Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Fishery Management Plans of the Gulf of Mexico; Addition to FMP Framework Provisions; Stone Crab Gear Requirements

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement those provisions of the Generic Sustainable Fisheries Act Amendment to the Fishery Management Plans (FMPs) of the Gulf of Mexico (SFA Amendment) that modify the framework regulatory adjustment procedures in the FMPs for reef fish, red drum, and coastal migratory pelagics. These FMP framework modifications allow timely addition of various stock population parameters to the appropriate FMP(s), including biomass-based estimates of minimum stock size thresholds (MSSTs), optimum yield (OY), maximum sustainable yield (MSY), stock biomass achieved by fishing at MSY (B_MSY), and maximum fishing mortality thresholds (MFMTs). These regulations also revise the stone crab trap construction requirements, as proposed by the SFA Amendment. The intended effects are to provide a more timely mechanism for incorporating stock population parameters into the applicable FMPs when such information becomes available and to establish stone crab trap construction regulations that are compatible with those of the State of Florida and that will reduce finfish bycatch.

DATES:

This final rule is effective June 19, 2000.

FOR FURTHER INFORMATION CONTACT:

Roy Crabtree, telephone: 727-570-5305, fax: 727-570-5583, e-mail: Roy.Crabtree@noaa.gov.

SUPPLEMENTARY INFORMATION:

The SFA Amendment addresses fisheries under the FMPs for coral and coral reef resources, coastal migratory pelagics, red drum, reef fish, shrimp, spiny lobster, and stone crab. The FMPs were prepared by the Gulf of Mexico Fishery Management Council (Council), except for the FMPs for coastal migratory pelagics and spiny lobster that were prepared jointly by the South Atlantic and Gulf of Mexico Fishery Management Councils. All of these FMPs, except the spiny lobster and stone crab FMPs, are implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. The Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic is implemented by regulations at 50 CFR part 640; the Fishery Management Plan for the Stone Crab Fishery of the Gulf of Mexico is implemented by regulations at 50 CFR part 654.

On August 18, 1999, NMFS announced the availability of the SFA Amendment and requested comments on it (64 FR 44884). On November 2, 1999, NMFS published a proposed rule to implement those provisions of the SFA Amendment that required rulemaking (i.e., the modifications of the framework procedures of the applicable FMPs and the changes to the stone crab trap construction requirements) and requested comments on the proposed rule (64 FR 59153). The background and rationale for the measures in the SFA Amendment and proposed rule are contained in the preamble to the proposed rule and are not repeated here.

On November 17, 1999, after considering the comments received, NMFS partially approved the SFA Amendment. NMFS approved the portions of the amendment dealing with descriptions of the fisheries and fishing communities, the spawning potential ratio (SPR) proxies submitted for the MFMTs (except for red snapper), the MSSTs for shrimp, and the proposed changes in the construction characteristics of stone crab traps. NMFS disapproved the portion of the amendment dealing with bycatch reporting, because the Council has not fulfilled the Magnuson-Stevens Act requirement to develop standardized reporting to assess the amount and type of bycatch. NMFS also disapproved the portion of the amendment dealing with bycatch reduction, except for the measure for the construction of stone crab traps. This disapproval was based on national standard 9, because the Council has not fulfilled the Magnuson-Stevens Act mandate to reduce bycatch to the extent practicable and has not adequately explained why additional measures to reduce bycatch are not practicable. NMFS disapproved the following actions regarding overfishing targets and thresholds. All of the SPRs submitted as proxies for MSY, OY, and the MSST were disapproved based on national standards 1 and 2 because they are not consistent with the best available scientific information and do not provide an adequate basis for achieving OY on a continuing basis. The targets and thresholds proposed for shrimp are biomass-based; however, the proxies for MSY and OY were disapproved and must be revised to reflect the yields associated with the various biomass proxies proposed. The MFMT (referred to as an “overfishing threshold”) for royal red shrimp was disapproved based on national standards 1 and 2 because no fishing mortality rate is explicitly specified; therefore, no objective basis was provided for determining whether overfishing is occurring. NMFS disapproved the rebuilding schedules for king mackerel and red snapper based on national standards 1 and 2. The rebuilding targets specified are fishing mortality based (static SPR) rather than biomass-based as required by the Magnuson-Stevens Act and the national standard guidelines. NMFS recently provided the information needed to develop new rebuilding plans to the Council. The static SPR targets would not allow an adequate determination of the management measures required to rebuild these stocks to a biomass capable of producing MSY because static SPR is not sensitive to population size and reflects only current levels of fishing mortality. The Council did not propose rebuilding schedules for red drum, Nassau grouper, or jewfish. Additional rationale for NMFS' approvals and disapprovals of the various components of the SFA Amendment are provided in the Comments and Responses Section.

