82281]]

and possession of six snapper-grouper species that co-occur with
specked hind and warsaw grouper including, snowy grouper, blueline
tilefish, yellowedge grouper, misty grouper, queen snapper, and silk
snapper.
Both speckled hind and warsaw grouper are undergoing overfishing,
and the extent to which they are overfished is unknown. These species
are extremely vulnerable to overfishing because they are slow growing,
long-lived, and change sex from female to male with increasing size and
age. These species are not often targeted due to the current bag limits
(one of each per vessel per trip), but when they are caught they are
likely to suffer release mortality. The incidental catch of speckled
hind and warsaw grouper, particularly in deep water where release
mortality is high, may be responsible for the continued overfishing of
these species. Therefore, the Council determined that a prohibition on
the harvest and possession of speckled hind and warsaw grouper, along
with their co-occurring species caught in 240 ft (73 m) and greater,
was an appropriate action to reduce bycatch mortality of speckled hind
and warsaw grouper in depths where depth-related release mortality is
very high. Like gag, speckled hind and warsaw grouper are slow growing,
long lived, and have similar life histories. Therefore, speckled hind
and warsaw grouper may be expected to have similar depth-related
bycatch mortality rates to gag. If depth-related mortality of speckled
hind and warsaw grouper is similar to gag, release mortality at depths
of 240 ft (73 m) would be expected to be greater than 70 percent. The
deepwater closure is expected to provide protection to the largest,
most fecund fish and help ensure a natural sex ratio into the future.
According to the Amendment 17B biological impacts analysis, prohibiting
all harvest of deepwater snapper-grouper species beyond 240 ft (73 m)
would also protect spawning aggregations.
Comment 3: One commenter stated that NMFS should concentrate
efforts on managing other overexploited species such as mutton snapper
and yellowtail snapper.
Response: Mutton snapper and yellowtail snapper are among the 73
species in this FMP. Recent assessments indicate that mutton snapper
and yellowtail snapper are not overfished and are not experiencing
overfishing. The Reauthorized Magnuson-Stevens Act requires that ACLs
and AMs be specified for all species undergoing overfishing in 2010 and
species not undergoing overfishing in 2011. Speckled hind and warsaw
grouper are both undergoing overfishing according to the 2009 Report to
Congress on the Status of U.S. Fisheries (and in all previous such
Reports to Congress). Therefore, NMFS is required to establish ACLs at
levels to end and prevent overfishing of speckled hind and warsaw
grouper, along with management measures to limit harvest levels to the
ACL. In the case of speckled hind and warsaw grouper, the ACL is zero,
and the deep water closure is intended to reduce depth-related bycatch
mortality to reduce the probability that overfishing will occur. The
Council is currently developing a Comprehensive ACL Amendment, which
would specify ACLs and AMs for mutton snapper and yellowtail snapper.
Comment 4: One commenter stated the cumulative impact of the recent
regulations approved through Amendment 17A to the FMP and the
regulations contained in this final rule are overly complex for
commercial and for-hire fishermen to abide by.
Response: The Magnuson-Stevens Act, as reauthorized in 2006,
mandates the Council and NMFS establish ACLs and AMs for species
undergoing overfishing by 2010. Section 303(a)(15) of the Magnuson-
Stevens Act states, in relevant part, that any FMP which is prepared by
any Council ``shall establish a mechanism for specifying annual catch
limits in the plan * * * implementing regulations, or annual
specifications, at a level such that overfishing does not occur in the
fishery, including measures to ensure accountability.'' Therefore, in
order to meet these mandates, several recent regulatory changes have
been made in the snapper-grouper fishery. NMFS strives to minimize
complexity in its regulations, but must meet statutory mandates such as
the requirements for ACLs and AMs.
Comment 5: Several commenters stated the data upon which the
prohibition on the harvest and possession of the six deepwater snapper-
grouper species beyond 240 ft (73 m) is based is out of date,
insufficient, and/or incorrect, and is not the best available science.
One commenter inquired if the data used to inform the deepwater closure
action was subject to an independent review. Additionally, two
commenters cite the recently published Federal Register notice that
denies a petition to list warsaw grouper as threatened or endangered
under the Endangered Species Act (ESA) as based on a lack of
substantial scientific or commercial information, and implied that the
speckled hind and warsaw grouper management measures in Amendment 17B
are not based on adequate scientific information.
Response: The intent of the action to prohibit the harvest of six
deepwater species is to reduce bycatch mortality of speckled hind and
warsaw grouper. Speckled hind and warsaw grouper are undergoing
overfishing, and therefore, action must be taken to ensure overfishing
is ended and does not occur. The Southeast Fisheries Science Center
(SEFSC) certified, in a memorandum dated May 19, 2010, that Amendment
17B is based upon the best available scientific information. At its
December 2010 meeting, the Council requested that a regulatory
amendment be prepared to examine new information related to the
prohibition on the harvest and possession of the six deepwater snapper-
grouper species. The regulatory amendment would evaluate the new
information and the deepwater snapper-grouper closure and determine if
there are more effective measures to reduce bycatch mortality of
speckled hind and warsaw grouper.
The petition to list speckled hind and warsaw grouper as endangered
or threatened was denied by NMFS under the ESA because ``the petition
does not present substantial scientific or commercial information
indicating the petition action may be warranted'' (75 FR 59690,
September 28, 2010). This means that warsaw grouper was not determined
to be endangered (i.e., is in danger of extinction throughout all or a
significant portion of its range) or threatened (i.e., is likely to
become endangered within the foreseeable future throughout all or a
significant portion of its range). The negative finding on the ESA
petition does not necessarily mean that inadequate scientific
information was used in Amendment 17B. Under the Magnuson-Stevens Act,
NMFS must use the best scientific information available when
establishing management measures, including ACLs and AMs.
Comment 6: Several commenters are concerned that the prohibition on
harvest and possession of six deepwater snapper-grouper species beyond
a depth of 240 ft (73 m) will lead to increased incidences of release
mortality.
Response: Prohibiting the harvest and possession of species that
are most often caught with speckled hind and warsaw grouper in deeper
waters would reduce the incentive to target those co-occurring species.
As a result, a reduction in depth-related bycatch mortality of speckled
hind and warsaw grouper is expected.
Comment 7: Several commenters feel the deepwater closure in
Amendment

[[Page 82282]]

17B should only apply to the commercial sector.
Response: In the northern portion of the Council's area of
jurisdiction, fisheries and fishery components in depths greater than
240 ft (73 m) are primarily prosecuted by the commercial sector.
However, the Council chose to include the recreational sector in the
prohibition on harvest and possession of snowy grouper, blueline
tilefish, yellowedge grouper, misty grouper, queen snapper, and silk
snapper beyond 240 ft (73 m) because recreational fishing in deeper
waters is common in the southern area of the Council's jurisdiction
i.e., southeast Florida and the Florida Keys, the 240-ft (73-m) depth
contour is close to shore. Because deep water is much more accessible
to recreational fishermen off southern Florida, recreational fishermen
are more likely to incidentally capture speckled hind and warsaw
grouper in depths where these fish are more likely to die as a result
of barotrauma-related injuries.
Comment 8: One commenter stated the lack of warsaw grouper landings
data was due to fishermen misidentifying warsaw grouper as snowy
grouper.
Response: It is unlikely warsaw grouper landings are significantly
underreported due to misidentification with snowy grouper. Snowy
grouper and warsaw grouper do share some common physical
characteristics, however, these species also have several
distinguishing characteristics that make it possible to easily identify
both species. When fishermen submit species landings information to
NMFS, identification accuracy is not expected to be 100 percent, and
this is taken into consideration when conducting stock assessments.
Comment 9: One commenter asked how NMFS will determine when the
speckled hind and warsaw grouper stocks are rebuilt, if fishing for
them is prohibited.
Response: The overfished status of speckled hind and warsaw grouper
is unknown. Therefore, a rebuilding plan is not required. The deepwater
closure is intended to reduce depth-related bycatch mortality to help
end overfishing of speckled hind and warsaw grouper. Prohibiting
harvest of one or more species in a certain area does not prevent the
collection of scientific information on those species. The SEFSC
conducts fishery-independent studies and surveys to measure the overall
abundance of fish stocks in the South Atlantic. In Amendment 17A to the
FMP, the Council required implementation of a fishery-independent
monitoring program. This program would continue the long-term data set
that already exists for snapper-grouper species from sampling programs
such as the Southeast Monitoring Assessment and Prediction program, and
the Marine Resources Monitoring Assessment and Prediction program in
the South Atlantic, which monitor fish stocks in depths shallower and
deeper than 240 ft (73 m), and these programs should continue to
provide information on warsaw grouper and speckled hind.
Fishery-dependent data may also be collected during a period when
certain species may not be landed. These data may be collected through
the Cooperative Research Program (CRP), which is a competitive Federal
assistance program that funds projects seeking to increase and improve
the working relationship between researchers from NMFS, State fishery
agencies, universities, and fishermen. The intent of the CRP in the
Southeast Region is to utilize the collective experience of fishermen
and scientists to advise fishery managers of best fishery management
practices based on fishing experience and sound scientific research
procedures. Other fishery-dependent data collection sources include the
Marine Recreational Fisheries Statistical Survey (MRFSS) (now part of
the Marine Recreational Information Program (MRIP)), commercial
logbooks, headboat logbooks, observer data, the Trip Interview Program,
and dealer reported landings.
Comment 10: After the Council voted to approve Amendment 17B for
Secretarial review, the five members of the Council who voted against
the final approval of Amendment 17B submitted a minority report to
NMFS, dated March 23, 2010. This report is endorsed by one fishing
organization and one State agency. The minority report outlines the
dissenting Council members' opposition to the deepwater closure for the
six co-occurring snapper-grouper species. Specifically, these Council
members oppose the inclusion of blueline tilefish in the list of
snapper-grouper species prohibited beyond 240 ft (73 m). The report
states the deepwater closure was based on inadequate assessments, does
not include rebuilding plans for speckled hind and warsaw grouper, and
does not consider and properly analyze the impacts of the prohibition
on the sale of bag limit-caught snapper-grouper. The report also notes
a lack of data on the range where speckled hind and warsaw grouper are
found, particularly off the coast of North Carolina. The report
mentions that the species most commonly caught with speckled hind are
vermilion snapper, red grouper, and scamp, which are not deepwater
species. The minority report suggests that other alternatives besides
the deep water closure should have been considered by the Council,
including allowing fishing for species other than speckled hind and
warsaw grouper on various well-known ship wrecks or other potential
sites and closing only a percentage of the most productive bottom
habitat. The minority report also lists fish stocks that have been
successfully rebuilt or are currently rebuilding without the
utilization of large area closures for fishery management, namely
Atlantic king and Spanish mackerel, greater amberjack, and golden
tilefish.
Response: Speckled hind and warsaw grouper have not undergone a
recent stock assessment. However, the 2009 Report to Congress on the
Status of U.S. Fisheries states that both speckled hind and warsaw
grouper are undergoing overfishing and their overfished status is
unknown. The stock status determination for these two species included
in the Report to Congress is the best scientific information available
for speckled hind and warsaw grouper. Therefore, NMFS is required to
establish ACLs for these species at levels that can end, as well as
prevent, overfishing and implement management measures to limit harvest
levels of these species to the ACL. Since the overfished status of
speckled hind and warsaw grouper is currently unknown, rebuilding plans
are not required at this time. To address overfishing of speckled hind
and warsaw grouper, the Council's Scientific and Statistical Committee
(SSC) recommended an Acceptable Biological Catch (ABC) of zero for both
species based on landed catch, rather than total removals. Subsequent
to the SSC ABC recommendation, the Council specified an ACL of zero for
speckled hind and warsaw grouper.
Speckled hind and warsaw grouper are extremely vulnerable to
overfishing because they are slow growing, long-lived, change sex from
female to male with increasing size and age, and occur in deep water
where release mortality is very high. The prohibition on the harvest
and possession of six deepwater snapper-grouper species, including
blueline tilefish, that co-occur with speckled hind and warsaw grouper
is expected to reduce the incidental take of speckled hind and warsaw
grouper in water depths where survival of released fish is low. Of the
six species for which harvest and possession would be prohibited beyond
240 ft (73 m), commercial and recreational landings

