NMFS issues this final rule to implement Amendment 18A to the Fishery Management Plan (FMP) for the Snapper-Grouper Fishery of the South Atlantic Region (Amendment 18A), as prepared and submitted by the South Atlantic Fishery Management Council (Council). This rule modifies the current system of accountability measures for black sea bass, limits effort in the black sea bass segment of the snapper-grouper fishery, and improves fisheries data in the for-hire sector of the snapper-grouper fishery. Amendment 18A also updates the rebuilding plan and modifies the acceptable biological catch (ABC) for black sea bass. This final rule is intended to reduce overcapacity in the black sea bass segment of the snapper-grouper fishery.
This rule is effective July 1, 2012.
ADDRESSES: Electronic copies of Amendment 18A may be obtained from the
Southeast Regional Office Web site at http://sero.nmfs.noaa.gov/sf/SASnapperGrouperHomepage.htm. Amendment 18A includes an Environmental
Impact Statement, a Regulatory Impact Review, and a Fishery Impact
Statement.
Comments regarding the burden-hour estimates or other aspects of
the collection-of-information requirements contained in this final rule
may be submitted in writing to Anik Clemens, Southeast Regional Office,
NMFS, 263 13th Avenue South, St. Petersburg, FL 33701; and OMB, by
email at OIRA Submission@omb.eop.gov, or by fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Kate Michie, 727-824-5305.
SUPPLEMENTARY INFORMATION: The snapper-grouper fishery of the South
Atlantic is managed under the FMP. The FMP was prepared by the Council
and is implemented through regulations at 50 CFR part 622 under the
authority of the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act).
On January 31, 2012, NMFS published a notice of availability for
Amendment 18A and requested public comment (77 FR 4754). On March 23,
2012, NMFS published a proposed rule for Amendment 18A and requested
public comment (77 FR 16991).
NMFS partially approved Amendment 18A on May 2, 2012. NMFS
disapproved the action establishing transferability criteria for the
black sea bass pot endorsement, explaining that the amendment
identified the wrong preferred alternative selected for this action,
and there were discrepancies in the record regarding the Council's
discussion of the alternatives and the text describing and analyzing
this alternative in the document. Because the Council's intent was
unclear from the administrative record, NMFS was unable to implement
this action in compliance with the Administrative Procedure Act. The
Council is addressing transferability criteria for black sea bass pot
endorsements in a separate FMP amendment, which is currently under
development.
The proposed rule and Amendment 18A outline the rationale for the
actions contained in this final rule. The proposed rule incorrectly
indicated that it would modify the black sea bass rebuilding strategy
and ABC. Although these measures are included in Amendment 18A, they
are not codified in the regulations. A summary of the actions
implemented by this final rule is provided here.
This rule modifies the black sea bass annual catch limit (ACL);
limits participation in the black sea bass pot segment of the snapper-
grouper fishery through an endorsement program; establishes an appeals
process for fishermen excluded from the black sea bass pot endorsement
program; limits the number of pot tags issued to participants in the
black sea bass pot segment of the snapper-grouper fishery; implements
measures to reduce black sea bass bycatch; modifies accountability
measures (AMs) for black sea bass; establishes a commercial trip limit
for black sea bass; modifies the current commercial and recreational
black sea bass size limits; and improves data reporting in the for-hire
sector of the snapper-grouper fishery. The intent of this rule is to
reduce overcapacity in the black sea bass segment of the snapper-
grouper fishery.
Comments and Responses
A total of 28 comments were received on the proposed rule and
Amendment 18A from individuals, Federal agencies, and fishing
associations. NMFS received 2 comments of general support and 26
individual comments opposing one or more actions contained in Amendment
18A. Several of the comments recommended alternative management
measures for black sea bass. Specific comments related to the actions
contained in the amendment and the rule as well as NMFS' respective
responses, are summarized below.
Comment 1: Several commenters stated they have recently seen more
black sea bass and larger black sea bass than in previous years.
Additionally, several commenters stated they are seeing black sea bass
in areas where they were not previously found. For these reasons the
same commenters stated the commercial and recreational ACLs for black
sea bass should be significantly increased to allow for more fishing of
the stock.
Response: Many fishery participants have indicated they are now
seeing more black sea bass and larger black sea bass than in recent
years, which is consistent with the finding of the most recent
Southeast, Data, Assessment, and Review (SEDAR) for black sea bass
which was completed in October 2011 (SEDAR 25). SEDAR 25 indicates that
black sea bass are no longer overfished, but are not yet fully rebuilt,
and that black sea bass was experiencing overfishing to a small extent
based on data from 2009 and 2010. Amendment 17B to the FMP (Amendment
17B), which was implemented on January 31, 2011, established ACLs and
AMs for black sea bass to ensure overfishing of black sea bass does not
occur (75 FR 82280).
The Magnuson-Stevens Act requires rebuilding plans to rebuild a
stock within 10 years except under limited
[[Page 32409]]
circumstances. The rebuilding strategy for black sea bass, which was
implemented in 2006 through Amendment 13C to the FMP (71 FR 55096,
September 21, 2006), holds catch at a constant level as the stock size
increases. The target time for rebuilding black sea bass is 2016.
Because the stock is rebuilding, fishermen are encountering black sea
bass more frequently than in recent years.
NMFS is implementing, through this final rule, a modified
rebuilding strategy that holds the combined commercial and recreational
ACL at 847,000 lb (384,200 kg), round weight [717,797 lb (325,587 kg),
gutted weight] for the next 2 fishing years; then changes the ACL to
the yield at FRebuild. The Council's Scientific and
Statistical Committee (SSC) endorsed this modification to the current
rebuilding strategy, but recommended the ACL not be modified until a
stock assessment update is completed before the 2014/2015 fishing year.
This rebuilding strategy has a 66 percent probability of rebuilding the
stock by 2016 while allowing increases to the ACL, if supported by the
next stock assessment.
Comment 2: One commenter is concerned that the continued shortening
of the commercial fishing season for black sea bass has led to
decreased revenues for his business.
Response: The black sea bass commercial sector has closed much
earlier the past 3 fishing years than in previous years, and in each of
these years the fishing season was shorter than the previous fishing
season. Thus, fishermen have experienced market glut during the months
of June, July, and August, and the purchase and sale of black sea bass
have been prohibited for the remainder of the season. Actions in
Amendment 18A are intended to extend fishing opportunities further into
the fishing season to mitigate these negative socioeconomic effects.
Comment 3: One commenter states that the early in-season closures
in the commercial and recreational sectors during the 2011/2012 fishing
year were not necessary because the stock is no longer overfished.
Response: Results of a 2011 stock assessment indicate that black
sea bass are no longer overfished but are not rebuilt, and that the
stock was undergoing overfishing to a minor degree according to 2009
and 2010 data. Following this overfishing determination, Amendment 17B
implemented AMs and ACLs on January 31, 2011, as required by the
Magnuson-Stevens Act, to ensure that overfishing of black sea bass does
not occur. In-season closures are a part of the system of commercial
and recreational AMs and ACLs for the black sea bass component of the
snapper-grouper fishery. The commercial sector AM for black sea bass
closes the commercial sector if commercial landings reach, or are
projected to reach, the commercial quota, which serves as the
functional commercial sector ACL.
The recreational sector AMs for black sea bass include closing the
recreational sector when the ACL is met or projected to be met if the
stock is overfished. Because the stock was still considered overfished
during the 2011/2012 fishing year the sector was closed on October 17,
2011, based on projections that the recreational ACL would be reached
by that time. This final rule will modify the current recreational AMs
to provide the Regional Administrator with the authority to close the
recreational sector when the ACL is met or projected to be met
regardless of the overfished status of black sea bass.
Comment 4: One commenter states that the most recent stock
assessment for black sea bass should have been delayed until 2011 data
for the black sea bass segment of the snapper-grouper fishery could be
included. One commenter recommends doing a new stock assessment for
black sea bass as soon as possible because the species may no longer be
undergoing overfishing.
Response: NMFS and the Council must schedule stock assessments
several years in advance to allow time for the needed data to be
compiled for use by stock assessment scientists. Stock assessment
schedules are reviewed by the Council and approved by the SEDAR
Steering Committee. The schedule may be found at the SEDAR Web site:
http://www.sefsc.noaa.gov/sedar/SEDAR_PlanSchedule_Nov2011.pdf. The
next black sea bass stock assessment has not been scheduled yet.
Amendment 17B (75 FR 82280, December 30, 2010) contained ACLs and
AMs to address black sea bass overfishing, and prevent future
overfishing from occurring, as required by the Magnuson-Stevens Act.
Delaying the assessment until 2011 data became available would have
delayed the implementation of Amendment 18A by 1 to 2 years. The
Council's SSC endorsed a modified rebuilding strategy, previously
discussed under the response to Comment 1, but recommended that the ACL
not be modified until a stock assessment update is completed prior to
the 2014/2015 fishing year. The stock assessment update would include
any effects the actions in Amendment 17B may have had on ending
overfishing of black sea bass.
Comment 5: One commenter inquired as to why Mid-Atlantic and New
England black sea bass have been successfully rebuilt while South
Atlantic black sea bass have not.
