Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery off the Southern Atlantic States; Amendment 15A, 14942-14945 [E8-5655]
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Federal Register / Vol. 73, No. 55 / Thursday, March 20, 2008 / Rules and Regulations
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[FR Doc. E8–5690 Filed 3–19–08; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
RIN 0648–AU29
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; SnapperGrouper Fishery off the Southern
Atlantic States; Amendment 15A
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of agency action.
AGENCY:
SUMMARY: NMFS announces approval of
Amendment 15A to the Fishery
Management Plan for the SnapperGrouper Fishery of the South Atlantic
Region (FMP). Amendment 15A updates
management reference points for snowy
grouper, black sea bass, and red porgy
based on the most recent stock
assessments; modifies rebuilding
schedules for snowy grouper and black
sea bass; defines rebuilding strategies
for snowy grouper, black sea bass, and
red porgy; and redefines the minimum
stock size threshold for the snowy
grouper stock. The measures contained
in the subject amendment are intended
to both comply with the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act) and satisfy a U.S. district court’s
rulings to establish rebuilding plans for
South Atlantic snowy grouper and black
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sea bass and approve, amend or reject
Amendment 15A by March 14, 2008.
DATES: NMFS approved Amendment
15A, without modification, on March
14, 2008.
FOR FURTHER INFORMATION CONTACT: John
McGovern, telephone: 727–824–5305;
fax: 727–824–5308; e-mail:
John.McGovern@noaa.gov.
SUPPLEMENTARY INFORMATION: The South
Atlantic snapper-grouper fishery is
managed under the FMP. The FMP was
prepared by the South Atlantic Fishery
Management Council (Council) and
implemented by NMFS under the
authority of the Magnuson-Stevens Act
by regulations at 50 CFR part 622.
On December 28, 2007, NMFS
published a notice of availability of
Amendment 15A and requested public
comment (72 FR 73747). After
considering the public comments
received, NMFS approved Amendment
15A, without modification, on March
14, 2008. The background rationale for
the measures in Amendment 15A are
contained in the amendment and the
notice of availability and are not
repeated here.
Comments and Responses
NMFS received 17 comment letters on
Amendment 15A and the associated
environmental impact statement. Two of
these comment letters supported the
proposed actions. The remaining
comment letters opposed one or more of
the proposed actions for the reasons
summarized below.
Comment 1: One group stated
Amendment 15A should consider
management measures to address the
Magnuson-Stevens Act’s requirement
that an amendment designed to rebuild
an overfished fishery must also allocate
both overfishing restrictions and
recovery benefits fairly and equitably
among sectors of the fishery.
Response: Amendment 15A is
intended to comply with the MagnusonStevens Act and satisfy a United States
district court ruling that found a plan to
rebuild snowy grouper and black sea
bass should have been included in
Amendment 13C to the FMP because
the two species were overfished.
Amendment 15A establishes the
rebuilding plans but does not contain
measures with direct regulatory effect;
instead it specifies management
reference points, a timeframe for
rebuilding overfished stocks, and a
strategy for how overfished stocks will
be rebuilt within the specified
timeframe, as required by the August 17,
2007, court opinion and October 2,
2007, court order. Although
Amendment 13C did not have a
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rebuilding plan, the amendment
included measures with direct
regulatory effect necessary to end
overfishing of snowy grouper and black
sea bass, and therefore, initiate recovery
of those fisheries. The court determined
the measures in Amendment 13C were
‘‘fair and equitable’’ and in compliance
with national standard 4 of the
Magnuson-Stevens Act. The Council is
considering additional management
measures in Amendments 15B and 17 to
ensure both overfishing restrictions and
recovery benefits would continue to be
fairly and equitably allocated among
fishing sectors during the rebuilding
periods for snowy grouper and black sea
bass.
Comment 2: One group of
commenters supported fast-track
strategies for fish stock recoveries. The
commenters indicated such strategies
would minimize the number of years
needed for recovery, benefitting fish
stocks as well as fishermen once stocks
recovered.
Response: The Council evaluated a
broad range of alternatives for the
establishment of rebuilding schedules
for snowy grouper and black sea bass. A
rebuilding schedule for red porgy was
established through Amendment 12, in
2000. The alternatives considered for
each proposed rebuilding schedule
action in Amendment 15A ranged from
those that would rebuild stocks in the
shortest amount of time in the absence
of fishing mortality to those that would
rebuild stocks over the longest period of
time allowed by the Magnuson-Stevens
Act. For snowy grouper, the Council’s
preferred alternative would rebuild the
stock in 34 years, which is the
maximum time allowed by the
Magnuson-Stevens Act. However,
shorter rebuilding schedules would not
be expected to rebuild the snowy
grouper stock to biomass at the
maximum sustainable yield, even if
retention was entirely prohibited due to
the incidental capture of snowy grouper
in this multi-species snapper-grouper
fishery. As release mortality is 100
percent, it is expected these fish would
still be caught incidentally and
discarded dead when fishermen target
co-occurring species. Amendment 13C
reduced the allowable catch of snowy
grouper to the extent that fishermen are
not targeting the species and now only
retain them as incidental catch.