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are highest for blueline tilefish and snowy grouper, which are often
caught together in the same location and during the same trip. Speckled
hind and warsaw grouper can be incidentally caught while blueline
tilefish and other deepwater species are being targeted. This
incidental catch, if allowed to continue, may contribute to the
continued overfishing of speckled hind and warsaw grouper. Furthermore,
recent snowy grouper regulations resulted in effort shifts from snowy
grouper to blueline tilefish, which could increase the probability of
snowy grouper bycatch after the 100-lb (45-kg) trip limit or quota for
snowy grouper is met, in addition to a potential for increased bycatch
of speckled hind and warsaw grouper. If blueline tilefish were
eliminated from the list of prohibited deepwater species, incidental
take of speckled hind and warsaw grouper could persist in that portion
of the snapper-grouper fishery; therefore, the Council determined it
would be prudent to retain blueline tilefish in the list of prohibited
species beyond a depth of 240 ft (73 m).
The minority report includes an examination of trip ticket
information from vessels fishing for blueline tilefish north of Cape
Hatteras, North Carolina, which suggests blueline tilefish can be
captured without resultant incidental catch of speckled hind and warsaw
grouper. At its December 2010 meeting, the Council considered this new
information, and voted to request the preparation of a regulatory
amendment to examine the new information and to determine if there are
more effective management measures that could be implemented to reduce
the depth-related bycatch mortality of speckled hind and warsaw
grouper.
The Magnuson-Stevens Act requires the establishment of ACLs and
AMs. In the comments and responses section of the final rule
implementing the National Standard 1 Guidelines, NMFS states, ``ACLs
must be implemented using the best data and information available * * *
NMFS believes that Councils must implement the best ACLs possible with
the existing data'' (74 FR 3178, January 16, 2009). As required by the
Magnuson-Stevens Act, the Council has developed ACLs and AMs for
speckled hind and warsaw grouper using the best scientific information
available during the amendment development process.
The minority report points out that the species most commonly
caught with speckled hind are vermilion snapper, red grouper, and
scamp, none of which are deepwater species. Juvenile speckled hind and
warsaw grouper are found in depths less than 240 ft (73 m) and are
often caught with species such as vermilion snapper, red grouper,
scamp, and others. However, the Council chose not to prohibit catch in
shallower water because it is likely that some portion of released
speckled hind and warsaw grouper would survive the trauma of capture.
Like gag, speckled hind and warsaw grouper are slow growing, long
lived, and have similar life histories. Therefore, they may be expected
to have similar bycatch mortality rates to gag. If release mortality
rates of speckled hind and warsaw grouper are similar to those
published for gag, release mortality at depths greater than 240 ft (73
m) would be expected to be greater than 70 percent. Based on this
assumption, the Council determined the most effective method of
reducing the incidence of bycatch related mortality in deepwater was to
prohibit the harvest and possession of the species that co-occur with
speckled hind and warsaw grouper beyond 240 ft (73 m).
During the development process for Amendment 17B, alternatives such
as allowing fishing for species other than speckled hind and warsaw
grouper on various well-known ship wrecks or other potential sites, and
closing only a percentage of the most productive bottom habitat, were
not proposed by Council members and thus were not included in the
document for analysis. The approval and implementation of the
prohibition on harvest and possession of six deepwater snapper-grouper
species beyond 240 ft (73 m) does not preclude the Council from
proposing future action to modify this prohibition if scientific
information indicates it is appropriate to do so. Re-addressing the
deepwater closure will be accomplished through a regulatory amendment
proposed by the Council at its December 2010 meeting.
The minority report states the impact of the prohibition on bag-
limit sales of snapper-grouper implemented through Amendment 15B to the
FMP was not properly analyzed in Amendment 17B because the impact of
sales from only snapper-grouper fishermen with Federal permits was not
determined. The impacts of the bag limit sale prohibition were analyzed
and documented by NMFS in the supporting documentation for Amendment
15B, including the National Environmental Policy Act document, the
Regulatory Impact Review, and the Regulatory Flexibility Analysis. The
analysis conducted for Amendment 15B to the FMP used State trip ticket
data because at the time the analysis was conducted, fishermen that did
not possess a Federal permit for snapper-grouper could still sell their
bag limit caught fish. The analysis conducted for Amendment 17B,
however, did not use trip ticket data and used only Federal logbook
data, because at that time the prohibition on bag limit sales had been
implemented. As such, the relevant economic analysis does not include
bag limit sales information and was conducted correctly.
Different actions are needed to end overfishing of species
depending on their life history and habitat requirements. Snapper-
grouper species such as speckled hind and warsaw grouper are long-lived
and slow growing and require more stringent management measures, such
as area closures, to end overfishing. King mackerel and Spanish
mackerel are not as long lived nor do they suffer the high release
mortality rates of speckled hind and warsaw grouper. Therefore,
management measures that would be needed to end overfishing of mackerel
species may not be as onerous as those that would be needed for long-
lived species found in deep water.
Golden tilefish has never been determined to be overfished and it
will not be known if actions taken to end overfishing of golden
tilefish were successful until the stock is assessed again in 2011.
Greater amberjack have never been determined to be overfished or
experienced overfishing.
Comment 11: One commenter questioned why co-occurring species
deeper than 240 ft (73 m) would be prohibited to protect speckled hind
and warsaw grouper when these species are not frequently caught in
these depths. The species most commonly caught along with speckled hind
are vermilion snapper, red grouper, and scamp, none of which are
considered by the Council to be deepwater species. Since speckled hind
predominately live inshore of 40 fathoms and warsaw grouper are common
inside of 100 ft (31 m), at least off the Florida coast, NMFS should
consider closing the entire EEZ.
Response: The Council is aware that speckled hind and warsaw
grouper are currently not commonly caught by fishermen and that the
inshore shelf edge in 160 ft (49 m) is the area where juveniles are
most abundant. However, adults of these species do occur in deep water
where release mortality is extremely high and are incidentally captured
when fishermen target co-occurring species. Therefore, the Council
determined that prohibiting the harvest of species that co-occur with
warsaw grouper and speckled hind in water deeper than 240 ft (73 m)
could help reduce bycatch mortality, particularly as population biomass
increases and more adults occur in

[[Page 82284]]

deeper water. Speckled hind and warsaw grouper occur in shallower water
as juveniles with vermilion snapper and others. This is their zone of
greatest abundance where some level of survival of released fish would
be expected to occur. Therefore, the Council did not feel it was
necessary to close the harvest of co-occurring species in depths less
than 240 ft (73 m). As noted previously, speckled hind and warsaw
grouper share similar biological characteristics to gag. Therefore, if
depth related bycatch is similar to gag, in depths greater than 240 ft
(73 m), release mortality would be expected to be greater than 70
percent. By prohibiting the harvest and possession of co-occurring
species, in addition to prohibiting all harvest and possession of
speckled hind and warsaw grouper, fishing mortality of speckled hind
and warsaw grouper is expected to decrease and protection would be
provided to adult fish with the greatest spawning potential.
Comment 12: One commenter feels the deepwater closure will result
in an effort shift to the black sea bass, gray triggerfish, and
vermilion snapper components of the snapper-grouper fishery, and lead
to more out-of-state fishing by southern vessels in waters off North
Carolina.
Response: Effort shifts resulting from the deepwater closure are
difficult to predict. Negative biological impacts of effort shifts may
be mitigated by ACLs and AMs in Amendment 17B and the Comprehensive ACL
Amendment, which are designed to prevent the ACL from being exceeded or
correct for ACL overages should they occur. However, negative social
and economic effects could result from ACLs being met more quickly due
to effort shifts.
The commercial sector for vermilion snapper is currently managed
under a quota split into two seasons, and this amendment will specify
the same split season for commercial ACLs, as well as specify a
recreational ACL. Additionally, trip limits for vermilion snapper are
being considered by the Council in Regulatory Amendment 9 to the FMP.
Therefore, effort shift into the vermilion snapper portion of the
fishery is unlikely to have negative biological impacts on vermilion
snapper because the commercial harvest and sale of vermilion snapper
would be prohibited when the ACLs are projected to be met.
The Council is developing Amendment 18A to the FMP, which includes
actions to: Limit the number of black sea bass pots allowed per vessel;
limit the number of participants in the black sea bass component of the
snapper-grouper fishery; and require that pots be returned to port at
the completion of a fishing trip. If approved, these controls should
limit effort shift into the black sea bass component of the snapper-
grouper fishery, minimizing the occurrence of black sea bass pot
``ghost fishing'' on snapper-grouper species, as well as interactions
with protected species.
Gray triggerfish are included within the 20 snapper-grouper
aggregate bag limit for the recreational sector, and there is a 12-inch
(30.5-cm) total length size limit in Federal waters off the east coast
of Florida for the commercial and recreational sectors. The
Comprehensive ACL Amendment, currently under development, would
establish an ACL for gray triggerfish. This ACL would be associated
with an AM intended to maintain harvest at or below the specified ACL.
Therefore, if the Comprehensive ACL Amendment is implemented, a
mechanism for controlling harvest of gray triggerfish would be
established and could mitigate effort shifts that may result from
actions contained in Amendment 17B. The deepwater closure could result
in some amount of permanent and/or temporary effort shifting, however,
the number of vessels that may or may not shift effort to other
fisheries in response to the deepwater area closure cannot be
predicted.
Comment 13: One commenter states the Council discussion concerning
warsaw grouper and speckled hind was inadequate considering the scope
of the deepwater closure being implemented through Amendment 17B.
Response: The Council discussed management measures for speckled
hind and warsaw grouper beginning in June 2008. Since that time, the
Council has met seven times and discussed actions in Amendment 17B
before taking final action to approve the amendment. At its December
2010 meeting, the Council requested a regulatory amendment be prepared
to examine new information related to the prohibition on harvest and
possession of the six deepwater snapper-grouper species and evaluate
the new information to determine if the deepwater closure in certain
areas of the South Atlantic is still necessary.
Comment 14: One commenter states that the Amendment 17B cumulative
impacts assessment of the role of the marine protected areas (MPAs)
implemented through Amendment 14 to the FMP is inaccurate, and the
ancillary impacts of the Oculina Experimental Closed Area for speckled
hind and warsaw grouper were not mentioned in Amendment 17B.
Response: The effective date of the eight MPAs implemented through
Amendment 14 to the FMP was February 13, 2009. Because these MPAs have
been in place for a short period of time, little is known about their
potential to positively impact snapper-grouper species beyond the basic
protections afforded to habitats in these MPAs, and subsequent benefits
realized by local fish populations. It is expected that the MPAs may
help, to some extent, to protect a portion of the population (including
spawning aggregations) and habitat of long-lived, slow growing,
deepwater snapper-grouper species (speckled hind, snowy grouper, warsaw
grouper, yellowedge grouper, misty grouper, golden tilefish, and
blueline tilefish) from directed fishing pressure to achieve a more
natural sex ratio, age, and size structure within the MPAs. Because the
snapper-grouper species most affected by the MPAs and the Oculina
closed area are long-lived, quantifiable biological benefits may not be
measureable in the short-term. However, future studies are expected to
analyze the affects of the MPAs and the Oculina closure on snapper-
grouper species. Over time, continued research will provide further
insight on the ecological benefits of conservation areas.
Comment 15: One commenter states that snowy grouper is the main
driver for deepwater snapper-grouper fishing and past regulations to
reduce snowy grouper harvest have not been considered in Amendment 17B
as they relate to effort-reduction in the deepwater portion of the
snapper-grouper fishery.
Response: Effort reductions resulting from previously implemented
snowy grouper regulations were taken into account when analyzing the
biological and socioeconomic impacts of the deepwater closure. As
required under NEPA, Amendment 17B analyzes the impacts of the status
quo alternative for each action, including the action to prohibit the
harvest and possession of six deepwater species beyond 240 ft (73 m).
The baseline condition used in the status quo (no action) analysis for
the action to prohibit the harvest and possession of six deepwater
species beyond 240 ft (73 m) included the snowy grouper harvest
restrictions implemented through Amendment 13C to the FMP. These
restrictions included a recreational bag limit for snowy grouper of one
per person per day, a commercial trip limit of 100 lb (45 kg) gutted
weight, and a reduced commercial quota of 84,000 lb (38,102 kg) gutted
weight. Amendment 15A to the FMP specified an ABC for snowy

