Federal Register, Volume 75 Issue 144 (Wednesday, July 28, 2010)

[Federal Register Volume 75, Number 144 (Wednesday, July 28, 2010)]
[Proposed Rules]
[Pages 44209-44213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18537]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 622

[Docket No. 0907201152-91188-01]
RIN 0648-AY05

Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Regulatory Amendment to the Fishery Management Plan for the Reef Fish
Fishery of Puerto Rico and the U.S. Virgin Islands

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues this proposed rule that would implement a
regulatory amendment to the Fishery Management Plan for the Reef Fish
Fishery of Puerto Rico and the U.S. Virgin Islands (FMP) prepared by
the Caribbean Fishery Management Council (Council). This proposed rule
would modify the Bajo de Sico seasonal closure from a 3-month closure
to a 6-month closure, and prohibit fishing for and possession of
Caribbean reef fish in or from the exclusive economic zone (EEZ)
portion of Bajo de Sico during the closure. The proposed rule would
also prohibit anchoring in the EEZ portion of Bajo de Sico year-round.
In addition to the measures contained in the regulatory amendment, this
proposed rule would also add spear to the list of allowable gears in
the commercial sector of the Caribbean reef fish fishery. The intended
effect of this proposed rule is to provide further protection for red
hind spawning aggregations and large snappers and groupers, and better
protect the essential fish habitat (EFH) where these species reside.

DATES: Written comments must be received on or before August 27, 2010.

ADDRESSES: You may submit comments on the proposed rule identified by
0648-AY05, by any of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
Mail: Britni Tokotch, Southeast Regional Office, NMFS, 263
13th Avenue South, St. Petersburg, FL 33701.
Fax: 727-824-5308; Attention: Britni Tokotch.
Instructions: No comments will be posted for public viewing until
after the comment period has closed. All comments received are a part
of the public record and will generally be posted to http://www.regulations.gov without change. All personal Identifying
Information (for example, name, address, etc.) voluntarily submitted by
the commenter may be publicly accessible. Do not submit Confidential
Business Information or otherwise sensitive or protected information.
NMFS will accept anonymous comments (enter N/A in the required
fields if you wish to remain anonymous). You may submit attachments to
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF
file formats only.
Copies of the regulatory amendment--which includes an Environmental
Assessment (EA), an initial regulatory flexibility analysis (IRFA), and
a regulatory impact review (RIR)--may be obtained from Britni Tokotch,
Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg,
FL 33701 or may be downloaded from the Southeast Regional Office
website at http://sero.nmfs.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Britni Tokotch, 727-824-5305.

SUPPLEMENTARY INFORMATION: The Caribbean reef fish fishery 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).

Background

The Bajo de Sico area closure was first implemented in 1996 to
protect spawning aggregations of red hind. Currently, the EEZ portion
of Bajo de Sico is closed to all fishing activities from December 1
through the end of February, each year. Within the EEZ portion of the
Bajo de Sico closed area, the use of bottom-tending gear, including
traps, pots, gillnets, trammel nets, and bottom longlines, is
prohibited year-round.
Recently, Bajo de Sico has been identified as an important spawning
site, especially for red hind, and possibly for other resident
groupers, including Nassau and yellowfin groupers. Bajo de Sico is also
an important foraging site for these and other Caribbean reef fish. The
Bajo de Sico closed area has been described as a well developed and
diverse coral and sponge habitat, which provides EFH for Caribbean reef
fish within Bajo de Sico. The purpose of this proposed rule is to
protect red hind spawning aggregations and large snappers and groupers
from directed fishing mortality to achieve a more natural sex ratio,
age, and size structure, and to protect associated EFH, while
minimizing adverse social and economic effects.

Management Measures Contained in this Proposed Rule

Within the EEZ portion of Bajo de Sico, this proposed rule would
establish a seasonal closure from October 1 through March 31, each
year, during which fishing for and possession of Caribbean reef fish in
or from the area would be prohibited. The proposed revision of the Bajo
de Sico closure would provide additional protection for Caribbean reef
fish inhabiting Bajo de Sico.
This proposed rule would also prohibit anchoring by fishing vessels
year-round while in the EEZ portion of the Bajo de Sico closed area.
Prohibiting

[[Page 44210]]

anchoring will provide added protection to the EFH utilized by
Caribbean reef fish. This measure will minimize potential damage to
coral reef populations and will protect reef fish and habitat important
to the overall health of Bajo de Sico.