The preferred rebuilding strategy
alternative for snowy grouper would
retain the total allowable catch (TAC) at
102,960 lb (46,702 kg) whole weight
until modified by future action. By
keeping TAC at this level, fishing
mortality would decrease to levels less
than the fishing mortality associated
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with the maximum sustainable yield
and thereby increase the probability that
biomass would increase.
The preferred 10-year rebuilding
schedule for black sea bass is also the
longest allowed by the MagnusonStevens Act. However, the shortest
rebuilding schedule (6 years) would not
be expected to rebuild black sea bass to
the biomass at the maximum sustainable
yield, even if retention of black sea bass
is entirely prohibited. Black sea bass is
part of a multi-species fishery, and it is
expected that these fish would still be
caught incidentally and discarded dead
when fishermen target co-occurring
species. The Council’s preferred
rebuilding schedule would rebuild the
stock to healthy levels, over a slightly
longer time period and still within the
allowable time frame, which would be
less detrimental to the fishing
community dependent on the resource.
Comment 3: Two commenters stated
that despite NMFS’ assertion that the
best available data were used in the
analyses supporting Amendment 15A,
they remain concerned that the stock
assessments do not provide adequate
estimates of stock status.
Response: Status determinations for
snowy grouper, black sea bass, and red
porgy were derived from the Southeast
Data, Assessment and Review (SEDAR)
process. The SEDAR process involves a
series of three workshops designed to
ensure each stock assessment reflects
the best available scientific information.
The findings and conclusions of each
SEDAR workshop are documented in a
series of reports, which are ultimately
reviewed and discussed by the Council
and its Scientific and Statistical
Committee (SSC). SEDAR participants,
Council advisory committees, the
Council, and NMFS staff reviewed and
considered these and other concerns
about the adequacy of the data. The
Council’s snapper-grouper committee
acknowledged that while stock
assessment findings are uncertain, there
is no reason to assume that uncertainty
leads to overly pessimistic or optimistic
conclusions about stock status.
Therefore, uncertainty should not be
used as a reason to avoid taking action.
The adequacy of these data was at issue
in the recent civil action, North Carolina
Fisheries Association, Inc., et al., v.
Carlos Gutierrez, Secretary, United
States Department of Commerce, Case
No. 06–1815 (D.D.C. 2006), where the
plaintiffs claimed, among other things,
that actions taken in Amendment 13C
were inconsistent with national
standard 2 of the Magnuson-Stevens
Act, which requires that all FMPs and
plan amendments ‘‘be based upon the
best scientific information available.’’
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14943
The same assessment information used
in Amendment 13C was used in
Amendment 15A to specify
management reference points, and
rebuilding plans for snowy grouper,
black sea bass, and red porgy. In the
court’s opinion issued in the North
Carolina Fisheries Association case, the
judge concluded ‘‘the Secretary was not
obliged to ’sit idly by’ when faced with
overfishing and overfished stocks
simply because the data available to him
may have been less than perfect. In sum,
the Secretary’s decision to act on the
basis of the existing information easily
meets the standard of rationality
required of him.’’ The NMFS’ Southeast
Fisheries Science Center (SEFSC)
reviewed and certified Amendment 13C
and its supporting analyses as being
based on the best available scientific
information. The SSC and the SEFSC
have determined Amendment 15A is
based on the best scientific information
available.
Comment 4: One commenter stated
the cumulative impacts section of the
EIS is inadequate because impacts from
previous regulations on fishery
participants in all fisheries available to
them in the past have been ignored in
the analysis.
Response: Amendment 15A, which is
integrated with the EIS, qualitatively
discusses cumulative impacts (Section
4.5.2), and concludes that ‘‘it is not
possible to differentiate actual or
cumulative regulatory effects from
external cause-induced effects.’’ It also
states, ‘‘In general, it can be stated,
however, that the regulatory
environment for all fisheries has become
progressively more complex and
burdensome, increasing, in tandem with
other adverse influence, the pressure on
economic losses, business failure,
occupational changes, and associated
adverse pressures on associated
families, communities, and industries.
Some reverse of this trend is possible
and expected.’’
The integrated document also
contains a discussion of potential
adverse long-term socioeconomic
impacts to some current fishery
participants (Section 4.5.2). This section
states that ‘‘Where losses are projected,
as is always the case, individual losses
may be so severe that some entities may
not be able to remain in business long
enough to reap the benefits of a
recovered stock and increased long-term
resource stability. Thus, even though
the fishery as a whole may benefit,
individual participants may suffer.
However, as is also the case, failure to
take action can result in persistent
foregone economic benefits, or more
severe corrective action with greater
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adverse impacts if the period under
which recovery is mandated is
substantially shortened.’’
The integrated document also
incorporates, by reference, discussion of
impacts associated with the regulatory
measures associated with Amendment
13C to the FMP.
Comment 5: It is likely the
recreational allocation of snowy grouper
will be quite small, and any snowy
grouper rebuilding schedule will be
compromised until the Council can put
into place an adequate method of
accounting for recreational landings.
Response: Amendment 15B to the
FMP, currently under development,
includes alternatives to address
allocation of snowy grouper.
Furthermore, Amendment 15B includes
alternatives that could modify the
regulations on the sale of bag limit
caught fish and, thus, improve
accounting of snowy grouper landings.