[[Page 82285]]

grouper that is consistent with the rebuilding plan for the species.
Comment 16: One commenter is opposed to reducing the recreational
ACL for snowy grouper to 523 fish, and favors allowing existing
regulations to rebuild the stock.
Response: The Magnuson-Stevens Act requires that ACLs and AMs be
specified in 2010 for species undergoing overfishing. The Council chose
to base the ACL for snowy grouper on the current total allowable catch
(TAC). The Council also chose to specify sector ACLs for snowy grouper
rather than one ACL for the commercial and recreational sectors. The
Council determined the recreational sector ACL to be 523 fish, based on
landings data from 2005-2008. Because this ACL is quite small, and
recreational landings data is associated with a high degree of
uncertainty, the AM will compare a 3-year running average of
recreational landings to the recreational ACL. The AMs established for
snowy grouper are intended to maintain harvest levels at or below the
specified ACLs.
Comment 17: One commenter recommended additional inshore seasonal
closures in the Florida Keys area to help rebuild overfished stocks.
Response: The Florida Keys area has an extensive network of marine
sanctuaries, where fishing is limited or prohibited, and there is the
offshore East Hump MPA, which was established in Amendment 14 to the
FMP. The Council has not requested consideration of inshore area
closures in the Florida Keys to address overfishing of the species
addressed in Amendment 17B.
Comment 18: Several commenters state that aggregating the gag,
black grouper, and red grouper ACLs, and the associated AMs is not an
appropriate method for managing these stocks. One commenter emphasizes
the fact that black grouper is no longer considered to be undergoing
overfishing or overfished, further justifying not including it in the
aggregate ACL. One commenter recommended developing a catch share
program for these species in order to ensure all commercial sector
participants are given the opportunity to harvest them.
Response: Amendment 16 established a commercial AM for red grouper
and black grouper through a prohibition on the harvest of all shallow-
water snapper-grouper species that would be effective when the
commercial ACL for gag (a biologically similar species) is projected to
be met each year. Because black grouper and red grouper had not been
recently assessed at the time Amendment 17B was developed, and the
Council was aware that a new stock assessment for both species was
forthcoming, the Council chose to establish an aggregate ACL that
includes gag, red grouper, and black grouper, based on expected catch
resulting from management measures implemented through Amendment 16 to
the FMP.
The red grouper and black grouper Southeast Data, Assessment, and
Review (SEDAR) stock assessment (SEDAR 19) was completed in 2010, after
Amendment 17B had been submitted to NMFS for Secretarial review. The
assessment indicated black grouper is not overfished and is not
undergoing overfishing, and red grouper is overfished and undergoing
overfishing. Therefore, a new FMP amendment is currently under
development to establish a rebuilding plan and assign an individual ACL
and AM for red grouper. The black grouper stock assessment was not
completed until after Amendment 17B was submitted to the Secretary for
review. Black grouper ACLs and AMs have been retained in Amendment 17B,
however, the Council will immediately consider whether adjustments to
ACLs and AMs are needed in light of the new assessment. The
Comprehensive ACL Amendment, which is also under development by the
Council, would consider a new ACL and AM for black grouper, as well as
species groups for many different snapper-grouper species that could
include gag, red grouper, and black grouper.
Comment 19: Several commenters state they have witnessed the
progressive decline in deepwater snapper-grouper species over many
years, and support measures to end overfishing and rebuild deepwater
snapper-grouper stocks.
Response: NMFS agrees that effective management strategies must be
utilized to rebuild stocks that are overfished to sustainable levels
and prevent future overfishing from occurring. Actions have been taken
through previous amendments to address overfishing of black sea bass,
vermilion snapper, gag, red grouper, black grouper, snowy grouper,
speckled hind, warsaw grouper, red snapper, and golden tilefish. It is
the intent of the Council and NMFS to employ a system of ACLs and AMs
to achieve these goals.
Comment 20: One commenter feels the restrictions on vermilion
snapper are too restrictive and have fostered a derby fishery, and
suggests a trip limit be implemented for vermilion snapper. Another
commenter recommended the implementation of a system of trip limits,
also known as the ``Fisherman's Plan,'' as a means of maintaining
harvest levels of vermilion snapper below the specified ACLs.
Response: Regulatory Amendment 9 to the FMP includes an action to
specify trip limits for vermilion snapper. It is the Council's intent
to alleviate the derby nature of the vermilion snapper component of the
snapper-grouper fishery by implementing a trip limit as soon as
possible. Additionally, Amendment 21 to the FMP, which is in the early
stages of the development process, includes an action to establish a
catch share program for vermilion snapper. Establishing a catch share
program would eliminate the derby-style fishery, and would promote
safety at sea.
Comment 21: One commenter feels Amendment 17B would not reduce
harvest enough to end overfishing of the subject stocks, and recommends
reducing all the ACLs contained in Amendment 17B by 66 percent.
Response: The best scientific information available supports the
recently implemented harvest reductions in previous amendments and the
ACLs contained in Amendment 17B. Actions have been taken in previous
amendments to address overfishing of most species addressed in
Amendment 17B. A reduction of the current ACLs by 66 percent is not
supported by the best available scientific information, and could
result in unnecessary adverse socioeconomic impacts on the fishing
community. Therefore additional harvest restrictions beyond those in
Amendment 17B are not necessary to end overfishing of the species
addressed in Amendment 17B as required by the Magnuson-Stevens Act.
Amendment 17B specifies ACLs and AMs for speckled hind, warsaw grouper,
snowy grouper, black sea bass, vermilion snapper, black grouper, red
grouper, gag, and golden tilefish to end overfishing and help ensure
that overfishing does not occur in the future.
Comment 22: One commenter stated the impacts of anthropogenic
pollutants such as sunscreens, pharmaceuticals, and cruise ships could
have an effect on snapper-grouper reproductive fitness.
Response: The direct impacts of anthropogenic toxins introduced
into the marine environment have been studied in recent years, but
their impacts on snapper-grouper species are not quantifiable at this
time. Ongoing research in the field is likely to continue as human
impacts on the environment increase. Several studies show a correlation
between pharmaceutical waste and subsequent lowered reproductive
fitness in marine organisms. The extent to which chemical waste impacts
snapper-

[[Page 82286]]