Response: Black sea bass are managed as separate stocks north and
south of Cape Hatteras, North Carolina. When establishing a rebuilding
plan for an overfished species, each Council must take into account
many variables including the degree to which overfishing is occurring,
Magnuson-Stevens Act requirements, the social and economic environment,
and trends in effort which are unique to different fisheries. In 2000,
black sea bass north of Cape Hatteras, North Carolina, were considered
to be overfished and undergoing overfishing, and actions were taken to
rebuild the stock. According to the 2010 Status of U.S. Fisheries found
at: http://www.nmfs.noaa.gov/sfa/statusoffisheries/2010/2010_FSSI_non_FSSI_stockstatus.pdf, black sea bass north of Cape Hatteras,
North Carolina, are no longer overfished and are not undergoing
overfishing. A 2005 stock assessment indicated that the black sea bass
stock south of Cape Hatteras, North Carolina, was still overfished and
undergoing overfishing. Amendment 15A to the FMP implemented a 10-year
rebuilding plan for South Atlantic black sea bass in 2008, designating
2006 as year one of the plan. The most recent stock assessment for
South Atlantic black sea bass, SEDAR 25, indicates that the stock is on
track to be rebuilt by 2016.
Comment 6: Several commenters stated the amount of regulatory
discards of species, such as black sea bass, caused by a low bag limit
and small recreational ACL has negatively impacted for-hire businesses
because paying customers are not willing to charter vessels for trips
that only allow catch-and-release. Thus, the number of trips and
quality of trips for some for-hire businesses has decreased. On the
other hand, two recreational anglers support a reduced bag limit in
order to keep the recreational fishing season open longer.
Response: Amendment 17B to the FMP implemented a recreational ACL
for black sea bass of 409,000 lb (185,519 kg), gutted weight [482,620
lb (218,913 kg), round weight]. In Amendment 18A, the Council
considered a range of alternatives for modifying the rebuilding plan
and the combined commercial and recreational ACL. The Council decided
to maintain the combined ACL established in Amendment 17B through
[[Page 32410]]
the 2013/2014 fishing year until a stock assessment update can be
completed. At that time the Council can decide whether increasing the
combined ACL is appropriate. Further, the Council and NMFS anticipate a
large increase in the allowable catch when the stock is rebuilt in
2016. Regulatory Amendment 9 to the FMP and its implementing final rule
(76 FR 34892, June 15, 2011) reduced the recreational bag limit from 15
fish to 5 fish per person. The recreational bag limit was not the
subject of the proposed rule to implement Amendment 18A; and therefore,
the comments related to the recreational bag limit are beyond the scope
of this rulemaking.
Comment 7: One commenter stated it is incorrect for NMFS to
partially attribute the early ACL closures in the black sea bass
segment of the snapper-grouper fishery to shifting effort from other
more heavily regulated species. The commenter states that anglers who
would normally target species such as red snapper, for which harvest is
now prohibited in the exclusive economic zone (EEZ), are not likely to
shift their fishing effort to black sea bass. The commenter suggested
effort would likely shift towards groupers, mutton snapper, or some
other large fish species, all of which are legal to harvest June
through October.
Response: The rebuilding black sea bass population, which has led
to increased catch per unit effort, is likely a more significant
contributor to the ACLs being met early in the fishing season than
effort shifting during the past 2 fishing years. However, during the
initial development of Amendment 18A, the black sea bass commercial
sector of the snapper-grouper fishery was open during seasonal closures
for other species (vermillion snapper and shallow-water groupers) and
total prohibitions on other species (red snapper). This scenario is
likely to have caused some level of effort shifting to black sea bass.
Additionally, the Council determined that management restrictions
placed on other snapper-grouper species could cause further effort
shifting to black sea bass in the South Atlantic.
Comment 8: One commenter recommends that each state be assigned its
own black sea bass quota based on historical landings, and argues that
the Council process is no longer effective for the successful
management of black sea bass because it does not allow for state-by-
state quotas. One commenter suggests that the Council manage black sea
bass off the coast of Florida separately from the other states in the
South Atlantic, and another commenter suggests that the Council manage
black sea bass off the coast of North Carolina separately from the
other states in the South Atlantic. One commenter recommends the
creation of separate ACLs for the two gear components of the commercial
black sea bass sector; namely, an ACL for the pot component and an ACL
for the hook-and-line component.
Response: The Council has discussed state-by-state quotas several
times in reference to various fish species including black sea bass.
However, enforcement of different state quotas or ACLs along state
boundary lines is likely to be very difficult. Additionally,
administrative difficulties associated with monitoring very small state
ACLs have prevented the Council from endorsing state-by-state quotas as
a management tool. Implementing gear specific ACLs for the pot and
hook-and-line components of the commercial black sea bass sector would
have similar issues, and enforcement of these separate component ACLs
would be difficult if fishermen used both gear types on one vessel.
Again, monitoring these smaller component ACLs would be
administratively difficult. However, the Council will continue to
discuss these issues and explore options for implementation of state
ACLs and separate gear ACLs as quota monitoring capabilities improve
over time.
The Council process is effective in managing the black sea bass
stock in the South Atlantic. In 2005, a stock assessment indicated that
black sea bass in the South Atlantic was still overfished and
undergoing overfishing. Through the Council process a rebuilding plan
was implemented and the most recent stock assessment indicates that
this stock is no longer overfished and is on track to be rebuilt by
2016.
Comment 9: One commenter recommends a recreational tag program
where recreational anglers are issued a pre-set number of tags (similar
to North Carolina swan tags) that can be used to harvest black sea bass
throughout the year. The commenter believes that a tag system for black
sea bass would allow recreational fishermen to participate in the black
sea bass segment of the snapper-grouper fishery throughout the year,
and could improve recreational data for black sea bass. One commenter
recommends that NMFS use game wardens to perform dockside checks to
gather recreational harvest data, or have state game wardens fill out
catch reports because recreational fishermen may not accurately report
their catch during dockside and phone interviews.
Response: The suggestion of tag limits to allow participation
throughout the year or improve data collection, and the use of game
wardens were not the subject of the proposed rule to implement
Amendment 18A; the purpose of Amendment 18A is to address overcapacity
in the black sea bass segment of the snapper-grouper fishery and
therefore, the comments related to tag limits and game wardens are
beyond the scope of this rulemaking. However, the Council is not
precluded from considering a fish tag program or other ways to collect
data in the future.
Comment 10: One commenter is concerned the increasing rate of
recreational harvest of black sea bass is shrinking the allocation for
the commercial sector. The same commenter recommends establishing a
control date using a year when commercial and recreational harvest were
closer to being equal and implementing a Federal recreational fishing
permit with reporting requirements.
Response: As noted in response to Comment 6 above, the Council
considered modifying the combined commercial and recreational ACL in
Amendment 18A but chose to maintain the combined ACL established in
Amendment 17B until a stock assessment update is completed. These ACLs
are based on the 57 percent recreational/43 percent commercial
allocation established in Amendment 13C to the FMP (71 FR 55096,
September 21, 2006), which used historical landings data from 1999-
2003. The Council did not consider changing this allocation formula in
Amendment 18A.
The Council recommended a control date of December 4, 2008, for the
black sea bass pot segment of the snapper-grouper fishery (74 FR 7848,
February 20, 2009) based on concerns about a potential increase in the
number of participants in the fishery that may result because of
increased regulations on other species in the snapper-grouper complex.
However, the Council did not use the December 4, 2008 control date
because they decided that the eligibility criteria should give more
weight to present participation in the fishery. The Council's
eligibility criteria included average annual historical landings of at
least 2,500 lb (1,134 kg), round weight [2,118 lb (961 kg), gutted
weight] between January 1, 1999, and December 31, 2010, in addition to
having some (at least 1 1b (0.4 kg)) reported black sea bass landings
between January 1, 2008, and December 31, 2010.
A recreational permit program for private recreational anglers was
also not
[[Page 32411]]
the subject of the proposed rule implementing Amendment 18A, and
therefore, the comments related to a recreational permit program are
beyond the scope of this rulemaking. However, this does not preclude
the Council from considering such a program in the future.
Comment 11: Two commenters state that the Council should declare
its long-term objectives for the black sea bass commercial sector in
order to establish reasonable allocations. Additionally, one commenter
states that NMFS is disproportionately swayed by environmental
organizations in their precautionary approach to managing black sea
bass, and NMFS does not adequately take into account the concerns of
the recreational sector when making decisions.
Response: The Council's long-term objective for the commercial
black sea bass sector within the snapper-grouper fishery is to achieve
the optimum yield (OY) for the resource. The Council did not consider
changing the commercial and recreational allocations in Amendment 18A.
However, the Council did consider minimizing adverse socioeconomic
impacts to the recreational and commercial black sea bass sectors when
developing the management measures contained in Amendment 18A and this
final rule.
Throughout the development of Amendment 18A and this rulemaking,
the Council and NMFS considered input from all stakeholders. No one
organization or entity was given a disproportionate influence in public
participation during the Council and rulemaking process.
Comment 12: One commenter states that NMFS should allocate fewer
funds to the Council's advisory panels (APs) and re-allocate those
funds to law enforcement because the APs do not function adequately.
Response: This comment is beyond the scope of this rulemaking and,
therefore, is not addressed here.