Additional Measures Contained in this Proposed Rule

This rule proposes to add spear to the list of allowable gears in
Sec. 600.725 for the commercial sector of the Caribbean reef fish
fishery. At its March 2009 Caribbean Council meeting, the Council voted
to add spear to the list of allowable gears for this fishery, and in a
letter dated May 27, 2009, the Council requested that NMFS implement
this measure. Spear is currently on the list of allowable gears for the
recreational sector, and this rule would implement the same measure for
the commercial sector.
NMFS proposes to revise the title for the FMP in the list of
authorized fisheries and gears. In Sec. 600.725, the FMP is
incorrectly named the ``Shallow Water Reef Fish Fishery FMP.''
Amendment 2 to the FMP renamed the FMP, from the ``Shallow Water Reef
Fish Fishery FMP'' to the ``Reef Fish Fishery FMP,'' however, this
title was not revised in the part 600 regulations. This rule corrects
the FMP title. These minor revisions are unrelated to the actions
contained in the Bajo de Sico regulatory amendment.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
Assistant Administrator has determined that this proposed rule is
consistent with the regulatory amendment, other provisions of the
Magnuson-Stevens Act, and other applicable law, subject to further
consideration after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared an IRFA, as required by section 603 of the Regulatory
Flexibility Act, for this proposed rule. The IRFA describes the
economic impact this proposed rule, if adopted, would have on small
entities. A description of the action, why it is being considered, and
the objectives of, and legal basis for this action are contained at the
beginning of this section in the preamble and in the SUMMARY section of
the preamble. A copy of the full analysis is available from the NMFS
(see ADDRESSES). A summary of the IRFA follows.
The Magnuson-Stevens Act provides the statutory basis for the
proposed rule. The proposed rule would modify the Bajo de Sico seasonal
closure by extending it from a 3-month closure to a 6-month closure,
and prohibit fishing for and possession of Caribbean reef fish in or
from the EEZ portion of Bajo de Sico during the closure. The proposed
rule would also prohibit anchoring by fishing vessels in the EEZ
portion of Bajo de Sico year-round. This rule also proposes minor
revisions to the codified text, including adding spear to the list of
allowable gears in the commercial sector of the reef fish fishery, and
revising the title of the FMP in the list of authorized fisheries and
gears in Sec. 600.725. The purposes of this proposed rule are to
provide further protection for red hind spawning aggregations and large
snappers and groupers from directed fishing mortality to achieve a more
natural sex ratio, age, and size structure, and to better protect the
EFH where these species reside.
No duplicative, overlapping or conflicting Federal rules have been
identified.
At present, Federal permits are not required to participate in
Council-managed fisheries on Puerto Rico's west coast, and, therefore,
it is unknown how many fishermen or vessels participate in the Federal
component of these fisheries. However, landings data from Puerto Rico's
trip ticket program indicate that 294 fishermen had commercial landings
on Puerto Rico's west coast in 2007. Some of these fishermen do not
possess commercial fishing licenses, and the vessels used by these
fishermen are not identified in the landings data. Preliminary