Amendment 17 to the FMP is being
developed to establish annual catch
limits for species experiencing
overfishing, including snowy grouper.
Amendment 17 would also include
accountability measures to ensure
annual catch limits in the recreational
and commercial sectors are not
exceeded and overfishing is prevented
where possible and mitigated if it
occurs.
Comment 6: Six individuals
commented that the fishery would be
best served by utilizing the rebuilding
plan options which have the least effect
on fishing effort and harvest as possible.
They feel that the shorter the rebuilding
schedule the more substantial
socioeconomic impacts on fishermen
will be, and they would like those
impacts minimized as much as possible.
These commenters also noted that
fishing effort could shift to other
species.
Response: The Council’s preferred
rebuilding schedule alternatives for
snowy grouper and black sea bass are
the maximum length of time allowed by
the Magnuson-Stevens Act and would
have less of a negative short-term social
and economic impact than shorter
rebuilding schedules. Some effort shift
to other fisheries could occur as a result
of management measures imposed
through Amendment 13C, however,
longer rebuilding schedules are likely to
cause less effort shifting than shorter
rebuilding schedules, which would
require more stringent management
regulations. An 18-year rebuilding
schedule for red porgy was specified
through Amendment 12 to the FMP in
2000. Also, the Council considered the
rebuilding strategy alternatives that
would have the greatest benefit to the
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stock and result in the least short-term
negative socioeconomic effects. Red
porgy is no longer undergoing
overfishing, and the stock is rebuilding.
An increase in TAC for 2009 reflects the
improved status of the red porgy fishery.
Snowy grouper and black sea bass are
experiencing overfishing and are
overfished. Amendment 13C
implemented management measures
over a 3-year period with the intent of
ending overfishing by 2009. At the
December 2007 Council meeting, the
Council elected to set the snowy
grouper TAC at the 2008 level of
102,960 lb (46,702 kg) whole weight
rather than increase TAC to 109,360 lb
(49,605 kg) whole weight in 2009. The
Council was concerned that the 2009
TAC was based on the yield at FMSY,
which would be considered to be a limit
rather than a target under the
reauthorized Magnuson-Stevens Act. By
keeping catch at 2008 levels, fishing
mortality would decrease below FMSY
and the probability that overfishing had
ended would increase.
The preferred rebuilding strategy for
black sea bass would also retain TAC at
the 2008 levels and could rebuild sea
bass 2 years ahead of schedule resulting
in a very large increase in the allowable
catch once the stock is rebuilt. As a
result, this alternative is expected to
provide the greatest long-term,
biological effects to the stock and
associated ecosystem as well as
significant economic benefits.
Comment 7: One individual suggested
that a more reasonable approach to end
overfishing would be through the
establishment of a two-for-one permit
buyout program, and suggested anyone
holding a permit is entitled to an equal
allocation of fish.
Response: A two-for-one permit
buyout program would address the
number of allowed participants over the
long term but would not immediately or
directly address overfishing. The
Council implemented a 2 for 1 permit
program in 1998, and many snapper
grouper species are still experiencing
overfishing. The possibility of using a
limited access privilege (LAP) program
in the South Atlantic snapper-grouper
fishery is being considered in
Amendment 18 to the FMP. Such a
program would further limit fishery
participation and would be created with
the intent to prevent and/or end
overcapitalization of the fishery.
Allocations for certain snapper-grouper
species are being considered in snappergrouper Amendment 15B, Amendment
16, and a comprehensive allocation
amendment, which are in development.
Comment 8: One group recommended
against using the maximum amount of
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time possible under the law (T(max)) to
rebuild severely depleted fish stocks
such as snowy grouper.
Response: Rebuilding schedules of 12
and 23.5 years (Alternatives 2 and 3 in
Amendment 15A, respectively) would
not be expected to rebuild the snowy
grouper stock to the biomass at the
maximum sustainable yield, even if
retention of snowy grouper is entirely
prohibited. Snowy grouper is part of a
multi-species fishery. Even with no
harvest, one would expect snowy
grouper to be caught incidentally and
released dead by fishermen when cooccurring species were targeted. Snowy
grouper is a deepwater species, and
release mortality is estimated to be 100
percent; therefore, no incidentally
captured snowy grouper would survive.
Actions taken in Amendment 13C
substantially reduced the allowable
harvest of snowy grouper to a level that
would likely be taken incidentally. The
longest rebuilding schedule allows
fishermen to retain snowy grouper that
are incidentally caught rather than
release dead fish. Snowy grouper
probably would not be able to rebuild in
a shorter timeframe due to bycatch
mortality when fishermen target cooccurring species. The Council is
considering the formation of a
deepwater snapper-grouper unit in
Amendment 17 to the FMP. The Council
believes that managing the deepwater
species as a unit would decrease
discards of these species with high
release mortality rates.
Comment 9: One commenter stated
the definition of minimum stock size
threshold (MSST) at 0.75*SSBMSY is
inappropriate and suggested retaining
the MSST definition at (1–M)*SSBMSY.