Comment 13: One commenter supports a mid-August to mid-December
seasonal closure if NMFS chooses to implement a seasonal closure. These
months are considered the slowest time of year for the for-hire sector
in the state of Florida, and any closure that would include the months
of May through July is discouraged because black sea bass are one of
the only species available when bottom water off the Florida coast
cools in the summer. One commenter recommended changing the opening
date of the black sea bass component of the snapper-grouper fishery to
coincide with the opening of the vermilion snapper fishing season,
which is July 1, in order to reduce the directed targeting of black sea
bass during the month of June.
Response: The Council only considered seasonal closures during the
black sea bass spawning season, which is March through May. The Council
chose not to implement a spawning season closure for black sea bass
based on information that indicated black sea bass do not have
increased vulnerability during the spawning season like other snapper-
grouper species, such as shallow-water groupers. Additionally,
Amendment 18A states that peak spawning for black sea bass occurs at
different times of the year in different areas of the South Atlantic,
ranging from late winter/early spring off Georgia and Florida to
primarily spring off North Carolina and South Carolina. The lack of a
spawning season closure should not have a negative impact on spawning
of black sea bass. The Council could revisit options for black sea bass
seasonal closures in the future.
Amendment 13C to the FMP (71 FR 55096, September 21, 2006)
established a June 1 start date for the black sea bass fishing year for
both the commercial and recreational sectors with the intent that, if a
closure should occur, it would most likely coincide with the black sea
bass spawning season. The Council again considered a change in the
black sea bass fishing year as a possible means to extend the black sea
bass season during the development of Regulatory Amendment 9 to the FMP
(76 FR 34892, June 15, 2011), although they decided not to change the
starting date for the fishing year at that time. Furthermore, the
Council considered two 6-month fishing seasons (June-November and
December-May) for black sea bass in Regulatory Amendment 9. However,
NMFS disapproved this action due to concerns this action could result
in the presence of numerous vertical black sea bass pot buoy lines
within the endangered northern right whale migration route during the
time of year when the whales are transiting off the Southeast coast.
The Council recognizes that the timing of the opening and closing
dates of the fishing season affects South Atlantic states differently.
For this reason, the Council has discussed the possibility of state-by-
state quotas for black sea bass and could consider such a regional
approach to management in a future amendment. Additionally, the
Snapper-Grouper AP has expressed its support for this type of a
regional approach to the management of black sea bass.
Comment 14: Four commenters state that an in-season closure of the
black sea bass segment of the snapper-grouper fishery during the winter
is not an appropriate management measure because the winter months are
the time when black sea bass are most prolific off the coast of North
Carolina, and fishing during the winter would help maximize
profitability of for-hire operations.
Response: Regulations implementing Amendment 17B included AMs for
black sea bass to ensure that the ACL is not exceeded and to correct
for an ACL overage should one occur. One component of the system of AMs
implemented through Amendment 17B is that the recreational sector will
close when the recreational sector ACL is met or projected to be met,
but it only applies if the stock is overfished. Regardless of
overfished status, the ACL would be reduced by the amount of the
overage in the following year. The Council determined that an in-season
closure is needed for the recreational sector regardless of the
overfished status because catches have increased for black sea bass as
the stock rebuilds. Thus, the overage could be very large, and a
substantial reduction in the ACL could occur in the following year if
there is no in-season closure of black sea bass. Therefore, the Council
selected the alternative that provides the RA authority to close the
recreational sector when the ACL is met or projected to be met
regardless of the overfished status of the stock. The timing of a
commercial or recreational in-season closure will depend on the fishing
effort and when landings reach the appropriate level to trigger the
AMs.
Comment 15: Two recreational anglers state that the two main issues
that negatively impact the black sea bass stock are inadequate Federal
management and continuing to allow the use of black sea bass pots.
Response: For reasons articulated in Amendment 4 to the FMP, black
sea bass pots are an allowable and appropriate gear type for black sea
bass. The final rule implementing Amendment 4 to the FMP contained a
prohibition on the use of fish traps in the South Atlantic EEZ based on
concerns related to ghost fishing by lost traps, habitat damage,
enforcement difficulties, and bycatch mortality issues. Page 71 of
Amendment 4 outlines the rationale for the Council's choice to prohibit
all fish traps, except black sea bass pots, north of 28[deg]35.1' N
latitude because black sea bass pot construction specifications make
them highly selective for black sea bass, and bycatch is minimal.
Federal management of black sea bass includes a rebuilding plan and
commercial and recreational ACLs and
[[Page 32412]]
AMs. Currently, when the commercial ACL is reached or projected to be
reached, commercial harvest and sale of the species is prohibited and
the black sea bass pots must be removed from the water. This rule
implements an endorsement program that limits the number of commercial
permit holders allowed to fish for black sea bass with pot gear. This
rule also limits the number of black sea bass pot tags issued to each
endorsement holder each permit year; specifies a commercial trip limit;
increases the commercial minimum size limit; and requires that all
black sea bass pots be brought back to shore at the conclusion of each
trip. The Council and NMFS believe that these measures, together with
the existing measures, comprise an appropriate conservation and
management program for black sea bass in the South Atlantic.
Comment 16: Two commenters support the actions contained in
Amendment 18A that update the rebuilding plan for black sea bass based
on the most recent stock assessment. One commenter states that the
rebuilding strategy should be based upon a constant fishing mortality
rate, rather than a constant catch rate.
Response: NMFS agrees that the actions updating the rebuilding plan
based on the most recent stock assessment are appropriate.
The Council considered various rebuilding plans based on either a
constant fishing mortality rate or on a constant catch rate.
Originally, the Council chose to define a rebuilding strategy for black
sea bass that maintains a constant fishing mortality rate throughout
the remaining years of the rebuilding timeframe, which would allow the
greatest amount of harvest possible, while still having a 50 percent
chance of rebuilding by 2016. However, at its December 2011 meeting,
the Council determined a more conservative rebuilding strategy
alternative that incorporates a higher probability of rebuilding by the
start of the 2016/2017 fishing year is more appropriate for the stock.
Therefore, the preferred rebuilding strategy alternative was changed
from a constant fishing mortality rate to a rebuilding strategy that
would hold catch at the current level for the 2012/2013 and 2013/2014
fishing years, and then change to a constant catch rebuilding strategy.
The Council's preferred rebuilding strategy has a 66 percent chance of
rebuilding the stock by 2016.
Comment 17: A number of commenters expressed concerns regarding the
eligibility criteria for the black sea bass pot endorsement. Two
commenters oppose the landings qualification because it will exclude
some fishermen who have invested in the black sea bass commercial
sector of the snapper-grouper fishery. Another commenter believes too
many Unlimited South Atlantic Snapper-Grouper Permit holders will
qualify for the endorsement. Two commenters are concerned that the
endorsement program favors older fishermen with a more established
catch history for black sea bass. One commenter states that the
Councils choice of qualifying criteria for the endorsement program is
not fair and equitable.
Response: The objective of the black sea bass endorsement program
is to reduce the rate of harvest and limit the number of the
participants in the black sea bass pot segment of the snapper-grouper
fishery to curtail derby fishing conditions, which have caused the
commercial fishing season to close early for the past 3 fishing years.
In determining which eligibility criteria were most appropriate, the
Council considered this objective and the requirements for establishing
a limited access system set forth in section 303(b)(6) of the Magnuson-
Stevens Act (16 U.S.C. 1853(b)(6)), which include present participation
in the fishery and historical fishing practices in, and dependence on
the black sea bass segment of the snapper-grouper fishery, and the fair
and equitable distribution of fishing privileges.
Regarding the number of permit holders who will qualify for the
endorsement, prior to the Council finalizing Amendment 18A at its
December 2011 meeting, the preferred endorsement eligibility criteria
required that fishermen have average annual historical landings greater
than 3,500 lb (1,588 kg), round weight [2,966 lb (1,345 kg), gutted
weight] between January 1, 1999, and December 31, 2010. Under the
3,500-lb (1,588-kg), round weight criterion, 24 fishery participants
would be eligible to receive black sea bass pot endorsements.
After reviewing public comments during its December 2011 meeting,
the Council determined that limiting the number of black sea bass pot
endorsements to 24 participants would eliminate too many fishermen from
the black sea bass pot segment of the snapper-grouper fishery who had
historically fished large quantities of black sea bass with pot gear.
Therefore, the Council chose to change its preferred eligibility
criteria to average annual historical landings of at least 2,500 lb
(1,134 kg), round weight [2,118 lb (961 kg), gutted weight] between
January 1, 1999, and December 31, 2010, in addition to having some (at
least 1 1b (0.4 kg)) reported black sea bass landings between January
1, 2008, and December 31, 2010. This addressed both historical fishing
practices as well as current participation in the black sea bass pot
segment of the snapper-grouper fishery. Applying these new criteria
will result in the issuance of 31 endorsements. The Council determined
that this resulted in the fair and equitable distribution of fishing
privileges.
Comment 18: Two commenters recommend that the Council allow
management measures such as the commercial trip limit and the limit on
the number of black sea bass pot tags issued to each permit holder each
permit year, to work before reducing capacity in the pot segment of the
fishery through an endorsement program.