Those measures that were disapproved were not contained in the proposed rule; therefore, no changes to the proposed rule resulted from the disapprovals. No comments were received on the proposed rule, and the proposed rule has been adopted as final without change. NMFS received 11 comments on the SFA Amendment. They are summarized below:

Comments and Responses

Comment 1: Two environmental groups recommended that NMFS disapprove the environmental assessment (EA) included in the amendment. They commented that the EA failed to adequately analyze the direct, indirect, and cumulative environmental impacts of the proposed actions and reasonable alternatives that would minimize adverse impacts.

Response: NMFS disagrees. NMFS has determined that no significant impact on the human environment will result from the approved measures. The proposed action, in the context of the fishery as a whole, will not have an adverse impact on the environment. The description of the affected environment for the fisheries under the jurisdiction of the Gulf of Mexico Fisheries Management Council is discussed in the Generic Amendment for Addressing Essential Fish Habitat. The only specific regulatory action that would affect fish stocks or the environment is the adoption of the construction characteristics of stone crab traps set forth in Chapter 46-13.002(2)(a) of Florida law. This measure is intended to reduce bycatch in the stone crab fishery and is not expected to have any adverse effects on the environment. The remaining measures proposed in the SFA Amendment address bycatch, overfishing definitions, and rebuilding schedules; however, the amendment proposes no regulatory actions that directly affect allocations or would be expected to substantially alter existing fishing practices in a way that would be detrimental to the environment. In addition, section 13.0 of the EA incorporates by reference sections of the amendment containing a description of the expected environmental consequences of each of the proposed alternatives considered. Additional environmental analyses and determinations will be made as future regulatory measures are implemented to achieve the goals of the SFA Amendment.

Comment 2: Five groups objected to the provisions of the amendment regarding reporting and minimization of bycatch. All commented that additional reporting requirements were needed to fully describe bycatch and that additional measures were required to reduce bycatch.

Response: NMFS agrees that additional bycatch reporting measures are required. NMFS has disapproved the portion of the amendment dealing with bycatch reporting. The Council has not fulfilled the Magnuson-Stevens Act requirement to develop standardized reporting to assess the amount and type of bycatch. The Council has taken steps to improve bycatch reporting, such as the cooperative state-Federal program under development by the Gulf States Marine Fisheries Commission, but this program is not yet fully implemented. Furthermore, NMFS is developing a bycatch reporting requirement in future and current logbooks that will be implemented on January 1, 2001. The Council proposed no new measures to improve bycatch reporting in its SFA Amendment; however, the Council is currently developing options to address bycatch problems in the shrimp fishery. These options include requiring bycatch reduction devices (BRDs) in the eastern Gulf, permits, logbooks, and observer programs.

NMFS agrees that the SFA amendment does not fulfill the Magnuson-Stevens Act mandate to reduce bycatch to the extent practicable. The Council has not adequately explained why additional measures to reduce bycatch are not practicable. NMFS has disapproved the portion of the amendment dealing with bycatch reduction except the modifications in the construction of stone crab traps. NMFS has requested that the Council take more aggressive action throughout the Gulf to reduce shrimp trawl bycatch. Such action could include extending the requirement for BRDs into Federal waters east of Cape San Blas, Florida, effort reduction in the fishery, closed areas, or seasonal closures. NMFS has approved the proposed changes in the construction characteristics of stone crab traps intended to reduce bycatch in that fishery.

Comment 3: Three environmental groups recommended disapproval of the proposed rebuilding plans for overfished species on the basis that the plans were either incomplete or proposed no specific description of how stocks are to be rebuilt. Some recommended that interim goals were needed within the proposed rebuilding period to ensure that rebuilding was occurring on schedule.