Response: The current definition of
MSST is (1–M)*SSBMSY or 0.5*SSBMSY,
whichever is greater, where M equals
the natural mortality rate. The relatively
low estimation of M (0.12) produces an
MSST that is similar to SSBMSY. By
modifying the current definition of
MSST for snowy grouper to 0.75*BMSY,
the Council is hoping to avoid a
situation where the natural variation in
recruitment causes the stock biomass to
frequently alternate between an
overfished and rebuilt condition, even if
the fishing mortality rate applied to the
stock was within the limits specified by
the maximum fishing mortality
threshold. Such a situation could create
administrative difficulties if the
overfished threshold was met and a
rebuilding plan was unnecessarily
triggered. Regardless of which MSST
definition is chosen, snowy grouper is
overfished and biomass is well below
the threshold that would trigger a
rebuilding plan. The recent SEDAR
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assessment estimates current biomass of
snowy grouper at 18 percent of
SSBMSY.
Comment 10: Several commenters
objected to the modified F rebuilding
strategies because they either fail to
achieve optimum yield, or fail to
prevent overfishing by using TACs set at
FMSY.
Response: Achievement of OY has
been specified in Amendment 15A
through the selection of the preferred
rebuilding strategy alternatives for
snowy grouper, red porgy, and black sea
bass. An estimate of OY is the target
when a stock is rebuilt and plans can
transition from rebuilding to OY
management. OY for each of the subject
species has been defined in the
amendment. The preferred rebuilding
strategies are expected to achieve the
OY target for each species within the
rebuilding schedule time frame, while
minimizing to the extent practicable,
adverse socioeconomic impacts.
Prior to December 2007, the preferred
rebuilding strategy for snowy grouper
was based on the yield at FMSY.
However, in response to comments from
The Ocean Conservancy, the Council, at
its December 2007 meeting, added a
new sub-alternative for snowy grouper
that would not increase the TAC;
thereby setting yield based on a fishing
mortality rate less than FMSY. By leaving
the TAC at the 2008 level, the allowable
fishing mortality rate will decrease
below FMSY and increase the chance
overfishing will end and the stock will
rebuild. In addition, based on the
reauthorized Magnuson-Stevens Act, it
would be difficult to justify increasing
the TAC before a stock assessment
indicates overfishing is ended. A 2010
assessment update for snowy grouper
will determine if management measures
have been effective in ending
overfishing, and if so, warrant a
subsequent increase in TAC, which
would help achieve optimum yield.
The TAC for red porgy, as specified
through the preferred rebuilding
strategy alterative is set below the yield
when fishing at MSY and will result in
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a fishing mortality rate that
approximates FOY. For black sea bass,
the TAC in 2009 is established at the
yield when fishing at MSY. However,
with the preferred constant catch
strategy, the TAC for 2009 (847,000 lb
(384,193 kg whole weight) would
remain in effect beyond 2009 until
modified. Holding catch at constant
levels as the stock rebuilds would be
expected to gradually reduce the fishing
mortality rate to FOY by 2010, increasing
the chance overfishing will end and the
stock will rebuild. The preferred
rebuilding strategy alternatives for
snowy grouper, red porgy, and black sea
bass are expected to provide the greatest
long-term, biological effects to the
stocks and associated ecosystem
throughout their entire rebuilding time
frames.
Comment 11: Any fishery
management plan must include
measures that minimize bycatch and
unavoidable bycatch mortality to the
extent practicable. Amendment 15A
does not contain any discussion of
bycatch reduction in the deepwater
complex.
Response: Although no measures in
the amendment involve regulatory
changes, the preferred rebuilding
alternative for red porgy that would
increase TAC beyond 2008 levels
accounts for an estimate of increase in
dead discards. Preferred rebuilding
strategies for snowy grouper and black
sea bass keep TAC at 2008 levels;
however, other alternatives considered
that increase TAC in 2009 account for
an increased estimate of dead discards
that could occur. In addition,
Amendment 15A contains a discussion
on bycatch of snowy grouper in the
bycatch practicability section and
includes estimates of the magnitude of
bycatch that are currently occurring in
the commercial and recreational sectors.
Furthermore, Appendix E to
Amendment 15A provides estimates of
dead discards that could occur in
fisheries for snowy grouper, black sea
bass, and red porgy as a result of new
management measures imposed through
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14945
Amendment 13C. Discussion in
Amendment 15A also indicates snowy
grouper bycatch could be reduced
through future actions in Amendment
17. Alternatives in Amendment 17
include actions to establish a deepwater
unit composed of co-occurring species
and would establish management
measures for the deepwater unit
including an aggregate trip limit and a
quota. Alternatives would also consider
prohibiting all purchase and sale of
species in the unit after any of the
individual quotas are met. Although
some bycatch of species in the unit
could occur when targeting shelf edge
species, management of the deepwater
species as a unit is expected to
substantially reduce bycatch of snowy
grouper. Amendment 17 would also
establish ACLs and accountability
measures for snowy grouper and other
species experiencing overfishing,
further reducing bycatch.
Comment 12: One individual stated
that Amendment 15A would prevent the
remaining fishermen from making a
living, and would increase the cost of
fish.