Response: As noted in the response to comment 17, the objective of
the black sea bass endorsement program is to reduce the rate of harvest
and limit the number of the participants in the black sea bass pot
segment of the snapper-grouper fishery to curtail derby fishing
conditions, which have caused the commercial fishing season to close
early for the past 3 fishing years. The Council does not believe that a
commercial trip limit and limitation on the number of black sea bass
pots alone will be sufficient to ease derby fishing conditions.
Comment 19: One commenter states that only two black sea bass pot
fishermen in the state of Florida would qualify for the endorsement.
Response: NMFS estimates that six fishermen from Florida
(identified by the address on record with the NMFS Permits Office) will
qualify for a black sea bass endorsement.
Comment 20: One commenter suggests that a catch share program for
black sea bass is a more appropriate means of managing the commercial
sector rather than an endorsement program. The commenter cites the need
to provide black sea bass to consumers year round and prevent market
gluts when the black sea bass season opens.
Response: This comment is beyond the scope of this rulemaking.
However, the Council previously considered an action to establish a
catch share program for black sea bass in Amendment 21 to the FMP but
tabled that amendment due to lack of public support. The Council may
decide to again consider a catch share program for black sea bass in
the future.
Comment 21: Two commenters support the endorsement program appeals
process included in Amendment 18A.
[[Page 32413]]
Response: NMFS agrees that setting aside a period of time for those
who feel they may have been inappropriately excluded from the black sea
bass pot endorsement program to appeal their exclusion from the program
is important and consistent with appeals processes for limited access
programs implemented by NMFS.
Comment 22: Three commenters support limiting the number of black
sea bass pot tags issued to each endorsement holder per permit year to
35.
Response: NMFS agrees that limiting the number of black sea bass
pot tags issued to each endorsement holder to 35 tags per permit year
will be an effective means of reducing the rate of harvest of black sea
bass in the commercial sector, improve in-season management of the
species, reduce the amount of vertical-line gear in the water to reduce
entanglement risks to protected species in the area, reduce the chance
that pots could be lost and that ghost fishing could occur, and limit
overall effort in the black sea bass pot segment of the snapper-grouper
fishery.
Comment 23: Two commenters support the provision to require black
sea bass traps to be brought back to shore at the end of each trip. One
commenter opposes this provision because some fishermen may fish
differently in other regions of the South Atlantic and one commenter
opposes this provision because the same is not required for spiny
lobster traps, which are fished in much greater abundance than black
sea bass pots. One commenter states that ghost fishing can be addressed
through the use of improved biodegradable escape panels. This same
commenter is concerned that traps would be required to be pulled from
the water during foul weather events.
Response: Currently, black sea bass fishermen can leave black sea
bass pots in the water for the duration of the commercial fishing
season. Although approximately 62 percent of black sea bass pot
fishermen currently bring their black sea bass pots back to shore at
the conclusion of each trip, others may leave untended gear in the
water for the entire season. Allowing this practice to continue would
perpetuate the problem of ghost fishing by lost traps.
However, ghost fishing by lost black sea bass pots is not the only
rationale for requiring that the pots be brought back to shore at the
end of every trip. The longer the black sea bass pots remain in the
water the greater the risk of lost pots, unintended bycatch of black
sea bass, and the amount of vertical-line gear in the water. This is
true regardless of where black sea bass pot fishing takes place within
the South Atlantic Region.
Weather is always a factor that must be considered in planning
fishing trips. NMFS believes that fishers will make informed decisions
about when to fish and when to end a trip and pull traps from the
water.
The Council recognized that there are similar concerns with spiny
lobster traps and addressed the issue of removing derelict spiny
lobster traps in Amendment 10 to the Spiny Lobster FMP (76 FR 75488,
December 2, 2011).
Comment 24: Four commenters support the 1,000-lb (454-kg), gutted
weight, commercial trip limit for black sea bass.
Response: NMFS supports the 1,000-lb (454-kg), gutted weight,
commercial trip limit for black sea bass as a means of extending the
commercial fishing opportunities further into the fishing year, while
still allowing commercial black sea bass pot fishermen to have
economically profitable trips.
Comment 25: Two commenters support requiring selected for-hire
vessels to report landings information electronically.
Response: NMFS supports the requirement that selected for-hire
(both charter and headboat) vessels report landings information
electronically on a weekly or daily basis. Currently, selected charter
vessels are required to report on a weekly basis, and selected headboat
vessels are required to report at the end of each month. Increased
reporting frequency for selected for-hire vessels will improve in-
season management of the recreational sector for snapper-grouper.
Comment 26: Four commenters support increasing the commercial and
recreational minimum size limits for black sea bass. Several commenters
noted a disparity between commercial and recreational restrictions on
fishing for black sea bass. Specifically, several commenters oppose
increasing the recreational minimum size limit without increasing the
commercial minimum size limit to the same size. One commenter states
that the increase of the recreational minimum size limit is too large
and would guarantee increased discards. Two commenters state the
recreational minimum size limit should be 12 inches (30 cm), TL. Two
commenters oppose the use of minimum size limits as a management
measure for black sea bass.
Response: NMFS is increasing the minimum size limit for black sea
bass in the commercial sector from 10 inches (25 cm), TL, to 11 inches
(28 cm), TL, and in the recreational sector from 12 inches (30 cm), TL,
to 13 inches (33 cm), TL. Public hearing comments were divided on the
usefulness of increasing minimum size limits for black sea bass. The
Snapper-Grouper AP supported increasing the minimum size limits to slow
the rate of harvest of black sea bass. The SSC also supported
increasing the recreational and commercial black sea bass minimum size
limits because larger fish are economically more valuable.
The Council determined that it was unnecessary for the commercial
and recreational minimum size limits to be the same because the
commercial and recreational sectors for black sea bass are managed
differently. The commercial and recreational sectors are each allocated
their own portion of the allowable catch and each sector will close
when their respective ACLs are met or are projected to be met.
The most recent stock assessment for black sea bass (SEDAR 25)
indicates release mortality of black sea bass is very low (7 percent
for hook-and-line; 1 percent for black sea bass pot) if fish are
returned to the water quickly. The Council chose an 11-inch (27.9 cm)
size limit for the commercial sector because pots catch a large number
of fish and the Council was concerned that a substantial increase in
the minimum size limit for the commercial sector could cause an
increase in dead discards if there was an increase in the time
undersized black sea bass were out of the water. The current minimum
size limit in the commercial sector is 10 inches (25 cm), TL, and the
2-inch (5-cm) back panel of the pots culls out a large portion of fish
less than 11-inches (28-cm), TL.
Recreational sector participants use hook-and-line gear, which
generally catches one or two fish at a time. Therefore, regulatory
discards in the recreational sector are more likely to be released
quickly and alive, when compared to the commercial sector if there are
large numbers of undersized fish to cull out.
Comment 27: Several commenters oppose implementing a 1,000-lb (454-
kg), gutted weight, commercial trip limit, while the recreational
sector is limited to only 5 fish per person per day.
Response: The Council did not address the recreational bag limit
for black sea bass in Amendment 18A. The 5-fish bag limit was
implemented through Regulatory Amendment 9 in 2011. Previously, the
commercial sector had no trip limit, which contributed to derby fishing
conditions that negatively affect profitability and safety of
fishermen. The 1,000-lb (454-kg), gutted weight, trip limit is expected
to reduce
[[Page 32414]]
the rate of harvest and help constrain harvest to the ACL.
Comment 28: One commenter states that commercial trip limits and
the requirement that pots be brought to shore each day is not necessary
to reduce the risk of right whale interactions with black sea bass
pots. This commenter believes that gear modifications could reduce the
risk of interactions with right whales and notes that there has never
been a documented interaction between black sea bass pot gear and right
whales.
Response: NMFS completed a biological opinion on the South Atlantic
snapper-grouper fishery on June 7, 2006. The biological opinion
concluded that the continued authorization of the snapper-grouper
fishery was not likely to adversely affect marine mammals, in part,
because there has never been a documented interaction between black sea
bass pot gear and large whales in the South Atlantic. However, for a
majority of large whale entanglements, the actual fishery involved in
the interaction cannot be determined and entanglements in trap gear
similar to black sea bass pots have occurred in the South Atlantic.
Thus, there is the risk of large whale entanglements in black sea bass
pot gear.
The management measures contained in Amendment 18A, including the
commercial trip limit and the requirement to return black sea bass pot
gear to shore at the conclusion of each trip, lessen that risk. The
Atlantic Large Whale Take Reduction Team (ALWTRT) has identified
reducing the entanglement of North Atlantic right whales in vertical
lines (i.e., trap lines), particularly in the Southeast during the
winter calving season (November-April), as a conservation priority. As
part of their objective of large whale conservation, the ALWTRT may
consider the use of modified vertical line gear that decreases the risk
of entanglement of large whales.
Classification
The Regional Administrator, Southeast Region, NMFS has determined
that this final rule is consistent with the FMP, Amendment 18A, other
provisions of the Magnuson-Stevens Act, and other applicable law.
The Council and NMFS prepared a final environmental impact
statement (FEIS) for Amendment 18A. The FEIS was filed with the EPA on
February 10, 2012. A notice of availability was published on February
17, 2012 (77 FR 9652). In partially approving Amendment 18A, NMFS
issued a Record of Decision identifying the selected alternatives. A
copy of the record of decision (ROD) is available from NMFS (see
ADDRESSES).