Response: NMFS has disapproved the rebuilding schedules for king mackerel and red snapper based on national standards 1 and 2 because they specified fishing mortality-based rebuilding targets rather than biomass-based targets, and because the time to rebuild in the absence of fishing mortality was not estimated based on rebuilding to biomass at MSY, as required by the Magnuson-Stevens Act and the national standard guidelines. Therefore, they are not based on the best available scientific information and provide no adequate basis for preventing overfishing and rebuilding stocks. Furthermore, the 26-percent spawning potential ratio (SPR) level specified as a proxy for red snapper is unlikely to reflect the fishing mortality rate at MSY according to the 1999 report of the Reef Fish Stock Assessment Panel. The Council did not propose rebuilding schedules for red drum, Nassau grouper, or jewfish. NMFS has recently provided the Council with information needed to revise rebuilding plans and requested that the Council submit the revisions through framework procedures as soon as possible. NMFS agrees that interim goals within an extended rebuilding period would be a valuable and precautionary way to ensure that a stock is rebuilding as planned; however, such goals are not explicitly required by the guidelines.

Comment 4: Four environmental groups commented on the fishery management targets and thresholds proposed and specifically on the lack of any specification of the minimum stock size threshold (MSST). Some groups suggested that an interim SPR proxy be established for the MSST until biomass-based estimates are available.

Response: NMFS has disapproved the SPRs submitted as proxies for MSY, OY, and MSST based on national standards 1 and 2. The Council must provide biomass-based estimates of MSY, OY, and MSST that are consistent with the Magnuson-Stevens Act and the national standard guidelines rather than proxies based on fishing mortality, which is not based on the best available scientific information and would not provide an adequate measure for determining whether OY can be achieved on a continuing basis. The SPR proxies submitted for MFMT were approved with the exception of red snapper, which was disapproved based on national standards 1 and 2 because the 26-percent SPR level specified is unlikely to reflect the fishing mortality rate at MSY, according to the 1999 report of the Reef Fish Stock Assessment Panel. The MFMT for royal red shrimp was also disapproved because no fishing mortality rate is explicitly specified. Static SPR is an acceptable proxy for the MFMT; however, SPR is not biomass-based and is not an acceptable proxy for MSST. Transitional SPR can be a useful measure of the extent to which past fishing mortality has distorted the age structure of a stock, but it is not sensitive to population size or biomass and, thus, is not an acceptable proxy for MSST.

Comment 5: Two charter-boat groups commented on the need for increased bycatch reduction in the shrimp fishery. They stated that BRDs have not reduced bycatch sufficiently and that a bycatch quota is needed in the shrimp fishery.

Response: NMFS agrees that additional bycatch reduction is required in the Gulf shrimp fishery. NMFS has disapproved the portion of the amendment dealing with bycatch reduction. The Council has not fulfilled the Magnuson-Stevens Act mandate to reduce bycatch to the extent practicable and has not adequately explained why additional measures to reduce bycatch are not practicable. NMFS has encouraged the Council to take more aggressive action throughout the Gulf to reduce shrimp trawl bycatch. NMFS has also notified the Council that additional measures to monitor bycatch in the shrimp fishery are needed. The Council is currently developing options to address bycatch problems in the shrimp fishery. These options include BRDs in the eastern Gulf, permits, logbooks, and observer programs. The Council has not previously considered bycatch quotas in the shrimp fishery; however, this idea may merit future consideration.

Comment 6: Three charter-boat groups commented that the overfishing thresholds for finfish were too conservative and should be disapproved. They specifically objected to the proposed thresholds for red snapper, jewfish, and Nassau grouper. They stated that MSY should be established on an individual basis.

Response: NMFS agrees that MSY thresholds should be established on an individual species basis. NMFS disagrees that the proposed overfishing thresholds are overly conservative. The proposed SPR levels are consistent with a large body of published scientific literature regarding appropriate threshold levels to prevent recruitment overfishing. NMFS has disapproved the SPRs submitted as proxies for MSY, OY, and MSST based on national standards 1 and 2, because they are based on fishing mortality and are not consistent with the best available scientific information and are not adequate criteria for determining whether OY can be achieved on a continuing basis. The Council must provide species-specific, biomass-based estimates of MSY, OY, and MSST that are consistent with the Magnuson-Stevens Act and the national standard guidelines.