Response: Retaining existing values
for the reference points and subsequent
allowance of harvest at the respective
MSY value may lead to excessive
exploitation, precipitating imposition in
the future of more restrictive
management measures and reductions
in economic and social benefits. Once
the resource is rebuilt, consistent with
the rebuilding plans in Amendment
15A, the specification of MSY/OY and
the related increase in total allowable
harvest and reduced harvest restrictions
would support increased economic and
social benefits of the fishery.
Authority: 16 U.S.C. 1801 et seq.
Dated: March 14, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator For
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E8–5655 Filed 3–19–08; 8:45 am]
BILLING CODE 3510–22–S
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[Federal Register Volume 73, Number 55 (Thursday, March 20, 2008)]
[Rules and Regulations]
[Pages 14942-14945]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-5655]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
RIN 0648-AU29
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Snapper-Grouper Fishery off the Southern Atlantic States; Amendment 15A
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of agency action.
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SUMMARY: NMFS announces approval of Amendment 15A to the Fishery
Management Plan for the Snapper-Grouper Fishery of the South Atlantic
Region (FMP). Amendment 15A updates management reference points for
snowy grouper, black sea bass, and red porgy based on the most recent
stock assessments; modifies rebuilding schedules for snowy grouper and
black sea bass; defines rebuilding strategies for snowy grouper, black
sea bass, and red porgy; and redefines the minimum stock size threshold
for the snowy grouper stock. The measures contained in the subject
amendment are intended to both comply with the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act) and satisfy a
U.S. district court's rulings to establish rebuilding plans for South
Atlantic snowy grouper and black sea bass and approve, amend or reject
Amendment 15A by March 14, 2008.
DATES: NMFS approved Amendment 15A, without modification, on March 14,
2008.
FOR FURTHER INFORMATION CONTACT: John McGovern, telephone: 727-824-
5305; fax: 727-824-5308; e-mail: John.McGovern@noaa.gov.
SUPPLEMENTARY INFORMATION: The South Atlantic snapper-grouper fishery
is managed under the FMP. The FMP was prepared by the South Atlantic
Fishery Management Council (Council) and implemented by NMFS under the
authority of the Magnuson-Stevens Act by regulations at 50 CFR part
622.
On December 28, 2007, NMFS published a notice of availability of
Amendment 15A and requested public comment (72 FR 73747). After
considering the public comments received, NMFS approved Amendment 15A,
without modification, on March 14, 2008. The background rationale for
the measures in Amendment 15A are contained in the amendment and the
notice of availability and are not repeated here.
Comments and Responses
NMFS received 17 comment letters on Amendment 15A and the
associated environmental impact statement. Two of these comment letters
supported the proposed actions. The remaining comment letters opposed
one or more of the proposed actions for the reasons summarized below.
Comment 1: One group stated Amendment 15A should consider
management measures to address the Magnuson-Stevens Act's requirement
that an amendment designed to rebuild an overfished fishery must also
allocate both overfishing restrictions and recovery benefits fairly and
equitably among sectors of the fishery.
Response: Amendment 15A is intended to comply with the Magnuson-
Stevens Act and satisfy a United States district court ruling that
found a plan to rebuild snowy grouper and black sea bass should have
been included in Amendment 13C to the FMP because the two species were
overfished. Amendment 15A establishes the rebuilding plans but does not
contain measures with direct regulatory effect; instead it specifies
management reference points, a timeframe for rebuilding overfished
stocks, and a strategy for how overfished stocks will be rebuilt within
the specified timeframe, as required by the August 17, 2007, court
opinion and October 2, 2007, court order. Although Amendment 13C did
not have a
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rebuilding plan, the amendment included measures with direct regulatory
effect necessary to end overfishing of snowy grouper and black sea
bass, and therefore, initiate recovery of those fisheries. The court
determined the measures in Amendment 13C were ``fair and equitable''
and in compliance with national standard 4 of the Magnuson-Stevens Act.
The Council is considering additional management measures in Amendments
15B and 17 to ensure both overfishing restrictions and recovery
benefits would continue to be fairly and equitably allocated among
fishing sectors during the rebuilding periods for snowy grouper and
black sea bass.
Comment 2: One group of commenters supported fast-track strategies
for fish stock recoveries. The commenters indicated such strategies
would minimize the number of years needed for recovery, benefitting
fish stocks as well as fishermen once stocks recovered.
Response: The Council evaluated a broad range of alternatives for
the establishment of rebuilding schedules for snowy grouper and black
sea bass. A rebuilding schedule for red porgy was established through
Amendment 12, in 2000. The alternatives considered for each proposed
rebuilding schedule action in Amendment 15A ranged from those that
would rebuild stocks in the shortest amount of time in the absence of
fishing mortality to those that would rebuild stocks over the longest
period of time allowed by the Magnuson-Stevens Act. For snowy grouper,
the Council's preferred alternative would rebuild the stock in 34
years, which is the maximum time allowed by the Magnuson-Stevens Act.
However, shorter rebuilding schedules would not be expected to rebuild
the snowy grouper stock to biomass at the maximum sustainable yield,
even if retention was entirely prohibited due to the incidental capture
of snowy grouper in this multi-species snapper-grouper fishery. As
release mortality is 100 percent, it is expected these fish would still
be caught incidentally and discarded dead when fishermen target co-
occurring species. Amendment 13C reduced the allowable catch of snowy
grouper to the extent that fishermen are not targeting the species and
now only retain them as incidental catch.