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
A final regulatory flexibility analysis (FRFA) was prepared. The
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a
summary of the significant economic issues raised by public comments,
NMFS' responses to those comments, and a summary of the analyses
completed to support the action. The FRFA follows.
No public comments specific to the IRFA were received and,
therefore, no public comments are addressed in this FRFA. However,
several comments with socioeconomic implications were received and are
addressed in the Comments and Responses section in the responses to
comments 2, 6, and 17. No changes in the final rule were made
in response to public comments.
NMFS agrees that the Council's choice of preferred alternatives
would best achieve the Council's objectives while minimizing, to the
extent practicable, the adverse effects on fishers, support industries,
and associated communities. The preamble to the final rule provides a
statement of the need for and objectives of this rule, and it is not
repeated here.
The Magnuson-Stevens Act provides the statutory basis for this
final rule. No duplicative, overlapping, or conflicting Federal rules
have been identified.
This final rule will introduce certain changes to current
reporting, record-keeping, and other compliance requirements. In
particular, a sample of the 1,985 vessels with for-hire snapper-grouper
permits would be required to electronically report their harvest.
Because all headboats are currently subject to logbook reporting, the
incremental professional skill needed under the new requirement would
be relatively small. The incremental professional skill required of
charterboats would be relatively higher because only about 10 percent
of charter captains are currently contacted on a weekly basis to
collect trip level information.
NMFS expects this final rule to directly affect commercial fishers
and for-hire operators. The Small Business Administration established
size criteria for all major industry sectors in the U.S. including fish
harvesters and for-hire operations. A business involved in fish
harvesting is classified as a small business if independently owned and
operated, is not dominant in its field of operation (including its
affiliates), and its combined annual receipts are not in excess of $4.0
million (NAICS code 114111, finfish fishing) for all of its affiliated
operations worldwide. For for-hire vessels, other qualifiers apply and
the annual receipts threshold is $7.0 million (NAICS code 713990,
recreational industries).
From 2005-2010, an annual average of 247 vessels with valid permits
to operate in the commercial snapper-grouper fishery landed black sea
bass, generating dockside revenues of approximately $1.103 million
(2010 dollars). Each vessel, therefore, generated an average of
approximately $4,465 in gross revenues from black sea bass. Vessels
that operate in the black sea bass segment of the snapper-grouper
fishery may also operate in other segments of the snapper-grouper
fishery, the revenues of which are not reflected in these totals.
Based on revenue information, all commercial vessels affected by
the rule can be considered small entities.
From 2005-2010, an annual average of 1,985 vessels had valid
permits to operate in the for-hire sector of the snapper-grouper
fishery, of which 85 are estimated to have operated as headboats. The
for-hire fleet consists of charterboats, which charge a fee on a vessel
basis, and headboats, which charge a fee on an individual angler (head)
basis. The charterboat annual average gross revenue (2010 dollars) is
estimated to range from approximately $62,000-$84,000 for Florida
vessels, $73,000-$89,000 for North Carolina vessels, $68,000-$83,000
for Georgia vessels, and $32,000-$39,000 for South Carolina vessels.
For headboats, the corresponding estimates are $170,000-$362,000 for
Florida vessels, and $149,000-$317,000 for vessels in the other states.
Based on these average revenue figures, all for-hire operations
that would be affected by the rule can be considered small entities.
Some fleet activity, i.e., multiple vessels owned by a single
entity, may exist in both the commercial and for-hire snapper-grouper
sectors to an unknown extent, and NMFS treats all vessels as
independent entities in this analysis.
NMFS expects the final rule to directly affect all federally
permitted commercial vessels harvesting black sea bass and for-hire
vessels that operate in the South Atlantic snapper-grouper fishery. All
directly affected entities have been determined, for the purpose of
this analysis, to be small entities. Therefore, NMFS determines that
this final rule will affect a substantial number of small entities.
NMFS considers all entities expected to be affected by the rule as
small
[[Page 32415]]
entities, so the issue of disproportional effects on small versus large
entities does not arise in the present case.
Setting the ACL, ABC, and OY equal to one another would provide an
economic environment that would allow small entities to maintain or
increase their profits by way of maximizing their use of the black sea
bass resource.
Establishing a black sea bass pot endorsement program would likely
result in profit increases to those who would qualify and profit
decreases to those who would not. Out of the 50 to 60 individuals that
currently fish for black sea bass using pots, approximately 31 would
qualify for the endorsement. Although those who would not qualify could
still fish for black sea bass using other gear types, their harvest
performance could suffer. Because a limited number of individuals could
fish for black sea bass using pots under the endorsement program, the
fishing season for the commercial sector would likely remain open
longer than it has in the last few years. This could cause overall
industry profits to increase or at least remain stable.
Establishing an appeals process for fishermen initially excluded
from the black sea bass pot endorsement program would provide
opportunities for those qualified to receive their endorsement. Given
the narrow basis for appeals, only a limited number of appeals would
likely be successful.
Limiting the number of pots per vessel would likely decrease the
short-term profits of small entities. The maximum number of 35 pots
allowed per vessel is lower than the current average of 45 pots per
vessel fished, and would affect about 48 percent of the trips. Vessels
that have historically used more than 35 pots per trip would generate
lower revenues per trip or higher overall fishing costs to maintain the
same overall revenues. However, because the endorsement program would
limit the number of participants in the black sea bass pot segment of
the snapper-grouper fishery, fishermen who would be adversely affected
by the limit on the number of pot tags per vessel could take more trips
to recoup their losses. Thus, overall industry profits, which are
expected to increase or remain stable under the endorsement program,
may remain unaffected by the potential losses to fishermen adversely
affected by the limit on pot tags.
Requiring that black sea bass pots be brought back to shore at the
conclusion of each trip as a means to reduce bycatch may restrict the
fishing operations of some vessels. Its effects on profits are
relatively unknown, but NMFS notes that in approximately 65 percent of
trips, pots are brought back to shore. If vessels undertake longer
trips to allow their pots to fish longer, costs could rise because no
restriction exists on the length of each trip. If this practice results
in maintaining the same revenues per trip, vessel profits could
decrease. If, however, this requirement results in less ghost fishing
and less interaction with protected species, future restrictions
imposed on the fishery may lessen, such that long-term profits of small
entities would remain sustainable.
The recreational AMs, consisting of the in-season harvest and
possession restriction if the recreational ACL is met or projected to
be met and the post-season reduction in the sector's ACL if the
recreational ACL is exceeded in the current year, would likely reduce
the short-term profits of for-hire vessels. Similarly, the commercial
AMs consisting of the in-season prohibition on the purchase and sale of
black sea bass and the post-season reduction in the sector's ACL, would
likely result in profit reductions to the commercial vessels. To the
extent that this provision allows the rebuilding target to be reached
within the rebuilding period, long-term profits to for-hire and
commercial fishing operations would increase. In addition, the
projected increases in the aggregate (commercial and recreational) ACL
under the rebuilding strategy, as long as the prior year's combined ACL
is not exceeded, would tend to negate some or all of the adverse profit
effects of the post-season AM applied to either the commercial or
recreational sector. If either sector, but not both, exceeds its ACL in
the current year, that sector's ACL would be reduced the following
year. The combined commercial and recreational ACL, and therefore the
sector ACLs, would still increase so long as the combined ACL is not
exceeded in the prior year.
Establishing a commercial vessel trip limit of 1,000 lb (454 kg),
gutted weight [1,180 lb (535 kg), round weight], would tend to
adversely affect the catch and revenue per trip of vessels that
generally land over this limit. Based on the 2010-2011 fishing season
data, this alternative would adversely affect approximately 8.4 percent
of trips accounting for a total of about 83,000 lb (37,648 kg), valued
at about $203,000. NMFS notes, though, that this trip limit could
lengthen the fishing season, allowing opportunities for some vessels to
recoup some of their revenue losses for the year. At any rate, NMFS
expects that some of these revenue reductions would filter into the
bottom line of some vessels and potentially the bottom line of the
entire industry. The actual extent of industry profit reduction cannot
be estimated based on available information.
Increasing the recreational minimum size limit from 12 inches (30
cm), TL, to 13 inches (33 cm), TL, could reduce the black sea bass
harvests of headboats from 20.9 percent to 22.6 percent and black sea
bass harvests of other fishing modes (i.e. charterboats and private
vessels) from 18.8 percent to 20.3 percent. These harvest reductions
could lead to trip cancellations because the quality of the fishing
experience would decrease. However, these harvest reductions could be
recouped through additional trips with a lengthened season. The actual
effects on for-hire vessel profits depend on whether there would be
trip cancellations, which is uncertain based on available information.
Increasing the commercial size limit from 10 inches (25 cm), TL, to
11 inches (28 cm), TL, could reduce the black sea bass harvests of
commercial vessels by slightly over 9 percent. Actual reductions in
harvest would partly depend on whether vessels take additional or
longer trips to recoup potential harvest losses. Although additional or
longer trips would maintain total revenues, either by maintaining the
same harvest or by generating more revenue per fish since a bigger
black sea bass generally commands a higher price, costs would also
increase. The net effects on per vessel and industry profits cannot be
determined with available information.
Requiring selected for-hire vessels to report electronically would
affect some of the 1,985 vessels with for-hire snapper-grouper permits.