grouper species in the South Atlantic is unknown, and may be more
difficult to measure in deepwater species, which do not spend the
majority of their live cycles in close proximity to known pollution
sources.
The Environmental Protection Agency (EPA) has participated in
several surveys to assess the impacts of cruise ship discharge of food
waste, gray water, bilge water, and ballast water on the marine
environment, including a survey conducted in August 2001 to estimate
the dilution of cruise ship discharges into receiving waters. Another
survey, conducted in Skagway Harbor, Alaska, in July 2008, estimated
the near-field dilution of treated sewage/gray water discharges from
docked cruise ships. The EPA also prepared a Cruise Ship Discharge
Assessment Report (Assessment Report), which examines waste streams
generated by cruise ships. The report is available at: http://water.epa.gov/polwaste/vwd/cruise_ship_disch_assess_report.cfm.
Despite these and other ongoing studies, the direct impact of cruise
ship waste discharge on snapper-grouper species in the South Atlantic
is not known at this time.
Comment 23: One commenter suggests requiring permits and logbooks
on all vessels in all sectors of the snapper-grouper fishery.
Response: Logbooks and snapper-grouper permits are required for
participants in the commercial snapper-grouper fishery. Permits are
also required for all participants in the for-hire sector of the
snapper-grouper fishery, and logbooks are required on headboats if
selected by NMFS. Amendment 15B, which became effective in December
2009, requires any vessel fishing for snapper-grouper in the South
Atlantic EEZ, if selected by NMFS, to maintain and submit fishing
records; and requires any vessel that fishes in the EEZ, if selected by
NMFS, to carry an observer and install an electronic logbook (ELB) and/
or video monitoring equipment provided by NMFS. The reporting and
record-keeping requirements contained in Amendment 15B only include
selected vessels because these requirements are cost prohibitive if
applied to every fisher in the South Atlantic at this time.
Comment 24: One commenter stated that a prohibition on all longline
fishing would end overfishing of golden tilefish.
Response: Golden tilefish are primarily harvested using bottom
longline gear. Actions were taken in Amendment 13C to end the
overfishing of golden tilefish, which included a reduction in the quota
to 295,000 lb (133,810 kg) gutted weight. Therefore, eliminating the
longline harvest for golden tilefish could have unnecessary negative
economic and social effects. The effectiveness of management measures
in ending overfishing for golden tilefish will be determined in an
assessment scheduled for 2011. Amendment 17B established ACLs and AMs
to help ensure golden tilefish overfishing does not occur.
Currently, for the snapper-grouper fishery, the use of bottom
longline fishing gear is limited by species and area. A vessel that has
on board a valid Federal commercial permit for South Atlantic snapper-
grouper, excluding wreckfish, that fishes in the EEZ on a trip with a
longline on board, may possess only snowy grouper, warsaw grouper,
yellowedge grouper, misty grouper, golden tilefish, blueline tilefish,
and sand tilefish. Additionally, under the FMP, a longline may not be
used to fish in the EEZ for South Atlantic snapper-grouper south of
27[deg]10' N. latitude (due east of the entrance to St. Lucie Inlet,
FL); or north of 27[deg]10' N. latitude where the charted depth is less
than 50 fathoms (91.4 m), as shown on the latest edition of the largest
scale NOAA chart of the location. Under the FMP, a person aboard a
vessel with a longline on board that fishes on a trip in the South
Atlantic EEZ south of 27[deg]10' N. latitude, or north of 27[deg]10' N.
latitude where the charted depth is less than 50 fathoms (91.4 m), is
limited on that trip to the bag limit for South Atlantic snapper-
grouper for which a bag limit is specified, and to zero for all other
South Atlantic snapper-grouper.
Additionally, Amendment 18A to the FMP is addressing potential
effort control mechanisms for the golden tilefish component of the
snapper-grouper fishery, including an endorsement for hook-and-line and
longline gear. Therefore, Amendment 18A may mitigate, to some extent,
any effort shift into the golden tilefish component of the snapper-
grouper fishery.
Comment 25: Three commenters felt the golden tilefish allocation of
97-percent commercial and 3-percent recreational is unfair and
allocates too much of the total ACL to the commercial sector.
Response: The sector allocations for golden tilefish were chosen
based on long-term and short-term landings histories. The preferred
allocation of 97 percent for the commercial sector and 3 percent for
the recreational sector is representative of past and current harvest
levels for both sectors and thus would cause the least disruption to
the economic and social environments. The Council considered an
alternative that would allocate half of the ACL to the commercial
sector and half to the recreational sector, but rejected this
alternative because it would result in the largest deviation from the
short and long-term landings trend for the two sectors. It was
concluded that the preferred allocation is fair and equitable based on
the best scientific information available.
Comment 26: Two commenters suggested that the Federal government
buy out those fishermen who are ready to leave the fishery because of
overly burdensome regulations. One commenter suggested the U.S.
Department of Commerce develop a fisheries disaster assistance program
for commercial and for-hire fishermen affected by recently implemented
regulations.
Response: The Council discussed the establishment of a buy-out
program for commercial snapper-grouper fishermen in Georgia during the
development process for Amendment 17A to the FMP, which was drafted
concurrently with Amendment 17B. A buy-out program for the commercial
sector would require a great deal of planning, time, funds, and
acceptance from fishery participants. Because of these limiting factors
and the need to end overfishing immediately as required by the
Magnuson-Stevens Act, a buy-out program was not pursued by the Council
or NMFS during the development of Amendment 17B.
The Magnuson-Stevens Act states the Secretary may establish a
regional economic transition program to provide immediate disaster
relief assistance upon the request and concurrence with the Governors
of the affected States. Neither the Secretary nor NMFS has received a
request from any of the four affected States' governors for disaster
relief. Therefore, a disaster relief program for the snapper-grouper
fishery has not been considered.
Comment 27: Several commenters feel the economic impact analysis
for actions contained in Amendment 17B is either absent or inadequately
represents the true impacts expected from the implementation of
Amendment 17B.
Response: Amendment 17B contains a complete economic impact
analysis of all actions and alternatives considered by the Council in
Amendment 17B. Additionally, Amendment 17B contains a social impact
analysis of all the alternatives considered by the Council.
Furthermore, in compliance with Magnuson-Stevens Act, Amendment 17B
contains a Regulatory Impact Review, an initial Regulatory Flexibility
Analysis, a Fishery Impact Statement,

[[Page 82287]]

and a Social Impact Assessment. These economic and social analyses
utilize recent landings, trip ticket, logbook, permit, and financial
data for the commercial and recreational sectors. As such, the subject
analyses have been determined to represent an accurate and complete
economic picture of potential impacts that may result from the
implementation of Amendment 17B.
Comment 28: Three commenters feel Amendment 17B contained several
deficiencies, including: the absence of overfishing limits (OFLs) for
six species, the absence of ABCs for five species, the lack of an ABC
control rule, failing to account for management uncertainty in the
ACLs, and failing to include discard mortality in the ACLs (most
notably for speckled hind and warsaw grouper). One commenter states
that Amendment 17B establishes ACLs and management measures that are
unlikely to end overfishing for golden tilefish, black sea bass, and
snowy grouper. Additionally, one commenter states that Amendment 17B
should include an ACL performance standard, and re-evaluation of the
ACLs and AMs that would be triggered if the catch exceeds the ACL more
often than once in a given period of time.
Response:
OFL: The Magnuson-Stevens Act National Standard 1 Guidelines give
the Councils flexibility to use either the maximum fishing mortality
threshold (MFMT) or the overfishing limit (OFL) to determine if
overfishing is occurring. The National Standard 1 Guidelines state,
``The OFL is an annual level of catch that corresponds directly to the
MFMT, and is the best estimate of the catch level above which
overfishing is occurring.'' Furthermore, in June 2008, the SSC stated
that for species assessed through SEDAR, OFL is equal to the yield at
MFMT. Golden tilefish, snowy grouper, black sea bass, vermilion
snapper, red grouper, and black grouper have been assessed through
SEDAR and, therefore, have estimates of MFMT. The numerical estimates
of MFMT for black grouper and red grouper will be provided in the
Comprehensive ACL Amendment and Amendment 24, respectively.
The SSC was unable to provide recommendations of the OFL for
speckled hind and warsaw grouper at its June 2008 meeting, based on
current data, and, therefore, specified OFL as ``unknown.'' The SSC
encountered similar problems when attempting to specify OFLs for
species at its April 2010 meeting. Discussion at the April 2010 meeting
focused on what the SSC was responsible for providing to the Council
under National Standard 1 Guidelines. To explain its reasoning and
judgment, the April 2010 SSC report states, ``It became clear that
recommending an ABC was the main goal, and providing this recommended
value without an estimate of OFL was acceptable in situations where
only catch series data were available.''
ABC: At its December 2008 meeting, the SSC considered the guidance
given in the proposed Magnuson-Stevens Act National Standard 1
Guidelines and rescinded all estimates of ABC from its June 2008
meeting (except for an ABC of zero for speckled hind and warsaw grouper
based on landed catch). At its December 2008 meeting, the SSC also
recommended that the ABC levels for snowy grouper, black sea bass, and
red snapper be set consistent with the rebuilding plans for those
species until they can be further amended using more updated scientific
information. The SSC reaffirmed, at its April 2010 meeting, that ``For
overfished stocks and stock complexes, a rebuilding ABC must be set to
reflect the annual catch that is consistent with the schedule of
fishing mortality rates in the rebuilding plan.'' At its June 2009
meeting, the SSC recommended ABCs for gag and vermilion snapper based
on a P* analysis, which is being used as the Council's preferred ABC
control rule for assessed species that are not experiencing overfishing
in the Comprehensive ACL Amendment.
The SSC did not provide an ABC value for golden tilefish because of
the age of the assessment and because of the lack of a current estimate
of abundance. Golden tilefish will be assessed by SEDAR in 2011. The
ABC control rule being used in the Comprehensive ACL Amendment will be
applied to golden tilefish to obtain an ABC value when the assessment
and amendment are completed in 2011. The SSC did not provide an ABC
value for black grouper and red grouper because assessments were
ongoing for those species when Amendment 17B was being developed by the
Council, and since the SEDAR assessments have now been completed, OFLs,
ABCs, and ACLs will be specified in the Comprehensive ACL Amendment and
Amendment 24 for black grouper and red grouper, respectively.
ABC Control Rule: For overfished stocks and stock complexes, the
SSC has indicated that the ABC must be set to reflect the annual catch
that is consistent with the schedule of fishing mortality rates in the
rebuilding plan. Amendment 17B did not specify ABC control rules for
assessed species that were not overfished or for data poor species
because these control rules were under development by the SSC. The SSC
met in March and June of 2009 to determine ABC control rules for data
rich species, and met in April and August of 2010 to identify the
protocol for determining the ABC for data poor species. A final version
of the SSC's recommendation of an ABC control rule for assessed species
was provided to the Council at its March 2010 meeting, after the
Council had voted to submit Amendment 17B for Secretarial review. The
SSC has not completed its recommendations for ABC control rules for
non-assessed species. ABC control rules for assessed and data poor
species will be included in the Comprehensive ACL Amendment.
The SSC recommended and the Council chose an ACL of zero for
speckled hind and warsaw grouper based on landings only. Choosing an
ACL based on total mortality rather than landed catch would require the
SEFSC to monitor discarded speckled hind and warsaw grouper in the
commercial and recreational sectors. The Council's SSC expressed
concerns about monitoring discards when discussing ACLs for speckled
hind and warsaw grouper at its March 2009 meeting. The SSC was not only
concerned about the accuracy of discard data as currently collected
from the recreational and commercial sector but also the possibility
that some members of the fishing community might under-report discarded
fish if they believed further restrictions might be imposed if levels
of dead discards became elevated. Therefore, due to concern about
monitoring discards, the SSC recommended an acceptable biological catch
equal to zero for speckled hind and warsaw grouper based on landed
catch only.
Management Measures: Action is being taken in Amendment 17B to
reduce discards of speckled hind and warsaw grouper by prohibiting the
take of co-occurring species in depths greater than 240 ft (73 m).
Rather than retain and monitor speckled hind and warsaw grouper
discards, the intent of the area closure is to reduce bycatch in an
area where release mortality is expected to be very high. The
relationship between depth and mortality has not been specified for
speckled hind and warsaw grouper. However, as previously discussed,
speckled hind and warsaw grouper share similar biological
characteristics to gag; therefore, if depth related release mortality
of speckled hind and warsaw grouper is similar to gag, release
mortality would be expected to be approximately 70 percent in depths of
240 ft (73 m).
Actions were taken to end overfishing of golden tilefish, snowy
grouper, and black sea bass in Amendment 13C to the

[[Page 82288]]