The preferred rebuilding strategy alternative for snowy grouper
would retain the total allowable catch (TAC) at 102,960 lb (46,702 kg)
whole weight until modified by future action. By keeping TAC at this
level, fishing mortality would decrease to levels less than the fishing
mortality associated with the maximum sustainable yield and thereby
increase the probability that biomass would increase.
The preferred 10-year rebuilding schedule for black sea bass is
also the longest allowed by the Magnuson-Stevens Act. However, the
shortest rebuilding schedule (6 years) would not be expected to rebuild
black sea bass to the biomass at the maximum sustainable yield, even if
retention of black sea bass is entirely prohibited. Black sea bass is
part of a multi-species fishery, and it is expected that these fish
would still be caught incidentally and discarded dead when fishermen
target co-occurring species. The Council's preferred rebuilding
schedule would rebuild the stock to healthy levels, over a slightly
longer time period and still within the allowable time frame, which
would be less detrimental to the fishing community dependent on the
resource.
Comment 3: Two commenters stated that despite NMFS' assertion that
the best available data were used in the analyses supporting Amendment
15A, they remain concerned that the stock assessments do not provide
adequate estimates of stock status.
Response: Status determinations for snowy grouper, black sea bass,
and red porgy were derived from the Southeast Data, Assessment and
Review (SEDAR) process. The SEDAR process involves a series of three
workshops designed to ensure each stock assessment reflects the best
available scientific information. The findings and conclusions of each
SEDAR workshop are documented in a series of reports, which are
ultimately reviewed and discussed by the Council and its Scientific and
Statistical Committee (SSC). SEDAR participants, Council advisory
committees, the Council, and NMFS staff reviewed and considered these
and other concerns about the adequacy of the data. The Council's
snapper-grouper committee acknowledged that while stock assessment
findings are uncertain, there is no reason to assume that uncertainty
leads to overly pessimistic or optimistic conclusions about stock
status. Therefore, uncertainty should not be used as a reason to avoid
taking action. The adequacy of these data was at issue in the recent
civil action, North Carolina Fisheries Association, Inc., et al., v.
Carlos Gutierrez, Secretary, United States Department of Commerce, Case
No. 06-1815 (D.D.C. 2006), where the plaintiffs claimed, among other
things, that actions taken in Amendment 13C were inconsistent with
national standard 2 of the Magnuson-Stevens Act, which requires that
all FMPs and plan amendments ``be based upon the best scientific
information available.'' The same assessment information used in
Amendment 13C was used in Amendment 15A to specify management reference
points, and rebuilding plans for snowy grouper, black sea bass, and red
porgy. In the court's opinion issued in the North Carolina Fisheries
Association case, the judge concluded ``the Secretary was not obliged
to 'sit idly by' when faced with overfishing and overfished stocks
simply because the data available to him may have been less than
perfect. In sum, the Secretary's decision to act on the basis of the
existing information easily meets the standard of rationality required
of him.'' The NMFS' Southeast Fisheries Science Center (SEFSC) reviewed
and certified Amendment 13C and its supporting analyses as being based
on the best available scientific information. The SSC and the SEFSC
have determined Amendment 15A is based on the best scientific
information available.
Comment 4: One commenter stated the cumulative impacts section of
the EIS is inadequate because impacts from previous regulations on
fishery participants in all fisheries available to them in the past
have been ignored in the analysis.
Response: Amendment 15A, which is integrated with the EIS,
qualitatively discusses cumulative impacts (Section 4.5.2), and
concludes that ``it is not possible to differentiate actual or
cumulative regulatory effects from external cause-induced effects.'' It
also states, ``In general, it can be stated, however, that the
regulatory environment for all fisheries has become progressively more
complex and burdensome, increasing, in tandem with other adverse
influence, the pressure on economic losses, business failure,
occupational changes, and associated adverse pressures on associated
families, communities, and industries. Some reverse of this trend is
possible and expected.''
The integrated document also contains a discussion of potential
adverse long-term socioeconomic impacts to some current fishery
participants (Section 4.5.2). This section states that ``Where losses
are projected, as is always the case, individual losses may be so
severe that some entities may not be able to remain in business long
enough to reap the benefits of a recovered stock and increased long-
term resource stability. Thus, even though the fishery as a whole may
benefit, individual participants may suffer. However, as is also the
case, failure to take action can result in persistent foregone economic
benefits, or more severe corrective action with greater
[[Page 14944]]
adverse impacts if the period under which recovery is mandated is
substantially shortened.''
The integrated document also incorporates, by reference, discussion
of impacts associated with the regulatory measures associated with
Amendment 13C to the FMP.
Comment 5: It is likely the recreational allocation of snowy
grouper will be quite small, and any snowy grouper rebuilding schedule
will be compromised until the Council can put into place an adequate
method of accounting for recreational landings.
Response: Amendment 15B to the FMP, currently under development,
includes alternatives to address allocation of snowy grouper.