This requirement would add costs to these vessels' operations. The
incremental costs to selected headboats would not likely be as much as
for charterboats because headboats are currently subject to logbook
reporting. Charterboats are not currently subject to logbook reporting
although NMFS now routinely contacts some charter captains to collect
trip level information. The resulting effects to for-hire vessel
profits are indeterminable.
Amendment 18A contains other provisions that could eventually have
effects on the operations of small entities. First, modifying the
rebuilding strategy and setting the ABC for black sea bass would retain
the current economic status of small entities for the next 2 years of
the rebuilding period. Thereafter, profits to small entities may
increase with a shift from a constant catch strategy to a constant
fishing mortality strategy that would allow the
[[Page 32416]]
ABC to increase over time depending on the results of future stock
assessments. Second, as part of modifying the rebuilding strategy,
overfishing for black sea bass will be determined on an annual basis
using the maximum fishing mortality threshold and the overfishing
limit. This provision alone would not affect the profits of small
entities. Third, an ACT for the recreational sector would account for
management uncertainty in the recreational sector, related in part to
the timely accounting of this sector's harvests. Currently, this ACT
does not trigger application of AMs, so short-term profits to small
entities would remain unaffected. If the Council decides in the future
to use the ACT as the trigger for application of AMs, profits to small
entities may be adversely affected. However, because this measure is
designed to help ensure that the rebuilding strategy stays on track,
long-term profitability would be sustainable.
Five alternatives, including the preferred alternative, were
considered for modifying the rebuilding strategy and ABC. The preferred
alternative has a relatively high probability of rebuilding the stock
so that it is more likely to result in ABC increases after the first 2
years. The actual ABC levels after 2 years are currently unknown but
would be specified based on future stock assessments. The first
alternative, the no action alternative, would maintain the constant
catch rebuilding strategy and current ABC throughout the rebuilding
timeframe. This alternative has the same probability of rebuilding the
stock as the preferred alternative. Because it would maintain the same
ABC over time it would likely result in lower economic benefits than
the preferred alternative. The second alternative would establish a new
constant catch rebuilding strategy with a higher (than current) ABC
throughout the remaining years of the rebuilding timeframe. Relative to
the preferred alternative, the second alternative would provide for a
higher ABC for 2 years and a lower or higher ABC thereafter depending
on the results of future stock assessments. Thus, the sum of economic
benefits over the rebuilding timeframe under this alternative could be
lower or higher than that of the preferred alternative, depending on
the preferred alternative's actual ABC level. It may only be noted
that, being a constant catch strategy, this alternative would likely
lead to the ACL being met sooner as the fish stock rebuilds, resulting
in applications of in-season and post-season AMs. The third
alternative, with two sub-alternatives, would establish a constant
fishing mortality rebuilding strategy throughout the remaining years of
the rebuilding timeframe. Under the first sub-alternative, the fishing
mortality rate would be 75 percent of the fishing mortality at MSY (75-
percent FMSY), and under the second sub-alternative, the
fishing mortality rate that would rebuild the stock by 2016
(FREBUILD by 2016). These two sub-alternatives would provide
for higher ABCs than the preferred alternative during the first 2
years, and thus, higher economic benefits in the short term. These two
sub-alternatives would also result in higher economic benefits in the
long term if the preferred alternative's future ABCs were not
substantially higher than those of the two sub-alternatives. The fourth
alternative would maintain the current constant catch strategy and ABC
for the next 2 years of the rebuilding timeframe and switch to a
constant fishing mortality strategy at FREBUILD throughout
the remainder of the rebuilding timeframe. This alternative would
provide for the same ABC as the preferred alternative during the first
2 years, but relates to a lower probability of rebuilding the stock to
biomass at MSY. Because this alternative has the same ABCs as the
preferred alternative during the first 2 years and adopts a constant
fishing mortality rebuilding strategy thereafter, it is possible the
two alternatives would result in about the same economic effects over
time.
Four alternatives, including the preferred alternative, were
considered for modifying the ACL for black sea bass. The first
alternative, the no action alternative, would maintain the existing ACL
equal to ABC and OY equal to 75 percent of the fishing mortality at
MSY. This alternative is more restrictive than the preferred
alternative in setting OY as the underlying goal of managing the black
sea bass stock. The second alternative would set the ACL equal to 90
percent of the ABC and the latter equal to OY. The third alternative
would set the ACL equal to 80 percent of the ABC and the latter equal
to OY. These other alternatives would provide for a lower ACL than the
preferred alternative, and thus lower economic benefits as well.
Three alternatives, including the preferred alternative, were
considered for establishing an endorsement program for the black sea
bass pot segment of the snapper-grouper fishery. The first alternative,
the no action alternative, would not establish an endorsement program.
This alternative would continue to allow anyone with an Unlimited or
225-lb (102-kg) Limited Snapper-Grouper Permit to engage in the black
sea bass pot segment of the snapper-grouper fishery. This would
increase the likelihood of the derby-style fishing conditions,
potentially dampening industry profitability. The second alternative
includes seven sub-alternatives, of which one is the preferred sub-
alternative that would require minimum landings of 2,500 lb (1,134 kg),
round weight, to be eligible to participate in the endorsement program.
The first sub-alternative would set the minimum landings at 500 lb (227
kg), round weight; the second sub-alternative, at 1,000 lb (454 kg),
round weight; the third sub-alternative, at 2,000 lb (907 kg), round
weight; the fourth, at 3,500 lb (1,588 kg), round weight; the fifth, at
5,000 lb (2,268 kg), round weight; and, the sixth, at 10,000 lb (4,536
kg), round weight. These sub-alternatives would allow varying numbers
of individuals/entities to qualify for the endorsement: higher landings
requirements would result in fewer qualifiers. The Council's choice of
preferred alternative was based on the assessment that about 30
individuals/entities can be profitably sustained by the black sea bass
pot segment of the snapper-grouper fishery. In this case, sub-
alternatives requiring less than 2,500 lb (1,134 kg), round weight, of
landings for endorsement eligibility would likely result in
unsustainable profits. On the other end, sub-alternatives requiring
higher than 2,500 lb (1,134 kg), round weight, of landings would
severely restrict participation in the fishery although industry
profitability would be more sustainable. In addition, a highly
restrictive endorsement qualification criterion, such as 10,000 lb
(4,536 kg), round weight, would tend to eliminate small scale
operations that have historically characterized the black sea bass pot
segment of the snapper-grouper fishery. The third alternative, with two
sub-alternatives, would require that no South Atlantic state shall have
fewer than two entities qualifying for the endorsement. The first sub-
alternative would set a minimum landings requirement of 1,000 lb (454
kg), round weight, and the second, 2,000 lb (907 kg), round weight.
This alternative, with the sub-alternatives, was intended to allow
participation by all South Atlantic states in the endorsement program.
Since the minimum number of qualifiers from each state would be the
same under this alternative and the preferred alternative, the Council
deemed this third alternative unnecessary.
Three alternatives, including the preferred alternative, were
considered
[[Page 32417]]
for establishing an appeals process for fishermen initially excluded
from the endorsement program. The first alternative, the no action
alternative, would not establish an appeals process. This alternative
has the potential to unduly penalize participants if they were
incorrectly excluded from the endorsement program. The second
alternative is the same as the preferred alternative, except that it
would establish a special board, composed of state directors and
designees, that would review, evaluate, and make individual
recommendations to the RA. This alternative would introduce an
additional administrative burden that may not improve the appeals
process because the only appealable issues are eligibility and
landings.
Five alternatives, including the preferred alternative, were
considered for limiting effort in the black sea bass pot segment of the
snapper-grouper fishery. The first alternative, the no action
alternative, would not limit the number of black sea bass pots deployed
or pot tags issued to holders of snapper-grouper commercial permits.
Among the alternatives, this is potentially the best alternative for
efficient operations in the black sea bass pot segment of the snapper-
grouper fishery. But with no limit on the number of pots, a high
likelihood arises that more pots may be lost and ``ghost fish'' for
black sea bass or other species. In addition, the more pots, the more
vertical lines are in the water, which increases the probability of
interaction with certain protected species. Ghost fishing is likely to
hinder the rebuilding of black sea bass or provide less protection to
other snapper-grouper species subject to a rebuilding strategy. Both
ghost fishing and interactions with protected species could lead to the
implementation of more restrictive measures that would impinge on the
profits of commercial vessels. The second alternative would limit black
sea bass pot tags to 100 per vessel per year; the second alternative,
to 50 per vessel per year; and, the third alternative, to 25 per vessel
per year. These other alternatives differ from the preferred
alternative only in the maximum number of pots deployed or pot tags
issued per vessel, with the higher numbers providing better
opportunities for higher profits per vessel trip. But as noted above,
the higher number of pots, the higher the probability of ghost fishing
and interaction with protected species.
Three alternatives, including the preferred alternative, were
considered for reducing bycatch in black sea bass pots. The first
alternative, the no action alternative, would allow pots to remain in
the water until the commercial quota is reached. This alternative would
not help reduce bycatch in the black sea bass pot segment of the
snapper-grouper fishery. The second alternative would allow fishermen
to leave pots in the water for no more than 72 hours. This alternative
would have about the same effects as the preferred alternative on pot
fishing operations, because most fishing trips for black sea bass using
pots last for less than 3 days. However, it would present a higher
probability for ghost fishing because pots may be left in the water on
short vessel trips or not retrieved during inclement weather.