fisherman Census data for 2008 indicates that 95 percent of commercial
fishermen own one vessel, and thus it is assumed for current purposes
that each commercial fisherman represents a single commercial fishing
vessel. Further, all charter and headboat vessels used to fish for,
take, retain, or possess Atlantic billfish, tunas, swordfish, or sharks
must possess an Atlantic Highly Migratory Species (HMS) charter/
headboat permit. In 2008, eight charter vessels on Puerto Rico's west
coast held HMS charter/headboat permits.
In Puerto Rico's west coast fisheries, commercial fishing vessels
average 20 ft (6.3 m) in length, but range between 12 to 51 ft (3.8-
15.9 m), with the vast majority being between 15 and 25 ft (4.7-7.8 m).
These vessels have an average horsepower (HP) of approximately 77,
though considerable variability exists within the fleet, even among
vessels of comparable length. The age of these vessels is approximately
19 years on average. The majority of vessels are made of fiberglass (63
percent), though wood hulls and wood and fiberglass composite hulls are
relatively common, accounting for 19 percent and 18 percent of the
fleet, respectively. On average, each vessel carries two individuals,
the captain and one crewman.
According to the 2008 fisherman Census, 72 percent of Puerto Rico's
west coast commercial fishermen possess some type of commercial fishing
license while 28 percent do not. Of those fishermen who hold a
commercial fishing license, the vast majority (78 percent) possess a
full-time license, while the others possess either a beginner's license
(18 percent) or a part-time license (4 percent). These fishermen are
approximately 47 years old on average and have nearly 27 years of
commercial fishing experience. Each fisherman supports approximately
three dependents on average, which translates to an average household
family size of four persons. Each fisherman spends an average of
approximately 51 hours per week on commercial fishing related
activities. These individuals are highly dependent on income from
commercial fishing, which represents more than 85 percent of their
household income on average. More than half of these fishermen (54
percent) have less than a high school level of education, 35 percent
have a high school level of education, and 11 percent have some
additional education beyond high school.
As a result of non-reporting, reported landings and, thus, revenue
for Puerto Rico's commercial fisheries underestimate actual landings
and revenue. Therefore, landings and revenue must be adjusted in order
to generate more accurate estimates. Based on corrected landings
estimates, average gross revenue per commercial fisherman was $5,431
and $9,168 in 2006 and 2007 respectively, or $7,076 across both years.
The maximum gross revenue for a single commercial fisherman in either
year was approximately $138,000. Commercial fishermen are mainly
dependent on revenue from spiny lobster, queen conch, and reef fish,
particularly queen snapper and silk snapper. However, harvest of queen
conch is prohibited in the EEZ around Puerto Rico and bottom-tending
gear (e.g, fish traps, lobster traps, and bottom longline) is
prohibited in Bajo de Sico. Scuba diving and bottom line are the
predominant gears used by commercial fishermen. The bottom line fishery
for reef fish is most relevant for the actions in this proposed rule.
In 2008, eight vessels on Puerto Rico's west coast possessed HMS
charter/headboat permits. All eight charter