FMP. It will not be known if the measures were successful in ending
overfishing until new assessments are conducted for these species. New
benchmark assessments will be conducted for golden tilefish and black
sea bass in 2011, and snowy grouper will be assessed in 2013. Amendment
17B specifies ACLs and AMs for speckled hind, warsaw grouper, snowy
grouper, gag, vermilion snapper, black sea bass, golden tilefish, black
grouper, and red grouper, to ensure overfishing of these species does
not occur.
The National Standard 1 Guidelines states that ``if catch exceeds
the ACL for a given stock or stock complex more than once in the last 4
years, the system of ACLs and AMs should be re-evaluated, and modified
if necessary, to improve its performance and effectiveness.'' Amendment
17B follows this guidance for performance measures with an action to
update the framework procedure to allow for adjustments to OFL, ABC,
and ACL based on SEDAR reports or other new information. Under the
updated framework procedure, the SSC would examine the social and
economic impact analyses for a specific allocation, ACL, ACT, AM,
quota, bag limit, or other fishing restriction. If it is determined by
the Council and its SSC that the management measures in place are not
constraining catch to a target level, adjustments could be made through
a future regulatory amendment.
Comment 29: One commenter stated Amendment 17B does not adequately
demonstrate that speckled hind and warsaw grouper are undergoing
overfishing.
Response: According to the most recent Report to Congress on the
Status of U.S. Fisheries, warsaw grouper and speckled hind are
undergoing overfishing and have been identified as experiencing
overfishing every year since the Report was initiated in 1997. Status
determinations in the Report to Congress on the Status of U.S. Stocks
are generally made during a formal review of a scientific stock
assessment using the best available scientific information and status
determination criteria specified in a fishery management plan. However,
many resources can be used to make status determinations, including
final peer-reviewed documents such as Stock Assessment Review Committee
reports and recommendations of each Council's Scientific and
Statistical Committee. The Council and NMFS are mandated to end
overfishing by the Reauthorized Magnuson-Stevens Act, and to specify
ACLs and AMs for species undergoing overfishing and to implement
management measures to ensure overfishing does not continue to occur.
New SEDAR benchmark assessments for speckled hind and warsaw grouper
are scheduled for 2012 or 2013.
Comment 30: Three commenters felt the Finding of No Significant
Impact (FONSI) for Amendment 17B erroneously concluded that there are
no significant impacts as a result of this amendment. One commenter
requests that an environmental impact statement (EIS) be prepared for
Amendment 17B.
Response: An environmental assessment (EA) was conducted for
Amendment 17B, instead of an EIS, because most of the ACLs and AMs
implemented through this final rule are based on previously implemented
quotas and allocations, and the deepwater closure was concluded to
result in a low to moderate level of socioeconomic impact to the
snapper-grouper fishery. The deepwater closure is expected to primarily
affect commercial fishermen who target blueline tilefish off North
Carolina, and commercial and recreational fishermen in areas of the
Florida Keys where the 240-ft (73-m) depth boundary is close to shore.
The significance of an action under NEPA is determined by
considering the action's context and intensity. In the case of the
deepwater area closure, the impacts are not considered significant
because select groups of snapper-grouper fishery participants are
expected to be impacted, and those impacts are anticipated to be low to
moderate relative to the entire snapper-grouper fishery. For the entire
South Atlantic, the prohibition on harvest and possession of six
deepwater snapper-grouper species beyond a depth of 240 ft (73 m) is
expected to reduce annual overall net operating revenues in the
commercial snapper-grouper fishery by about $292,000, or by 3.3
percent. For the State of North Carolina alone, the action is expected
to reduce net operating revenue in the commercial sector by
approximately 7 percent. As such, the FONSI appropriately concludes the
actions in Amendment 17B are not expected to result in significant
impacts on the human environment; and therefore, an EIS was not
prepared.
Comment 31: Several commenters stated that the amendment would have
severe economic impacts on commercial and recreational fishing
opportunities and operations, including their support industries and
local communities. Many comments especially singled out the ban on
fishing for, retaining, and possessing of six deepwater species in
waters beyond 240 ft (73 m) deep as a major factor that would put many
people out of work.
Response: The economic analysis of the actions and alternatives
considered concluded that, with the exception of the no action
alternatives, practically all management measure alternatives would
result in restricted fishing opportunities and short-term adverse
economic effects on fishers, support industries, and associated
communities. However, it is imperative that we take some action to
protect species undergoing overfishing. The actions adopted are
expected to be those which best achieve the Council's objectives while
minimizing, to the extent practicable, the adverse economic and social
effects on fishing participants and associated communities.
Comment 32: One commenter stated that no consideration was made of
potential differences in economic impacts based on differences in
fishing practices and economic activities along the coast.
Response: The economic analysis evaluated the effects of the
various measures in Amendment 17B on vessels by gear type used and
geographic area in the South Atlantic. Thus, the analysis addressed, to
the extent possible using available data, the differential economic
effects of the alternatives based on gear type and geographic location.
Comment 33: One commenter stated that once the Council and NMFS
decided what the economic impacts are, public comments would not count
at all.
Response: The Council and NMFS have taken multiple steps to solicit
comments from the public through meetings, public hearings, and
dissemination of written materials on the various issues considered in
the amendment. The law, as well as the policies of the Council and
NMFS, requires consideration of public comments as an integral part of
the regulatory process even after the economic analysis is completed.
However, economic impacts are not the only factor the Council and NMFS
must take into account.
Comment 34: Two commenters noted that the 97 percent commercial and
3 percent recreational allocation of golden tilefish neglects the
contribution of the recreational sector into the local economy.
Response: The commercial/recreational allocation for golden
tilefish took into account the past and present landing records of both
the commercial and recreational sectors. The economic effects of the
various allocation measures were evaluated independently and in
conjunction with the other alternatives in the amendment.

[[Page 82289]]

The economic analysis concluded that the allocation ratio was not
expected to introduce severe dislocations of commercial and
recreational fishing activities.
Comment 35: One commenter mentioned the lack of analysis of the
cumulative economic impacts of the amendment.
Response: The economic analysis evaluated the cumulative effects of
past and present regulatory measures affecting the snapper-grouper
recreational and commercial sectors. Both quantitative and qualitative
discussions of cumulative economic effects were presented.
Comment 36: One commenter remarked that serious attention to
socioeconomic aspects of fisheries management is grossly overlooked as
real science.
Response: NMFS has always recognized the important role of social
science in fisheries management, as specifically required by the
Magnuson-Stevens Act, Regulatory Flexibility Act, and Executive Order
12866. Although the overriding objective of Amendment 17B has been to
protect or rebuild the subject snapper-grouper species, the
socioeconomic effects of the various alternatives were evaluated and
considered in the choice of preferred alternatives.

Classification

The Regional Administrator, Southeast Region, NMFS has determined
that Amendment 17B is necessary for the conservation and management of
South Atlantic snapper-grouper and is consistent with the Magnuson-
Stevens Act, and other applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared a FRFA, as required by section 604 of the Regulatory
Flexibility Act. The FRFA describes the economic impact this final rule
is expected to 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 this
analysis is available from the NMFS (see ADDRESSES). The FRFA follows.
No public comments specific to the IRFA were received. However, 22
of the 175 comments contained statements regarding the economic effects
of the amendment, and they are addressed in comments/responses section,
specifically comments/responses number 31 through 36.
NMFS agrees with the Council's choice of preferred alternatives as
those which would be expected to best achieve the Council's objectives
while minimizing, to the extent practicable, the adverse effects on
fishers, support industries, and associated communities.
No changes to the proposed rule were made in response to public
comments.
The final rule introduces several changes to the management of the
South Atlantic snapper-grouper fishery. This rule establishes an ACL of
zero for speckled hind and warsaw grouper, and this prohibits the
harvest and possession of speckled hind and warsaw grouper. The rule
prohibits fishing for and possession of snowy grouper, blueline
tilefish, yellowedge grouper, warsaw grouper, speckled hind, misty
grouper, queen snapper, and silk snapper beyond a depth of 240 ft (73
m).
This rule establishes a 97-percent commercial and 3-percent
recreational allocation of golden tilefish. This rule establishes a
commercial ACL (quota) for golden tilefish of 282,819 lb (128,284 kg)
gutted weight and a recreational ACL of 1,578 fish based on the chosen
allocation for golden tilefish. The commercial AM for golden tilefish
prohibits the harvest, possession, purchase, and sale of golden
tilefish after the quota is met or projected to be met. The
recreational AM is specified as follows: If the ACL is exceeded, the
Regional Administrator (RA) shall publish a notice to reduce the length
of the following fishing season by the amount necessary to ensure
landings do not exceed the sector ACL in the following fishing year.
The recreational ACL would be compared to recreational landings using
only 2010 landings for 2010, an average of 2010 and 2011 landings for
2011, and a 3-year average of landings for 2012 and beyond.
This rule establishes a recreational daily bag limit of one snowy
grouper per vessel, with a recreational ACL of 523 fish and a
recreational AM specified as follows: If the ACL is exceeded, the RA
shall publish a notice to reduce the length of the following fishing
season by the amount necessary to ensure landings do not exceed the
sector ACL in the following fishing year. The recreational ACL would be
compared to recreational landings using only 2010 landings for 2010, an
average of 2010 and 2011 landings for 2011, and a 3-year average of
landings for 2012 and beyond.
This rule establishes an aggregate ACL (quota) for gag, black
grouper, and red grouper of 662,403 lb (300,461 kg) gutted weight
(commercial) and 648,663 lb (294,229 kg) gutted weight (recreational),
but retains the commercial ACL (quota) for gag or 352,940 lb (160,091
kg) gutted weight and recreational ACL for gag of 340,060 lb (154,249
kg) gutted weight. This rule prohibits the commercial possession of
shallow-water groupers (gag, black grouper, red grouper, scamp, red
hind, yellowmouth grouper, tiger grouper, yellowfin grouper, graysby,
and coney) when the gag ACL (currently at 352,940 lb (160,091 kg)
gutted weight) or the aggregate gag, black grouper, and red grouper ACL
is met or projected to be met. This rule implements recreational AMs
for black grouper, black sea bass, gag, red grouper, and vermilion
snapper as follows: If a species is overfished and the sector ACL is
met or projected to be met, prohibit the harvest and retention of the
species or species group. If the ACL is exceeded, independent of stock
status, the RA shall publish a notice to reduce the sector ACL in the
following fishing season by the amount of the overage. The recreational
ACL would be compared to recreational landings using only 2010 landings
for 2010, an average of 2010 and 2011 landings for 2011, and a 3-year
running average of landings for 2012 and beyond.
Finally, this rule updates the framework procedure for
specification of Total Allowable Catch (TAC) for the FMP to incorporate
ACLs, ACTs, and AMs. Such modifications are based upon new scientific
information indicating such modifications are prudent.
The Magnuson-Stevens Act provides the statutory basis for the final
rule.
No duplicative, overlapping, or conflicting Federal rules have been
identified. The final rule does not alter existing reporting,
recordkeeping, or other compliance requirements.
The final rule is expected to directly affect commercial fishers
and for-hire operators. The SBA has established size criteria for all
major industry sectors in the U.S. including commercial fish harvesters
and for-hire operations. A business involved in fish harvesting is
classified as a small business if it is independently owned and
operated, is not dominant in its field of operation (including its
affiliates), and has combined annual receipts not in excess of $4.0
million (NAICS code 114111, finfish fishing) for all its affiliated
operations worldwide. For for-hire vessels, the other qualifiers apply
and the annual receipts threshold is $7.0 million (NAICS code 713990,
recreational industries).
From 2003-2007, an average of 944 vessels per year was permitted to
operate in the commercial sector of the snapper-grouper fishery. Of
these vessels, 749 held transferable permits and 195 held non-
transferable permits.