Comment 7: One environmental group commented that the MFMT level should be set lower than MSY.

Response: NMFS disagrees. Both MSY and MFMT are limit thresholds. MSY is a biomass-based yield and MFMT is a fishing mortality rate, and, therefore, the two thresholds are not strictly comparable. NMFS' technical guidance recommends that MFMT be specified as the fishing mortality rate associated with MSY (F_MSY). The SFA amendment specified fishing-mortality-rate proxies (i.e., SPR) for MSY for most species. Thus, the amendment specifies MSY equal to MFMT for most stocks. The use of an SPR proxy is appropriate for MFMT but not for MSY, and NMFS has disapproved the SPR proxies submitted for MSY. Static SPR is an acceptable proxy for the MFMT; however, SPR is not biomass-based and is not indicative of any particular stock size or yield. Transitional SPR can be a useful measure of the extent to which past fishing mortality has distorted the age structure of a stock, but it is not sensitive to population size or biomass and, thus, is not an acceptable proxy for MSY. The Council must provide species-specific, biomass-based estimates of MSY and MSST in addition to the fishing-mortality-based proxies provided.

Comment 8: Two environmental groups commented that additional measures are required to reduce bycatch in the reef fish fishery. These groups specifically raised concerns regarding bycatch of Nassau grouper and jewfish and requested that NMFS evaluate the level of bycatch of these two species.

Response: The Marine Recreational Fisheries Statistics Survey monitored bycatch in the reef fish recreational fishery. NMFS agrees that additional measures to reduce bycatch and better bycatch reporting measures in the commercial fishery are required. NMFS has disapproved the portions of the amendment dealing with reducing bycatch and bycatch reporting. The Council has taken steps to improve bycatch reporting, such as the cooperative state-Federal program under development by the Gulf States Marine Fisheries Commission, but this program is not yet fully implemented. Furthermore, NMFS is developing a bycatch reporting requirement in future and current logbooks that will be implemented on January 1, 2001. NMFS intends to continue to evaluate the effect of bycatch on the recovery of overfished reef fish stocks and to encourage the Council to take additional steps to reduce bycatch and increase the survival rates of fish caught and released in the reef fish fishery as needed. Thus, the Council has made progress towards improved bycatch monitoring in the Gulf, but several of the measures are still in development. The Council is also considering the need for mandatory observers to monitor bycatch in Gulf fisheries.

NMFS intends to continue to evaluate the effect of bycatch on the recovery of overfished reef fish stocks and to encourage the Council to take additional steps to reduce bycatch and increase the survival rates of fish caught and released in the reef fish fishery as needed. NMFS recently published a NOAA Technical Report assessing the status of Nassau grouper and jewfish. NMFS is currently monitoring numbers of jewfish and Nassau grouper caught and released in the recreational fishery.

Comment 9: One commercial industry group commented that the proposed red snapper overfishing targets and thresholds were far too conservative.

Response: NMFS disapproved the proposed red snapper overfishing targets and thresholds but disagrees with the assertion that the proposed thresholds are overly conservative. The proxies proposed for red snapper overfishing targets and thresholds are consistent with previous recommendations of the reef fish stock assessment panels that were available to the Council at the time the SFA amendment was prepared. NMFS disapproved the overfishing thresholds and the rebuilding period proposed for red snapper because (1) the rebuilding target specified is fishing-mortality-based (26-percent SPR) rather than biomass-based, (2) the 26-percent SPR level specified as a proxy for MSY is unlikely to reflect the fishing mortality rate at MSY, according to the 1999 report of the Reef Fish Stock Assessment Panel, and (3) the time to rebuild in the absence of fishing mortality was not estimated based on rebuilding to biomass at MSY, as required by the Magnuson-Stevens Act and the national standard guidelines. The Council must provide additional biomass-based estimates of MSY and MSST, in addition to the fishing-mortality-based proxies provided, that address the recommendations of the Stock Assessment Panel and are consistent with the Magnuson-Stevens Act and the national standard guidelines. Biomass-based targets and thresholds were included in the 1999 red snapper stock assessment and have been reviewed by the Reef Fish Stock Assessment Panel, but not yet by the Council.