Three alternatives, including the preferred alternative, were
considered for modifying the AMs for black sea bass. The first
alternative, the no action alternative, would maintain the current
commercial and recreational AMs. The Council concluded that this
alternative was not effective in constraining harvest at or below the
sector ACLs. The second alternative is similar to the preferred
alternative for the recreational sector, except that it would trigger
in-season AMs only if the black sea bass stock is overfished. This
alternative could lead to larger post-season adjustment of the
recreational ACL and thus larger adverse effects on for-hire profits,
particularly if the aggregate ACL is exceeded. Moreover, if overages in
the recreational harvest lead to exceeding the aggregate ACL, the
aggregate ACL would not automatically increase the following year,
resulting in adverse effects on both the commercial and recreational
sectors.
Nine alternatives, including the preferred alternative, were
considered for establishing a commercial trip limit. The first
alternative, the no action alternative, would not establish a
commercial trip limit. In principle, this alternative would likely
provide the most short-term profitability among commercial vessels on a
per trip basis, because commercial vessel operations would remain
unaffected. However, this alternative could lead to lower industry
profitability if harvest rate is not effectively controlled and this
results in a shortened fishing season. The second alternative would
establish a trip limit of 500 lb (227 kg), gutted weight; the third
alternative, 750 lb (340 kg), gutted weight; the fourth alternative,
1,250 lb (567 kg), gutted weight. The fifth alternative would establish
a trip limit of 1,000 lb (454 kg), gutted weight, that would be reduced
to 500 lb (227 kg), gutted weight, when 75 percent of the commercial
ACL is met. The sixth alternative would establish a trip limit of 2,000
lb (907 kg), gutted weight; the seventh, 2,500 lb (1,134 kg), gutted
weight; and, the eighth alternative, 250 lb (113 kg), gutted weight.
NMFS expects that trip limits lower than the preferred alternative of
1,000 lb (454 kg), gutted weight, would lead to larger adverse effects
on per trip profitability and the opposite would occur with higher trip
limits. Based on the Council's assessment, the preferred alternative
would provide the best balance between per trip losses in profits and
higher industry profits from a longer fishing season.
Three alternatives, including two preferred alternatives, were
considered for modifying the commercial and recreational minimum size
limit. The first alternative, the no action alternative, would not
change the commercial or recreational size limit. In principle, this
alternative would provide the best economic environment for both the
commercial and recreational sectors, because their operations would
remain relatively unaffected. However, this alternative would not help
in constraining the rate of harvest which has been increasing in recent
years, leading to early closures of both the commercial and
recreational sectors of the black sea bass segment of the snapper-
grouper fishery. The second alternative includes three sub-alternatives
for commercial size limits, one of which is the preferred sub-
alternative. The second sub-alternative would increase the commercial
size limit from 10 inches (25 cm), TL, to 12 inches (30 cm), TL. This
sub-alternative would lead to relatively larger adverse effects on the
profits of commercial vessels but would also tend to allow a longer
fishing season. However, the Council concluded that this sub-
alternative would not provide the best balance between short-term
profit reductions and profit increases from a longer season. The third
sub-alternative would increase the commercial size limit from 10 inches
(25 cm), TL, to 11 inches (28 cm), TL, in the first year and to 12
inches (30 cm), TL, thereafter. This sub-alternative would eventually
lead to larger adverse effects on the profits of commercial vessels but
would also tend to allow a longer fishing season. However, the Council
concluded that this sub-alternative would not provide the best balance
between short-term profit reductions and profit increases from a longer
season.
Four alternatives, including the preferred alternative, were
considered for improving for-hire data reporting. The first alternative
(the no action alternative) would retain the existing data reporting
systems for the for-hire sector. However, the Council concluded that
modifications to existing
[[Page 32418]]
recreational data collection are necessary to the extent that they
would not be too burdensome on for-hire vessel operations. The second
alternative would require vessels operating with a Federal for-hire
permit to maintain a logbook for discard characteristics (e.g., size
and reason for discarding), if selected. This alternative would provide
better information regarding discards, but would increase costs for
for-hire vessel operations. The third alternative would require that
for-hire landings and catch/effort data be submitted in accordance with
the Atlantic States Cooperative Statistics Program (ACCSP) standards,
using the South Atlantic Fisheries Information System (SAFIS). Although
this alternative has the potential to improve recreational data
collection, it would be costly to for-hire vessels. Therefore, the
Council decided to wait until the new Marine Recreational Information
Program (MRIP) has been in place for some time to determine whether it
would be sufficient for reporting for-hire landings data.
Four alternatives, including the preferred alternative, were
considered for setting the recreational annual catch target (ACT). The
first alternative, the no action alternative, would not set a
recreational ACT, and thus, would not meet the stated objective. The
second alternative would set the recreational ACT equal to 85 percent
of the recreational ACL. The third alternative would set the
recreational ACT equal to 75 percent of the recreational ACL. NMFS
estimates that these two alternatives would result in lower ACTs than
the preferred alternative, so that if an ACT triggers management
actions, these two alternatives would result in larger adverse effects
on the profits of for-hire vessels.
In Amendment 18A, the Council considered several actions for which
the no-action alternative was the preferred alternative.
Three alternatives, including the preferred alternative (no action
alternative), were considered for setting the commercial ACT. The first
alternative would set the commercial ACT equal to 90 percent of the
commercial ACL. The second alternative would set the commercial ACT
equal to 80 percent of the commercial ACL. Because NMFS closely tracks
the commercial landings in-season through a quota monitoring system,
the Council concluded that a commercial ACT as a monitoring tool was
unnecessary.
Five alternatives, including the preferred alternative (no action
alternative), were considered for implementing a spawning season
closure. The first alternative would implement a March 1-April 30
spawning season closure; the second alternative, an April 1-May 31
spawning season closure; the third alternative, a March 1-May 31
spawning season closure; and, the fourth alternative, a May 1-May 31
spawning season closure. These alternatives would result in short-term
profit reductions to commercial and for-hire vessels. Black sea bass do
not form large spawning aggregations and the peak spawning period
occurs at different times of the year across the South Atlantic.
Therefore, short-term profit reductions could persist in the future as
the benefits from a spawning season closure are not well established.
Four alternatives, including the preferred alternative (no action
alternative), were considered for improving commercial data reporting.
The first alternative would require all vessels with Federal snapper-
grouper commercial permits to have an electronic logbook tied to the
vessel's Global Position System onboard the vessel. The second
alternative would provide the option for fishermen to submit their
logbook entries electronically via an electronic version of the logbook
made available online. The third alternative would require submission
of commercial landings and catch and effort data in accordance with the
ACCSP standards, using the SAFIS. These alternatives would introduce
additional cost to commercial fishing operations. In the particular
case of the second alternative, fishermen would be unlikely to opt for
electronic reporting because of its additional cost, thereby rendering
the alternative impractical. The Council decided to address this issue
in the future through a comprehensive amendment for improving data
collection.
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as small entity compliance
guides. As part of the rulemaking process, NMFS prepared a fishery
bulletin, which also serves as a small entity compliance guide. The
fishery bulletin will be sent to all vessel permit holders in the South
Atlantic snapper-grouper fishery.
This final rule contains collection-of-information requirements
subject to the Paperwork Reduction Act (PRA) and which have been
approved by the Office of Management and Budget (OMB) under control
numbers 0648-0603 and 0648-0205. Public reporting burden for the for-
hire sector of the snapper-grouper fishery to submit logbook
information electronically, if selected to do so, is estimated to
average 30 minutes per electronic logbook installation and 1 minute per
weekly download of the weekly logbook information. Public reporting
burden for South Atlantic Unlimited Snapper-Grouper Permit holders to
submit their logbook information if they are appealing their landings
data for a black sea bass pot endorsement is estimated to average 2
hours per response. Public reporting burden for the requirement to
check boxes on the Federal Permit Application Form for a new
endorsement or renewal of the black sea bass pot endorsement is
estimated to average 1 minute per response. Finally, the public
reporting burden for the requirement to check boxes on the Federal
Permit Application Form for black sea bass pot tags (Floy tags) for the
endorsement program is estimated to average 1 minute per response.
These estimates of the public reporting burden include the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection-of-information. Send comments regarding the burden estimate
or any other aspect of the collection-of-information requirement,
including suggestions for reducing the burden, to NMFS and to OMB (see
ADDRESSES).
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
Dated: May 29, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 622 is amended
as follows:
[[Page 32419]]
PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC
0
1. The authority citation for part 622 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 622.4, paragraph (a)(2)(xv) is added and paragraph
(a)(5)(i)(A) is revised to read as follows:
Sec. 622.4 Permits and fees.