[[Page 82290]]

As of December 17, 2010, there are 604 vessels with transferable
permits and 138 vessels with non-transferable permits. On average, 890
vessels landed 6.43 million lb (2.92 million kg) of snapper-grouper
species and 1.95 million lb (0.88 million kg) of other species on
snapper-grouper trips. Total dockside revenues from snapper-grouper
species stood at $13.81 million and at $2.30 million from other
species. Considering revenues from both snapper-grouper and other
species, the revenues per vessel were approximately $18,101. An average
of 27 vessels per year harvested more than 50,000 lb (22,680 million
kg) of snapper-grouper species per year, generating dockside revenues
of at least $107,500, at an average price of $2.15 (2007 dollars) per
pound. Commercial vessels that operate in the snapper-grouper fishery
may also operate in other fisheries, the revenues of which cannot be
determined with available data and are not reflected in these totals.
Although a vessel that possesses a commercial snapper-grouper
permit can harvest any snapper-grouper species, not all permitted
vessels or vessels that landed snapper-grouper landed all of the major
species in this amendment. The following average number of vessels
landed the subject species in 2003-2007: 292 vessels landed gag, 253
vessels landed vermilion snapper, 32 vessels landed speckled hind, 64
vessels landed golden tilefish, 160 vessels landed snowy grouper, 323
vessels landed black grouper, 237 vessels landed black sea bass, and
402 vessels landed red grouper. Combining revenues from snapper-grouper
and other species on the same trip, the average revenue per vessel for
vessels landing the subject species were $20,551 for gag, $28,454 for
vermilion snapper, $6,250 for speckled hind, $17,266 for golden
tilefish, $7,186 for black grouper, $19,034 for black sea bass, and
$17,164 for red grouper.
Based on revenue information, all commercial vessels that would be
affected by the final action are considered to be small entities.
For the period 2003-2007, an average of 1,635 vessels were
permitted to operate in the snapper-grouper for-hire sector, of which
82 are estimated to have operated as headboats and 1,553 as charter
boats. As of December 17, 2010, there are 1,474 permitted for-hire
vessels. The for-hire fleet is comprised of charterboats, which charge
a fee on a vessel basis, and headboats, which charge a fee on an
individual angler (head) basis. Within the total number of vessels, 227
also possessed a commercial snapper-grouper permit and would be
included in the summary information provided on the commercial sector.
The charterboat annual average gross revenue is estimated to range from
approximately $62,000-$84,000 for Florida vessels, $73,000-$89,000 for
North Carolina vessels, $68,000-$83,000 for Georgia vessels, and
$32,000-$39,000 for South Carolina vessels. For headboats, the
appropriate estimates are $170,000-$362,000 for Florida vessels, and
$149,000-$317,000 for vessels in the other States.
Based on average revenue figures, all for-hire operations that
would be affected by the final action are considered to be small
entities.
Some fleet activity (i.e., multiple vessels owned by a single
entity) may exist in both the commercial and for-hire snapper-grouper
sectors, but the extent of such is unknown and all vessels are treated
as independent entities in this analysis.
The measure to establish an ACL of zero for speckled hind and
warsaw grouper, together with the ban on fishing for deepwater species
co-occurring with these two species beyond 240 ft (73 m), is expected
to reduce net operating revenues of commercial vessels by about
$292,000. This measure is also expected to reduce net operating
revenues of for-hire vessels by less than $102,000.
Establishing a 97 percent commercial and 3 percent recreational
allocation of golden tilefish would maintain the long-term and short-
term proportional landings history of the commercial and recreational
sectors, with possible small short-term changes (depending on the ACL)
in net operating revenues of both commercial and for-hire vessels. At
this allocation ratio, the corresponding commercial ACL (quota) would
be 282,819 lb (128,284 kg) gutted weight and the recreational
allocation would be 1,578 fish (8,747 lb (3,968 kg) gutted weight). The
golden tilefish commercial quota in combination with the AM of closing
the fishery after the quota is met is expected to reduce net operating
revenues of vessels with snapper-grouper commercial permits by about
$8,000. The recreational allocation is expected to result in net
revenue reductions of for-hire snapper-grouper vessels by about $7,000.
It is worth noting, however, that the reduction in net operating
revenues of for-hire vessels is not immediate because the recreational
AM would shorten only the subsequent year's fishing season and only
when recreational landings over a number of years (except for 2010)
exceed the ACL.
Establishing a daily bag limit of one snowy grouper per vessel is
expected to reduce net operating revenues of for-hire snapper-grouper
vessels by about $7,000. This reduction in net operating revenues would
not be immediate because the recreational AM would shorten only the
subsequent year's fishing season and only when recreational landings
over a number of years (except for 2010) exceed the ACL.
The combined measures of retaining the commercial ACL for gag of
352,940 lb (160,091 kg) gutted weight, to establish an aggregate
commercial ACL for gag, red grouper, and black grouper of 662,403 lb
(300,461 kg) gutted weight, and to close the fishery when the gag ACL
or the aggregate ACL is reached is expected to reduce net operating
revenues of commercial vessels by about $103,000. For the recreational
component of the snapper-grouper fishery, the combined measures of
retaining the recreational ACL for gag of 340,060 lb (154,249 kg)
gutted weight and establishing an aggregate recreational ACL for gag,
red grouper, and black grouper of 648,663 lb (294,229 kg) gutted weight
are not expected to affect the net operating revenues of for-hire
snapper-grouper vessels because these are the expected landings from
implementation of previous amendments, notably Amendment 16 to the FMP.
There is a possibility that the recreational AM of prohibiting the
harvest and retention of an overfished species when the sector ACL is
met or projected to be met would have negative impacts on for-hire
snapper-grouper vessels fishing for black sea bass. Under this AM, for-
hire snapper-grouper vessels as a whole could potentially lose about
$860,000 in net revenues. This reduction is likely to be an
overestimate for at least two reasons. First, the method used in
estimating the economic effects on the recreational sector likely
overestimated the number of headboat angler trips affected by the
measure. Second, the trend of recreational black sea bass landings has
been downward due to the implementation of more restrictive measures
provided in previous amendments. Therefore, using average landings over
the period 2005-2008 inflated the landings when compared to the ACL.
Updating the framework procedure for specification of TAC has no
direct effects on the net operating revenues of commercial and for-hire
snapper-grouper vessels.
Five alternatives, including the final action, were considered for
establishing an ACL for speckled hind and warsaw grouper. The first
alternative to the final

[[Page 82291]]

action, the no action alternative, would not conform to the
requirements of the Magnuson-Stevens Act, as reauthorized in 2006, to
establish an ACL for the subject species. The second alternative to the
final action would establish an ACL of zero for speckled hind and
warsaw grouper but would not close any areas to fishing for deepwater
species that co-occur with these two species. Although this alternative
would have smaller negative economic effects on small entities than the
final action, it would not be sufficient to end overfishing of speckled
hind and warsaw grouper due to discard mortality from fishing for other
co-occurring deepwater species. The third alternative to the final
action is the same as the final action, except that the fishing
prohibition for other co-occurring deepwater species would apply to all
depths. In this case, this alternative would result in greater negative
economic effects on small entities than the final action. The fourth
alternative to the final action is similar to the final action, except
that the prohibition on fishing for other co-occurring deepwater
species would be beyond 300 ft (92 m). With smaller closed areas, this
alternative would result in slightly smaller negative economic effects
on small entities. On the other hand, the protection this alternative
provides for adult speckled hind and warsaw grouper would be less than
that of the final action. The possibility of continued overfishing for
the subject species may still occur under this alternative.
Four alternatives, including the final action, were considered for
the golden tilefish allocation. The first alternative to the final
action, the no action alternative, would not establish a commercial and
recreational allocation for golden tilefish. Without a defined sector
allocation, it would be difficult to define sector ACLs and to take
corrective actions should the sector ACLs or overall ACL be exceeded.
This would weaken the ability of fishery managers to effectively manage
the stock. The second alternative to the final action would establish a
96-percent commercial and 4-percent recreational allocation. This
allocation is very close to that provided under the final action, and
thus its economic effects would only minimally differ from those of the
final action. This alternative uses only the most current landings
records (2006-2008) while the final action uses both the long-run
(1986-2008) and short-run (2006-2008) landings history. The third
alternative to the final action would establish a 50-percent commercial
and 50-percent recreational allocation. This alternative would create
significant disruptions to the commercial sector operations, and thus
would impose relatively large costs to this sector. The recreational
sector would stand to gain from this allocation, but whether or not the
gains to the recreational sector would outweigh losses to the
commercial sector cannot be determined. At least in the short-term and
given the current bag limit of one fish per person per day, benefits to
the recreational sector would be relatively small and would not
compensate for the losses in the commercial sector. Thus, the expected
net economic effects of this alternative in the short-term would be
negative.
Five alternatives, including the final action, were considered for
the golden tilefish ACL and AM. The first alternative to the final
action, the no action alternative, would retain the current ACL (quota)
for the commercial sector based on FMSY and would not
establish an ACL for the recreational sector. The current AM would
close all fishing for golden tilefish once the commercial quota is
reached. This alternative would not add any more fishery restrictions
and economic losses to the fishery participants, but it would be less
conservative than the final action in rebuilding the stock as to
potentially lengthen the recovery of the stock beyond the specified
rebuilding period. In addition, it would provide less flexibility in
implementing sector-specific AMs. The second alternative to the final
action would establish a single commercial and recreational ACL which
would combine the commercial ACL at the FOY level and the
recreational allowable harvest at the OY level. The AM would prohibit
commercial and recreational harvest when the ACL is projected to be
met. This alternative would result in approximately the same economic
losses to the commercial sector as the final action. There is some
potential for this alternative to result in smaller economic losses to
the recreational sector than the final action, especially if only the
commercial landings were effectively monitored because then the
recreational fishing season would remain open longer. But to the extent
that the AM under this alternative would be imposed in-season while
that of the final action would become effective only in subsequent
years, the economic effects of this alternative over time could very
well exceed those of the final action. The third alternative to the
final action would establish a recreational AM of one golden tilefish
per vessel per day when the single ACL (sum of the commercial ACL at
the FOY level and recreational harvest at the OY level) is
met or projected to be met. This alternative offers potential for
smaller economic losses to the recreational sector than the final
action by maintaining a year-round recreational fishing season although
at a very limited bag limit. However, because this alternative requires
an in-season adjustment in lieu of subsequent-year adjustments, as
under the final action, the resulting economic losses over time due to
this alternative could exceed those of the final action. The fourth
alternative to the final action would establish a commercial and
recreational ACL based on the yield at FOY for the
commercial fishery. The AM for both sectors would be to prohibit
harvest, possession, and retention of golden tilefish when commercial
landings exceed the ACL. This alternative would have the same economic
effects on the commercial sector as the final action, but losses to the
recreational sector would likely exceed those of the final action.
Four alternatives, including the final action, were considered for
establishing a snowy grouper ACL and AM. The first alternative, the no
action alternative, to the final action would retain the commercial ACL
(quota) of 82,900 lb (37,603 kg) gutted weight as the ACL based on the
current TAC of 87,254 lb (39,578 kg) gutted weight; would retain the
commercial AM which is to prohibit harvest, possession, and retention
of snowy grouper when the quota is met or projected to be met; would
maintain the recreational ACL of 523 fish; and, would not implement a
recreational AM. This alternative would not add any restrictions to
either the commercial or recreational sector. The absence of an AM for
the recreational sector would make it difficult to implement sector-
specific adjustments. The second alternative to the final action would
establish a single commercial/recreational ACL based on the current TAC
of 87,254 lb (39,578 kg) gutted weight, and the AM for both sectors
would be a closure of the fishery when the ACL is met or projected to
be met. This alternative may result in slightly better economic effects
on the commercial sector than the final action or the no action
alternative, but this slight advantage of the commercial sector would
come at the expense of the recreational sector. In effect, this
alternative would have slightly larger short-term economic losses on
the recreational sector than the final action. In addition, this
alternative would not

[[Page 82292]]

allow for sector-specific adjustments should ACL overages occur. The
third alternative to the final action would establish a recreational AM
of one fish per vessel per day when the commercial quota is met or
projected to be met. The commercial AM would be a fishery closure when
the quota is met. This alternative would have similar economic effects
for the commercial sector as the no action alternative and slightly
lower short-term negative effects on the recreational sector than the
final action. However, unlike the final action, this alternative could
result in overages in the recreational sector without a possible
compensating adjustment in succeeding years, thereby potentially
resulting in less protection to the stock.
Five alternatives, two of which comprise the final action, were
considered for the black grouper, black sea bass, gag, red grouper, and
vermilion snapper ACL, AM, and ACT. The alternative for establishing
commercial and recreational ACLs consisted of two sub-alternatives, one
of which is the final action. The ACT alternative for the recreational
sector consisted of three sub-alternatives, none of which were selected
as the final action. The AM alternative for the recreational sector
consisted of three sub-alternatives, one of which is the final action.
The first alternative to the final action, the no action alternative,
would retain the commercial and recreational ACLs (quotas) for black
sea bass, gag, and vermilion snapper and would not establish commercial
and recreational ACLs for black grouper and red grouper. This
alternative would not comply with the requirements of the Magnuson-
Stevens Act, as reauthorized in 2006. The second alternative to the
final action for commercial and recreational ACLs would establish black
grouper commercial and recreational ACLs of 86,886 lb (39,411 kg)
gutted weight and 31,863 lb (14,453 kg) gutted weight, respectively. It
would also establish red grouper commercial and recreational ACLs of
221,577 lb (100,505 kg) gutted weight and 276,740 lb (125,527 kg)
gutted weight, respectively. This alternative would have similar
biological effects as the final action. However, it could result in
slightly worse economic effects as the final action because it would
allow less flexibility for small entities in adjusting their fishing
operations with respect to gag, black grouper, and red grouper. The
third alternative to the final action for the recreational AM consisted
of two sub-alternatives. The first sub-alternative would require the RA
to reduce the length of the following fishing year if the ACL were
exceeded in the current year. Although this alternative would provide
less negative effects in the short-term, it would provide less
biological benefits than the final action, particularly with respect to
overfished species, so as to delay further the generation of economic
benefits from the fishery. The second sub-alternative would close the
fishery if the sector ACT were exceeded for an overfished species or
species group and would require the RA to reduce the sector ACT the
following year. By not selecting any ACT, this alternative would not be
a viable alternative. If ACTs were selected, this alternative would
likely result in larger short-term economic losses than the final
alternative.
Two alternatives, including the final action, were considered for
updating the framework procedure for specification of TAC in the FMP to
incorporate ACLs, ACTs, and AMs. The only alternative to the final
action, the no action alternative, would delay the implementation or
modification of ACLs, ACTs, and AMs when new scientific information
becomes available because this would require the FMP amendment process
which would incur more administrative costs than the final action.

List of Subjects in 50 CFR Part 622

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

Dated: December 22, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.

0
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

0
1. The authority citation for part 622 continues to read as follows:

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

0
2. In Sec. 622.2, the definitions of ``Deep-water grouper (DWG)'' and
``Shallow-water grouper (SWG)'' are revised and definitions of ``Deep-
water snapper-grouper (DWSG)'' and ``South Atlantic shallow-water
grouper (SASWG)'' are added in alphabetical order to read as follows:

Sec. 622.2 Definitions and acronyms.

* * * * *
Deep-water grouper (DWG) means, in the Gulf, yellowedge grouper,
misty grouper, warsaw grouper, snowy grouper, and speckled hind. In
addition, for the purposes of the IFQ program for Gulf groupers and
tilefishes in Sec. 622.20, scamp are also included as DWG as specified
in Sec. 622.20(b)(2)(vi).
Deep-water snapper-grouper (DWSG) means, in the South Atlantic,
yellowedge grouper, misty grouper, warsaw grouper, snowy grouper,
speckled hind, blueline tilefish, queen snapper, and silk snapper.
* * * * *
Shallow-water grouper (SWG) means, in the Gulf, gag, red grouper,
black grouper, scamp, yellowfin grouper, rock hind, red hind, and
yellowmouth grouper. In addition, for the purposes of the IFQ program
for Gulf groupers and tilefishes in Sec. 622.20, speckled hind and
warsaw grouper are also included as SWG as specified in Sec.
622.20(b)(2)(v).
* * * * *
South Atlantic shallow-water grouper (SASWG) means, in the South
Atlantic, gag, black grouper, red grouper, scamp, red hind, rock hind,
yellowmouth grouper, tiger grouper, yellowfin grouper, graysby, and
coney.
* * * * *

0
3. In Sec. 622.4, the first sentence of paragraph (a)(2)(vi) is
revised to read as follows:

Sec. 622.4 Permits and fees.

(a) * * *
(2) * * *
(vi) * * * For a person aboard a vessel to be eligible for
exemption from the bag limits for South Atlantic snapper-grouper in or
from the South Atlantic EEZ, to sell South Atlantic snapper-grouper in
or from the South Atlantic EEZ, to engage in the directed fishery for
tilefish in the South Atlantic EEZ, to use a longline to fish for South
Atlantic snapper-grouper in the South Atlantic EEZ, or to use a sea
bass pot in the South Atlantic EEZ between 35[deg]15.19' N. lat. (due
east of Cape Hatteras Light, NC) and 28[deg]35.1' N. lat. (due east of
the NASA Vehicle Assembly Building, Cape Canaveral, FL), a commercial
vessel permit for South Atlantic snapper-grouper must have been issued
to the vessel and must be on board. * * *
* * * * *

0
4. In Sec. 622.9, the first sentence of paragraph (a)(1) is revised to
read as follows:

Sec. 622.9 Vessel monitoring systems (VMSs).

(a) * * *
(1) * * * An owner or operator of a vessel that has been issued a
limited

[[Page 82293]]

access endorsement for South Atlantic rock shrimp (until January 27,
2010) or a Commercial Vessel Permit for Rock Shrimp (South Atlantic
EEZ) must ensure that such vessel has an operating VMS approved by NMFS
for use in the South Atlantic rock shrimp fishery on board when on a
trip in the South Atlantic. * * *
* * * * *

0
5. In Sec. 622.32, paragraph (c)(3) is removed and paragraph
(b)(3)(vii) is added to read as follows:

Sec. 622.32 Prohibited and limited-harvest species.

* * * * *
(b) * * *
(3) * * *
(vii) Speckled hind and warsaw grouper may not be harvested or
possessed in or from the South Atlantic EEZ. Such fish caught in the
South Atlantic EEZ must be released immediately with a minimum of harm.
These restrictions also apply in the South Atlantic on board a vessel
for which a valid Federal commercial or charter vessel/headboat permit
for South Atlantic snapper-grouper has been issued, i.e., in State or
Federal waters.
* * * * *

0
6. In Sec. 622.35, the first sentence of paragraph (j) is revised and
paragraph (o) is added to read as follows:

Sec. 622.35 Atlantic EEZ seasonal and/or area closures.

* * * * *
(j) * * * During January through April each year, no person may
fish for, harvest, or possess in or from the South Atlantic EEZ any
SASWG (gag, black grouper, red grouper, scamp, red hind, rock hind,
yellowmouth grouper, tiger grouper, yellowfin grouper, graysby, and
coney). * * *
* * * * *
(o) Depth closure for deep-water snapper-grouper (DWSG). No person
may fish for or possess DWSG (yellowedge grouper, misty grouper, warsaw
grouper, snowy grouper, speckled hind, blueline tilefish, queen
snapper, and silk snapper) in or from the South Atlantic EEZ offshore
of rhumb lines connecting, in order, the following points:

------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A....................................... 36[deg]31'01'' 74[deg]48'10''
B....................................... 35[deg]57'29'' 74[deg]55'49''
C....................................... 35[deg]30'49'' 74[deg]49'17''
D....................................... 34[deg]19'41'' 76[deg]00'21''
E....................................... 33[deg]13'31'' 77[deg]17'50''
F....................................... 33[deg]05'13'' 77[deg]49'24''
G....................................... 32[deg]24'03'' 78[deg]57'03''
H....................................... 31[deg]39'04'' 79[deg]38'46''
I....................................... 30[deg]27'33'' 80[deg]11'39''
J....................................... 29[deg]53'21'' 80[deg]16'01''
K....................................... 29[deg]24'03'' 80[deg]16'01''
L....................................... 28[deg]19'29'' 80[deg]00'27''
M....................................... 27[deg]32'05'' 79[deg]58'49''
N....................................... 26[deg]52'45'' 79[deg]58'49''
O....................................... 26[deg]03'36'' 80[deg]04'33''
P....................................... 25[deg]31'03'' 80[deg]04'55''
Q....................................... 25[deg]13'44'' 80[deg]09'40''
R....................................... 24[deg]59'09'' 80[deg]19'51''
S....................................... 24[deg]42'06'' 80[deg]46'38''
T....................................... 24[deg]33'53'' 81[deg]10'23''
U....................................... 24[deg]25'20'' 81[deg]50'25''
V....................................... 24[deg]25'49'' 82[deg]11'17''
W....................................... 24[deg]21'35'' 82[deg]22'32''
X....................................... 24[deg]21'29'' 82[deg]42'33''
Y....................................... 24[deg]25'37'' 83[deg]00'00''
------------------------------------------------------------------------

0
7. In Sec. 622.39, paragraph (d)(1)(ii)(B) is revised to read as
follows:

Sec. 622.39 Bag and possession limits.

* * * * *
(d) * * *
(1) * * *
(ii) * * *
(B) No more than one fish per vessel may be a snowy grouper;
* * * * *

0
8. In Sec. 622.42, paragraph (e)(1)(ii) is removed; paragraphs (e)(1),
(e)(2), (e)(5), and (e)(6) are revised; and paragraph (e)(8) is added
to read as follows:

Sec. 622.42 Quotas.