Comment 10: One commercial industry group commented that the Gulf shrimp fishery has already minimized bycatch to the extent practicable. They argued that BRDs do not reduce bycatch mortality effectively and should not be required.

Response: NMFS disagrees. Current estimates of the effectiveness of BRDs suggest that a reduction in red snapper mortality of approximately 40 percent has been achieved and that greater reductions in 2000 are likely to result from changes in the design of acceptable BRDs, and from improvements in industry's ability to use BRDs effectively as experience is gained. The 1999 Reef Fish Stock Assessment Panel also concluded that red snapper bycatch was reduced about 40 percent in 1999. BRD performance improved in 1999, in part, because NMFS no longer allows the BRD configuration in which the elephant ear flap obstructs the opening of the BRD.

The Council is currently developing options to address bycatch problems in the shrimp fishery. These options include BRDs in the eastern Gulf, permits, logbooks, and observer programs. NMFS believes that BRDs have significantly reduced shrimp trawl bycatch in the western Gulf but that additional reductions are needed. NMFS has disapproved the portion of the amendment dealing with bycatch reduction based on national standard 9, except that portion addressing the modifications in stone crab trap construction. The Council has made progress towards reducing bycatch in the Gulf shrimp fishery by requiring BRDs in the western Gulf, but the Council has not adequately explained why additional measures to reduce bycatch are not practicable. Thus, it is not clear that the Council has fulfilled the Magnuson-Stevens Act's mandate to reduce bycatch to the extent practicable. Bycatch in the shrimp fishery has a substantial effect on many finfish stocks, including red snapper. NMFS has encouraged the Council to take more aggressive action throughout the Gulf to reduce shrimp trawl bycatch. Such action could include extending the requirement for BRDs into Federal waters east of Cape San Blas, Florida, effort reduction in the fishery, closed areas, or seasonal closures. NMFS believes that these actions may be practicable and could reduce bycatch substantially. NMFS has also notified the Council that additional measures to monitor bycatch in the shrimp fishery are needed.

Comment 11: Two environmental groups commented that more conservative fishery management targets and thresholds are needed for hermaphroditic species (species that change sex) such as groupers.

Response: NMFS agrees that a precautionary approach to the management of hermaphroditic species is appropriate. Hermaphroditic species may respond differently to fishing mortality than typical non-hermaphroditic species do, and, in some situations, hermaphrodites that change sex from female to male may be more sensitive to overfishing than non-hermaphrodites. The SFA amendment proposes more conservative targets and thresholds for grouper than those currently approved. NMFS has approved the SPR proxies proposed for MFMT for hermaphroditic groupers but has disapproved the SPR proxies proposed for MSY, OY, and MSST for hermaphroditic groupers based on national standards 1 and 2, because they are based on fishing mortality, are not consistent with the best available scientific information, and are not adequate criteria for determining whether OY can be achieved on a continuing basis. The Council must provide biomass-based estimates of MSY, OY, and MSST; the estimates must be consistent with the national standard guidelines in addition to the fishing-mortality-based proxies provided by the Council. The Reef Fish Stock Assessment Panel will review these biomass-based estimates and evaluate their appropriateness for promoting sustainable fisheries for hermaphroditic species.

Classification

The Regional Administrator, Southeast Region, NMFS, with the concurrence of the Assistant Administrator for Fisheries, NOAA, determined that the approved measures of the SFA Amendment are necessary for the conservation and management of the fisheries of the Gulf of Mexico and that, with the exception of the provisions that were disapproved, the SFA Amendment is consistent with the Magnuson-Stevens Act and other applicable law.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not prepared.

List of Subjects

50 CFR Part 622

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

50 CFR Part 654

• Fisheries
• Fishing

For the reasons set out in the preamble, 50 CFR parts 622 and 654 are amended as follows:

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

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

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

2. In § 622.48, paragraphs (c) and (d) are revised, and paragraph (j) is added to read as follows:

PART 654—STONE CRAB FISHERY OF THE GULF OF MEXICO

3. The authority citation for part 654 continues to read as follows:

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

4. In § 654.22, paragraph (a) is revised to read as follows: