Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery Off the Southern Atlantic States; Amendment 17B, 82280-82295 [2010-32831]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 250 (Thursday, December 30, 2010)]
[Rules and Regulations]
[Pages 82280-82295]
From the Federal Register Online via the Government Printing 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

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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

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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: https://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, inclu