Furthermore, Amendment 15B includes alternatives that could modify the
regulations on the sale of bag limit caught fish and, thus, improve
accounting of snowy grouper landings. Amendment 17 to the FMP is being
developed to establish annual catch limits for species experiencing
overfishing, including snowy grouper. Amendment 17 would also include
accountability measures to ensure annual catch limits in the
recreational and commercial sectors are not exceeded and overfishing is
prevented where possible and mitigated if it occurs.
Comment 6: Six individuals commented that the fishery would be best
served by utilizing the rebuilding plan options which have the least
effect on fishing effort and harvest as possible. They feel that the
shorter the rebuilding schedule the more substantial socioeconomic
impacts on fishermen will be, and they would like those impacts
minimized as much as possible. These commenters also noted that fishing
effort could shift to other species.
Response: The Council's preferred rebuilding schedule alternatives
for snowy grouper and black sea bass are the maximum length of time
allowed by the Magnuson-Stevens Act and would have less of a negative
short-term social and economic impact than shorter rebuilding
schedules. Some effort shift to other fisheries could occur as a result
of management measures imposed through Amendment 13C, however, longer
rebuilding schedules are likely to cause less effort shifting than
shorter rebuilding schedules, which would require more stringent
management regulations. An 18-year rebuilding schedule for red porgy
was specified through Amendment 12 to the FMP in 2000. Also, the
Council considered the rebuilding strategy alternatives that would have
the greatest benefit to the stock and result in the least short-term
negative socioeconomic effects. Red porgy is no longer undergoing
overfishing, and the stock is rebuilding. An increase in TAC for 2009
reflects the improved status of the red porgy fishery.
Snowy grouper and black sea bass are experiencing overfishing and
are overfished. Amendment 13C implemented management measures over a 3-
year period with the intent of ending overfishing by 2009. At the
December 2007 Council meeting, the Council elected to set the snowy
grouper TAC at the 2008 level of 102,960 lb (46,702 kg) whole weight
rather than increase TAC to 109,360 lb (49,605 kg) whole weight in
2009. The Council was concerned that the 2009 TAC was based on the
yield at FMSY, which would be considered to be a limit rather than a
target under the reauthorized Magnuson-Stevens Act. By keeping catch at
2008 levels, fishing mortality would decrease below FMSY and the
probability that overfishing had ended would increase.
The preferred rebuilding strategy for black sea bass would also
retain TAC at the 2008 levels and could rebuild sea bass 2 years ahead
of schedule resulting in a very large increase in the allowable catch
once the stock is rebuilt. As a result, this alternative is expected to
provide the greatest long-term, biological effects to the stock and
associated ecosystem as well as significant economic benefits.
Comment 7: One individual suggested that a more reasonable approach
to end overfishing would be through the establishment of a two-for-one
permit buyout program, and suggested anyone holding a permit is
entitled to an equal allocation of fish.
Response: A two-for-one permit buyout program would address the
number of allowed participants over the long term but would not
immediately or directly address overfishing. The Council implemented a
2 for 1 permit program in 1998, and many snapper grouper species are
still experiencing overfishing. The possibility of using a limited
access privilege (LAP) program in the South Atlantic snapper-grouper
fishery is being considered in Amendment 18 to the FMP. Such a program
would further limit fishery participation and would be created with the
intent to prevent and/or end overcapitalization of the fishery.
Allocations for certain snapper-grouper species are being considered in
snapper-grouper Amendment 15B, Amendment 16, and a comprehensive
allocation amendment, which are in development.
Comment 8: One group recommended against using the maximum amount
of time possible under the law (T(max)) to rebuild severely depleted
fish stocks such as snowy grouper.
Response: Rebuilding schedules of 12 and 23.5 years (Alternatives 2
and 3 in Amendment 15A, respectively) would not be expected to rebuild
the snowy grouper stock to the biomass at the maximum sustainable
yield, even if retention of snowy grouper is entirely prohibited. Snowy
grouper is part of a multi-species fishery. Even with no harvest, one
would expect snowy grouper to be caught incidentally and released dead
by fishermen when co-occurring species were targeted. Snowy grouper is
a deepwater species, and release mortality is estimated to be 100
percent; therefore, no incidentally captured snowy grouper would
survive. Actions taken in Amendment 13C substantially reduced the
allowable harvest of snowy grouper to a level that would likely be
taken incidentally. The longest rebuilding schedule allows fishermen to
retain snowy grouper that are incidentally caught rather than release
dead fish. Snowy grouper probably would not be able to rebuild in a
shorter timeframe due to bycatch mortality when fishermen target co-
occurring species. The Council is considering the formation of a
deepwater snapper-grouper unit in Amendment 17 to the FMP. The Council
believes that managing the deepwater species as a unit would decrease
discards of these species with high release mortality rates.
Comment 9: One commenter stated the definition of minimum stock
size threshold (MSST) at 0.75*SSBMSY is inappropriate and
suggested retaining the MSST definition at (1-M)*SSBMSY.
Response: The current definition of MSST is (1-M)*SSBMSY
or 0.5*SSBMSY, whichever is greater, where M equals the
natural mortality rate. The relatively low estimation of M (0.12)
produces an MSST that is similar to SSBMSY. By modifying the
current definition of MSST for snowy grouper to 0.75*BMSY,
the Council is hoping to avoid a situation where the natural variation
in recruitment causes the stock biomass to frequently alternate between
an overfished and rebuilt condition, even if the fishing mortality rate
applied to the stock was within the limits specified by the maximum
fishing mortality threshold. Such a situation could create
administrative difficulties if the overfished threshold was met and a
rebuilding plan was unnecessarily triggered. Regardless of which MSST
definition is chosen, snowy grouper is overfished and biomass is well
below the threshold that would trigger a rebuilding plan. The recent
SEDAR
[[Page 14945]]
assessment estimates current biomass of snowy grouper at 18 percent of
SSBMSY.
Comment 10: Several commenters objected to the modified F
rebuilding strategies because they either fail to achieve optimum
yield, or fail to prevent overfishing by using TACs set at
FMSY.
Response: Achievement of OY has been specified in Amendment 15A
through the selection of the preferred rebuilding strategy alternatives
for snowy grouper, red porgy, and black sea bass. An estimate of OY is
the target when a stock is rebuilt and plans can transition from
rebuilding to OY management. OY for each of the subject species has
been defined in the amendment. The preferred rebuilding strategies are
expected to achieve the OY target for each species within the
rebuilding schedule time frame, while minimizing to the extent
practicable, adverse socioeconomic impacts.
Prior to December 2007, the preferred rebuilding strategy for snowy
grouper was based on the yield at FMSY. However, in response
to comments from The Ocean Conservancy, the Council, at its December
2007 meeting, added a new sub-alternative for snowy grouper that would
not increase the TAC; thereby setting yield based on a fishing
mortality rate less than FMSY. By leaving the TAC at the
2008 level, the allowable fishing mortality rate will decrease below
FMSY and increase the chance overfishing will end and the stock will
rebuild. In addition, based on the reauthorized Magnuson-Stevens Act,
it would be difficult to justify increasing the TAC before a stock
assessment indicates overfishing is ended. A 2010 assessment update for
snowy grouper will determine if management measures have been effective
in ending overfishing, and if so, warrant a subsequent increase in TAC,
which would help achieve optimum yield.
The TAC for red porgy, as specified through the preferred
rebuilding strategy alterative is set below the yield when fishing at
MSY and will result in a fishing mortality rate that approximates
FOY. For black sea bass, the TAC in 2009 is established at
the yield when fishing at MSY. However, with the preferred constant
catch strategy, the TAC for 2009 (847,000 lb (384,193 kg whole weight)
would remain in effect beyond 2009 until modified. Holding catch at
constant levels as the stock rebuilds would be expected to gradually
reduce the fishing mortality rate to FOY by 2010, increasing
the chance overfishing will end and the stock will rebuild. The
preferred rebuilding strategy alternatives for snowy grouper, red
porgy, and black sea bass are expected to provide the greatest long-
term, biological effects to the stocks and associated ecosystem
throughout their entire rebuilding time frames.
Comment 11: Any fishery management plan must include measures that
minimize bycatch and unavoidable bycatch mortality to the extent
practicable. Amendment 15A does not contain any discussion of bycatch
reduction in the deepwater complex.
Response: Although no measures in the amendment involve regulatory
changes, the preferred rebuilding alternative for red porgy that would
increase TAC beyond 2008 levels accounts for an estimate of increase in
dead discards. Preferred rebuilding strategies for snowy grouper and
black sea bass keep TAC at 2008 levels; however, other alternatives
considered that increase TAC in 2009 account for an increased estimate
of dead discards that could occur. In addition, Amendment 15A contains
a discussion on bycatch of snowy grouper in the bycatch practicability
section and includes estimates of the magnitude of bycatch that are
currently occurring in the commercial and recreational sectors.
Furthermore, Appendix E to Amendment 15A provides estimates of dead
discards that could occur in fisheries for snowy grouper, black sea
bass, and red porgy as a result of new management measures imposed
through Amendment 13C. Discussion in Amendment 15A also indicates snowy
grouper bycatch could be reduced through future actions in Amendment
17. Alternatives in Amendment 17 include actions to establish a
deepwater unit composed of co-occurring species and would establish
management measures for the deepwater unit including an aggregate trip
limit and a quota. Alternatives would also consider prohibiting all
purchase and sale of species in the unit after any of the individual
quotas are met. Although some bycatch of species in the unit could
occur when targeting shelf edge species, management of the deepwater
species as a unit is expected to substantially reduce bycatch of snowy
grouper. Amendment 17 would also establish ACLs and accountability
measures for snowy grouper and other species experiencing overfishing,
further reducing bycatch.
Comment 12: One individual stated that Amendment 15A would prevent
the remaining fishermen from making a living, and would increase the
cost of fish.
Response: Retaining existing values for the reference points and
subsequent allowance of harvest at the respective MSY value may lead to
excessive exploitation, precipitating imposition in the future of more
restrictive management measures and reductions in economic and social
benefits. Once the resource is rebuilt, consistent with the rebuilding
plans in Amendment 15A, the specification of MSY/OY and the related
increase in total allowable harvest and reduced harvest restrictions
would support increased economic and social benefits of the fishery.
Authority: 16 U.S.C. 1801 et seq.
Dated: March 14, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E8-5655 Filed 3-19-08; 8:45 am]
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