(a) * * *
(2) * * *
(xv) South Atlantic black sea bass pot endorsement. For a person
aboard a vessel, for which a valid commercial vessel permit for South
Atlantic snapper-grouper unlimited has been issued, to use a black sea
bass pot in the South Atlantic EEZ, a valid South Atlantic black sea
bass pot endorsement must have been issued to the vessel and must be on
board. A permit or endorsement that has expired is not valid. NMFS will
renew this endorsement automatically when renewing the commercial
vessel permit for South Atlantic snapper-grouper unlimited associated
with the vessel. The RA will not reissue this endorsement if the
endorsement or the commercial vessel permit for South Atlantic snapper-
grouper unlimited is revoked or if the RA does not receive a complete
application for renewal of the commercial vessel permit for South
Atlantic snapper-grouper unlimited within 1 year after the permit's
expiration date.
(A) Initial eligibility. To be eligible for an initial South
Atlantic black sea bass pot endorsement, a person must have been issued
and must possess a valid or renewable commercial vessel permit for
South Atlantic snapper-grouper that has black sea bass landings using
black sea bass pot gear averaging at least 2,500 lb (1,134 kg), round
weight, annually during the period January 1, 1999 through December 31,
2010. Excluded from this eligibility, are trip-limited permits (South
Atlantic snapper-grouper permits that have a 225-lb (102.1-kg) limit of
snapper-grouper) and valid or renewable commercial vessel permits for
South Atlantic snapper-grouper unlimited that have no reported landings
of black sea bass using black sea bass pots from January 1, 2008,
through December 31, 2010. NMFS will attribute all applicable black sea
bass landings associated with a current snapper-grouper permit for the
applicable landings history, including those reported by a person(s)
who held the permit prior to the current permit owner, to the current
permit owner. Only legal landings reported in compliance with
applicable state and Federal regulations are acceptable.
(B) Initial issuance. On or about June 1, 2012, the RA will mail
each eligible permittee a black sea bass pot endorsement via certified
mail, return receipt requested, to the permittee's address of record as
listed in NMFS' permit files. An eligible permittee who does not
receive an endorsement from the RA, must contact the RA no later than
July 1, 2012, to clarify his/her endorsement status. A permittee denied
an endorsement based on the RA's initial determination of eligibility
and who disagrees with that determination may appeal to the RA.
(C) Procedure for appealing black sea bass pot endorsement
eligibility and/or landings information. The only items subject to
appeal are initial eligibility for a black sea bass pot endorsement
based on ownership of a qualifying snapper-grouper permit, the accuracy
of the amount of landings, and correct assignment of landings to the
permittee. Appeals based on hardship factors will not be considered.
Appeals must be submitted to the RA postmarked no later than October 1,
2012, and must contain documentation supporting the basis for the
appeal. The RA will review all appeals, render final decisions on the
appeals, and advise the appellant of the final NMFS decision.
(1) Eligibility appeals. NMFS' records of snapper-grouper permits
are the sole basis for determining ownership of such permits. A person
who believes he/she meets the permit eligibility criteria based on
ownership of a vessel under a different name, for example, as a result
of ownership changes from individual to corporate or vice versa, must
document his/her continuity of ownership.
(2) Landings appeals. Determinations of appeals regarding landings
data for 1999 through 2010 will be based on NMFS' logbook records. If
NMFS' logbooks are not available, the RA may use state landings records
or data for the period 1999 through 2010 that were submitted in
compliance with applicable Federal and state regulations on or before
December 31, 2011.
(D) [Reserved]
(E) Fees. No fee applies to initial issuance of a black sea bass
pot endorsement. NMFS charges a fee for each renewal or replacement of
such endorsement and calculates the amount of each fee in accordance
with the procedures of the NOAA Finance Handbook for determining the
administrative costs of each special product or service. The fee may
not exceed such costs and is specified with each application form. The
handbook is available from the RA. The appropriate fee must accompany
each application for renewal or replacement.
* * * * *
(5) * * *
(i) * * *
(A) An operator of a vessel that has or is required to have a
Commercial Vessel Permit for Rock Shrimp (Carolinas Zone) or a
Commercial Vessel Permit for Rock Shrimp (South Atlantic EEZ).
* * * * *
0
3. In Sec. 622.5, paragraphs (b)(2)(i) and (ii) are revised to read as
follows:
Sec. 622.5 Recordkeeping and reporting.
* * * * *
(b) * * *
(2) * * *
(i) Charter vessels. Completed fishing records required by
paragraph (b)(1)(i) of this section for charter vessels must be
submitted to the SRD weekly, postmarked not later than 7 days after the
end of each week (Sunday). Completed fishing records required by
paragraph (b)(1)(ii) of this section for charter vessels may be
required weekly or daily, as directed by the SRD. Information to be
reported is indicated on the form and its accompanying instructions.
(ii) Headboats. Completed fishing records required by paragraph
(b)(1)(i) of this section for headboats must be submitted to the SRD
monthly and must either be made available to an authorized statistical
reporting agent or be postmarked not later than 7 days after the end of
each month. Completed fishing records required by paragraph (b)(1)(ii)
of this section for headboats may be required weekly or daily, as
directed by the SRD. Information to be reported is indicated on the
form and its accompanying instructions.
* * * * *
0
4. In Sec. 622.37, paragraph (e)(3)(i) is revised to read as follows:
Sec. 622.37 Size limits.
* * * * *
(e) * * *
(3) * * *
(i) Black seas bass. (A) For a fish taken by a person subject to
the bag limit specified in Sec. 622.39(d)(1)(vii)--13 inches (33 cm),
TL.
(B) For a fish taken by a person not subject to the bag limit
specified in Sec. 622.39(d)(1)(vii)--11 inches (28 cm), TL.
* * * * *
0
5. In Sec. 622.40, paragraph (d)(1)(i)(B) is revised and paragraphs
(d)(1)(i)(C) and (D) are added to read as follows:
[[Page 32420]]
Sec. 622.40 Limitations on traps and pots.
* * * * *
(d) * * *
(1) * * *
(i) * * *
(B) A sea bass pot must be removed from the water in the South
Atlantic EEZ and the vessel must be returned to a dock, berth, beach,
seawall, or ramp at the conclusion of each trip. Sea bass pots may
remain on the vessel at the conclusion of each trip.
(C) A sea bass pot must be removed from the water in the South
Atlantic EEZ when the applicable quota specified in Sec. 622.42(e)(5)
is reached. After a closure is in effect, a black sea bass may not be
retained by a vessel that has a sea bass pot on board.
(D) A vessel that has on board a valid Federal commercial permit
for South Atlantic snapper-grouper and a South Atlantic black sea bass
pot endorsement that fishes in the South Atlantic EEZ on a trip with
black sea bass pots, may possess only 35 black sea bass pots per vessel
per permit year. Each black sea bass pot in the water or onboard a
vessel in the South Atlantic EEZ, must have a valid identification tag
issued by NMFS attached. NMFS will issue new identification tags each
permit year that will replace the tags from the previous permit year.
* * * * *
0
6. In Sec. 622.42, paragraph (e)(5) is revised to read as follows:
Sec. 622.42 Quotas.
* * * * *
(e) * * *
(5) Black sea bass--309,000 lb (140,160 kg), gutted weight; 364,620
lb (165,389 kg), round weight.
* * * * *
0
7. In Sec. 622.44, paragraph (c)(8) is added to read as follows:
Sec. 622.44 Commercial trip limits.
* * * * *
(c) * * *
(8) Black sea bass. Until the applicable quota specified in Sec.
622.42(e)(5) is reached, 1,000 lb (454 kg), gutted weight; 1,180 lb
(535 kg), round weight. See Sec. 622.43(a)(5) for the limitations
regarding black sea bass after the applicable quota is reached.
* * * * *
0
8. In Sec. 622.49, paragraph (b)(5) is revised to read as follows:
Sec. 622.49 Annual catch limits (ACLs) and accountability measures
(AMs).
* * * * *
(b) * * *
(5) Black sea bass--(i) Commercial sector. (A) If commercial
landings, as estimated by the SRD, reach or are projected to reach the
quota specified in Sec. 622.42(e)(5), the AA will file a notification
with the Office of the Federal Register to close the commercial sector
for the remainder of the fishing year.
(B) If commercial landings exceed the quota specified in Sec.
622.42(e)(5), the AA will file a notification with the Office of the
Federal Register, at or near the beginning of the following fishing
year to reduce the ACL for that following year by the amount of the
overage in the prior fishing year, unless the SRD determines that no
overage is necessary based on the best scientific information
available.
(ii) Recreational sector. (A) If recreational landings for black
sea bass, as estimated by the SRD, are projected to reach the
recreational ACL of 409,000 lb (185,519 kg), gutted weight; 482,620 lb
(218,913 kg), round weight; the AA will file a notification with the
Office of the Federal Register to close the recreational sector for the
remainder of the fishing year. On and after the effective date of such
a notification, the bag and possession limit is zero. This bag and
possession limit applies in the South Atlantic on board a vessel for
which a valid Federal charter vessel/headboat permit for South Atlantic
snapper-grouper has been issued, without regard to where such species
were harvested, i.e. in state or Federal waters.
(B) If recreational landings for black sea bass, as estimated by
the SRD, exceed the ACL, the AA will file a notification with the
Office of the Federal Register, to reduce the recreational ACL the
following fishing year by the amount of the overage in the prior
fishing year, unless the SRD determines that no overage is necessary
based on the best scientific information available.
* * * * *
[FR Doc. 2012-13342 Filed 5-31-12; 8:45 am]
BILLING CODE 3510-22-P