* * * * *
(e) * * *
(1) Snowy grouper--82,900 lb (37,603 kg).
(2) Golden tilefish--282,819 lb (128,284 kg).
* * * * *
(5) Black sea bass--309,000 lb (140,160 kg).
(6) Red porgy--190,050 lb (86,205 kg).
* * * * *
(8) Gag, black grouper, and red grouper, combined--662,403 lb
(300,461 kg).
* * * * *

0
9. In Sec. 622.43, the heading for paragraph (a)(5) and paragraph
(a)(5)(iii) are revised to read as follows:

Sec. 622.43 Closures.

(a) * * *
(5) South Atlantic gag, black grouper, red grouper, greater
amberjack, snowy grouper, golden tilefish, vermilion snapper, black sea
bass, and red porgy.
* * * * *
(iii) For gag and for gag, black grouper, and red grouper,
combined, when the appropriate commercial quota is reached, the
provisions of paragraphs (a)(5)(i) and (ii) of this section apply to
gag and all other SASWG.
* * * * *

0
10. In Sec. 622.44, paragraph (c)(3) is revised to read as follows:

Sec. 622.44 Commercial trip limits.

* * * * *
(c) * * *
(3) Snowy grouper. Until the quota specified in Sec. 622.42(e)(1)
is reached--100 lb (45 kg). See Sec. 622.43(a)(5) for the limitations
regarding snowy grouper after the fishing year quota is reached.
* * * * *

0
11. In Sec. 622.48, paragraph (f) is revised to read as follows:

Sec. 622.48 Adjustment of management measures.

* * * * *
(f) South Atlantic snapper-grouper and wreckfish. Biomass levels,
age-structured analyses, target dates for rebuilding overfished
species, MSY, ABC, TAC, quotas, annual catch limits (ACLs), target
catch levels, accountability measures (AMs), trip limits, bag limits,
minimum sizes, gear restrictions (ranging from regulation to complete
prohibition), seasonal or area closures, definitions of essential fish
habitat, essential fish habitat, essential fish habitat HAPCs or Coral
HAPCs, and restrictions on gear and fishing activities applicable in
essential fish habitat and essential fish habitat HAPCs.
* * * * *

0
12. In Sec. 622.49, paragraph (b) is added to read as follows:

Sec. 622.49 Accountability measures.

* * * * *
(b) South Atlantic snapper-grouper. (1) Golden tilefish--(i)
Commercial fishery. If commercial landings, as estimated by the SRD,
reach or are projected to reach the quota specified in Sec.
622.42(e)(2), the AA will file a notification with the Office of the
Federal Register to close the commercial fishery for the remainder of
the fishing year.
(ii) Recreational fishery. If recreational landings, as estimated
by the SRD, exceed the recreational annual catch limit (ACL) of 1,578
fish, the AA will file a notification with the Office of the Federal
Register, at or near the beginning of the following fishing year, to
reduce the length of the following recreational fishing season by the
amount necessary to ensure recreational landings do not exceed the
recreational ACL in the following fishing year. Recreational landings
will be evaluated relative to the ACL as follows. For 2010, only 2010
recreational landings will be compared to the ACL; in 2011, the average
of 2010 and 2011 recreational landings will be compared to the ACL; and
in 2012 and subsequent fishing

[[Page 82294]]

years, the most recent 3-year running average recreational landings
will be compared to the ACL.
(2) Snowy grouper--(i) Commercial fishery. If commercial landings,
as estimated by the SRD, reach or are projected to reach the quota
specified in Sec. 622.42(e)(1), the AA will file a notification with
the Office of the Federal Register to close the commercial fishery for
the remainder of the fishing year.
(ii) Recreational fishery. If recreational landings, as estimated
by the SRD, exceed the recreational ACL of 523 fish, the AA will file a
notification with the Office of the Federal Register, at or near the
beginning of the following fishing year, to reduce the length of the
following recreational fishing season by the amount necessary to ensure
recreational landings do not exceed the recreational ACL in the
following fishing year. Recreational landings will be evaluated
relative to the ACL as follows. For 2010, only 2010 recreational
landings will be compared to the ACL; in 2011, the average of 2010 and
2011 recreational landings will be compared to the ACL; and in 2012 and
subsequent fishing years, the most recent 3-year running average
recreational landings will be compared to the ACL.
(3) Gag--(i) Commercial fishery. If commercial landings, as
estimated by the SRD, reach or are projected to reach the quota
specified in Sec. 622.42(e)(7), the AA will file a notification with
the Office of the Federal Register to close the commercial fishery for
gag and all other SASWG for the remainder of the fishing year.
(ii) Recreational fishery. (A) If recreational landings, as
estimated by the SRD, reach or are projected to reach the recreational
ACL of 340,060 lb (154,249 kg), gutted weight, and gag are overfished,
based on the most recent Status of U.S. Fisheries Report to Congress,
the AA will file a notification with the Office of the Federal Register
to close the gag recreational fishery for the remainder of the fishing
year. On and after the effective date of such notification, the bag and
possession limit for gag in or from the South Atlantic EEZ is zero.
This bag and possession limit also applies in the South Atlantic on
board a vessel for which a valid Federal charter vessel/headboat permit
for South Atlantic snapper-grouper has been issued, without regard to
where such species were harvested, i.e., in State or Federal waters.
(B) Without regard to overfished status, if gag recreational
landings exceed the ACL, the AA will file a notification with the
Office of the Federal Register, at or near the beginning of the
following fishing year, to reduce the ACL for that fishing year by the
amount of the overage.
(C) Recreational landings will be evaluated relative to the ACL as
follows. For 2010, only 2010 recreational landings will be compared to
the ACL; in 2011, the average of 2010 and 2011 recreational landings
will be compared to the ACL; and in 2012 and subsequent fishing years,
the most recent 3-year running average recreational landings will be
compared to the ACL.
(4) Gag, black grouper, and red grouper, combined--(i) Commercial
fishery. If commercial landings, as estimated by the SRD, reach or are
projected to reach the quota specified in Sec. 622.42(e)(8), the AA
will file a notification with the Office of the Federal Register to
close the commercial fishery for gag, black grouper, red grouper and
all other SASWG for the remainder of the fishing year.
(ii) Recreational fishery. (A) If recreational landings, as
estimated by the SRD, reach or are projected to reach the combined
recreational ACL of 648,663 lb (294,229 kg), gutted weight, and gag,
black grouper, or red grouper are overfished, based on the most recent
Status of U.S. Fisheries Report to Congress, the AA will file a
notification with the Office of the Federal Register to close the
recreational fishery for gag, black grouper, and red grouper for the
remainder of the fishing year. On and after the effective date of such
notification, the bag and possession limit of gag, black grouper, and
red grouper in or from the South Atlantic EEZ is zero. This bag and
possession limit also applies in the South Atlantic on board a vessel
for which a valid Federal charter vessel/headboat permit for South
Atlantic snapper-grouper has been issued, without regard to where such
species were harvested, i.e., in State or Federal waters.
(B) Without regard to overfished status, if gag, black grouper, and
red grouper recreational landings exceed the combined ACL, the AA will
file a notification with the Office of the Federal Register, at or near
the beginning of the following fishing year, to reduce the combined ACL
for that fishing year by the amount of the overage.
(C) Recreational landings will be evaluated relative to the ACL as
follows. For 2010, only 2010 recreational landings will be compared to
the ACL; in 2011, the average of 2010 and 2011 recreational landings
will be compared to the ACL; and in 2012 and subsequent fishing years,
the most recent 3-year running average recreational landings will be
compared to the ACL.
(5) Black sea bass--(i) Commercial fishery. If commercial landings,
as estimated by the SRD, reach or are projected to reach the quota
specified in Sec. 622.42(e)(5), the AA will file a notification with
the Office of the Federal Register to close the commercial fishery for
the remainder of the fishing year.
(ii) Recreational fishery. (A) If recreational landings, as
estimated by the SRD, reach or are projected to reach the recreational
ACL of 409,000 lb (185,519 kg), gutted weight, and black sea bass are
overfished, based on the most recent Status of U.S. Fisheries Report to
Congress, the AA will file a notification with the Office of the
Federal Register to close the recreational fishery for black sea bass
for the remainder of the fishing year. On and after the effective date
of such notification, the bag and possession limit of black sea bass in
or from the South Atlantic EEZ is zero. This bag and possession limit
also applies in the South Atlantic on board a vessel for which a valid
Federal charter vessel/headboat permit for South Atlantic snapper-
grouper has been issued, without regard to where such species were
harvested, i.e., in State or Federal waters.
(B) Without regard to overfished status, if black sea bass
recreational landings exceed the ACL, the AA will file a notification
with the Office of the Federal Register, at or near the beginning of
the following fishing year, to reduce the ACL for that fishing year by
the amount of the overage.
(C) Recreational landings will be evaluated relative to the ACL as
follows. For 2010, only 2010 recreational landings will be compared to
the ACL; in 2011, the average of 2010 and 2011 recreational landings
will be compared to the ACL; and in 2012 and subsequent fishing years,
the most recent 3-year running average recreational landings will be
compared to the ACL.
(6) Vermilion snapper--(i) Commercial fishery. If commercial
landings, as estimated by the SRD, reach or are projected to reach a
quota specified in Sec. 622.42(e)(4)(i) or (ii), the AA will file a
notification with the Office of the Federal Register to close the
commercial fishery for that portion of the fishing year applicable to
the respective quota.
(ii) Recreational fishery. (A) If recreational landings, as
estimated by the SRD, reach or are projected to reach the recreational
ACL of 307,315 lb (139,396 kg), gutted weight, and vermilion snapper
are overfished, based

[[Page 82295]]

on the most recent Status of U.S. Fisheries Report to Congress, the AA
will file a notification with the Office of the Federal Register to
close the recreational fishery for vermilion snapper for the remainder
of the fishing year. On and after the effective date of such
notification, the bag and possession limit of vermilion snapper in or
from the South Atlantic EEZ is zero. This bag and possession limit also
applies in the South Atlantic on board a vessel for which a valid
Federal charter vessel/headboat permit for South Atlantic snapper-
grouper has been issued, without regard to where such species were
harvested, i.e., in State or Federal waters.
(B) Without regard to overfished status, if vermilion snapper
recreational landings exceed the ACL, the AA will file a notification
with the Office of the Federal Register, at or near the beginning of
the following fishing year, to reduce the ACL for that fishing year by
the amount of the overage.
(C) Recreational landings will be evaluated relative to the ACL as
follows. For 2010, only 2010 recreational landings will be compared to
the ACL; in 2011, the average of 2010 and 2011 recreational landings
will be compared to the ACL; and in 2012 and subsequent fishing years,
the most recent 3-year running average recreational landings will be
compared to the ACL.

[FR Doc. 2010-32831 Filed 12-29-10; 8:45 am]
BILLING CODE 3510-22-P