[[Page 44211]]

vessels are made of fiberglass. The majority of the HMS charter vessels
(seven) use rod and reel gear, while one vessel uses handline gear.
Furthermore, these vessels are 27 ft (8.4 m) in length and have 358 HP
on average and thus are slightly longer and considerably more powerful
on average than commercial fishing vessels. These vessels are
approximately 8 years old on average and are thus also much newer on
average than commercial fishing vessels. Charter vessels also typically
carry more individuals in terms of crew and passengers (approximately
seven on average) than commercial vessels. Charter vessels most
frequently target dolphin, blue marlin, wahoo, and yellowfin tuna.
Charter fishermen have approximately 25 years of fishing experience on
average. Charter vessels in Puerto Rico take approximately 190 trips
per year, though recent survey data suggest that charter vessels on the
west coast may average only 150-160 trips per year. These data also
suggest that west coast charter vessels specialize in half-day trips
rather than full-day trips, the latter of which was reported to cost
$526 on average in 2005. Annual landings and revenue data for west
coast charter vessels are not presently available. However, the
available information regarding number of trips per year and cost per
trip indicates that these charter operations are similar to those in
the Gulf of Mexico and South Atlantic regions. Therefore, it is assumed
that these vessels' maximum and average annual revenues are also
similar to those operating in the Gulf of Mexico and South Atlantic
regions.
The Small Business Administration defines a small business in the
commercial fishing industry as an entity that is independently owned
and operated, is not dominant in its field of operation (including its
affiliates), and has combined annual receipts not in excess of $4.0
million annually (NAICS codes 114111 and 114112, finfish and shellfish
fishing). For charter vessels, the other qualifiers apply and the
annual receipts threshold is $6.5 million (NAICS code 713990,
recreational industries). Based on the annual revenue and related
information for the fisheries provided above, all vessels expected to
be directly impacted by this proposed rule are determined, for the
purpose of this analysis, to be small entities.
The action to modify the Bajo de Sico closure is expected to
directly benefit all eight charter vessels on Puerto Rico's west coast
by giving them access to Bajo de Sico's HMS and pelagic resources
during the 3 months (December, January, and February) the area is
currently closed to all fishing. The magnitude of these economic
benefits depends on the extent to which these vessels take additional
trips to Bajo de Sico as opposed to reallocating current trips from
other areas. An estimate of how many additional trips these charter
vessels might take is not currently available. However, additional
trips would be expected to result in higher revenue and thus higher
profit.
Conversely, 64 of the 294 (22 percent) commercial fishing vessels
actively participating in Puerto Rico's west coast fisheries in 2007
are expected to experience direct, adverse economic effects as a result
of the action to modify the Bajo de Sico closure. Specifically, since
these vessels will experience additional loss of access to Bajo de
Sico's fisheries resources, particularly reef fish, during the months
of October, November, and March under this action, their landings,
revenue, and, therefore, profit are expected to decrease. Based on an
extrapolation of landings data from Puerto Rico's trip ticket data, the
64 directly affected vessels averaged approximately 6,400 lb (2,303 kg)
in landings and $17,300 in gross revenue in 2007. Detailed cost data
and, therefore, profit estimates are not currently available for these
commercial vessels. Therefore, the reduction in profit arising from
this action cannot be directly estimated for the directly affected
vessels.
However, surveys of the directly affected commercial fishermen
indicate that these vessels are expected to experience a 48-percent
reduction in landings and a 47-percent reduction in gross revenue, or
approximately $8,130 per vessel. Most of these losses are due to
reductions in the harvest of reef fish, particularly deepwater
snappers. However, the harvest of other species (e.g. baitfish) caught
on trips that target reef fish are also expected to be foregone. Since
these relatively small vessels will not be able to transit through Bajo
de Sico with reef fish on board and may have to travel to more distant
fishing grounds in order to harvest deepwater snappers, operating costs
are expected to increase by 57 percent. Further, the affected fishermen
are expected to experience a 55-percent reduction in household income.
Since the fisherman's household income is generally indicative of net
revenue or profit to the vessel, this figure represents the best
available estimate of the expected percentage reduction in profit for
these entities.
On the other hand, since October and November are off-season for
many commercial vessels due to poor weather and sea conditions, and
given that the harvest of their primary target species, silk snapper,
is already prohibited during these months, the reductions in landings,
revenue, household income and, therefore, profit are likely
overestimated. Furthermore, vessels with the appropriate gear, the
number of which cannot be determined with available data, may be able
to partially mitigate these losses by reallocating some of their
fishing effort out of the bottom line fishery for reef fish into the
troll line fishery for HMS and pelagic species during the months that
Bajo de Sico will be closed to fishing for Caribbean reef fish.
The action to prohibit anchoring by fishing vessels in Bajo de Sico
year-round is not expected to generate adverse economic impacts on the
eight charter vessels because they use troll or handline gear and do
not drop anchor when fishing. It is possible, though not likely, that a
few of the commercial vessels expected to be affected by the proposed
action to modify the Bajo de Sico closure may experience additional
minimal adverse economic effects as a result of the proposed anchoring
prohibition. Though it is not necessary for vessels using bottom line
gear to drop anchor when fishing, such behavior may occur on occasion.
Since dropping anchor in Bajo de Sico would no longer be permissible
under the proposed action, vessels would be required to move out of the
area, and thereby expend additional fuel, if they want to drop anchor.
The effects resulting from the occasional need for a few vessels to
expend additional fuel would likely be imperceptible and, therefore,
probably have no impact on these vessels' profitability.
The action to add spear to the list of allowable gears in the
commercial sector of the reef fish fishery is not expected to generate
any adverse economic effects on commercial reef fish vessels. This
action is administrative in nature, the purpose of which is to correct
an oversight with respect to the current list of allowable gears for
the commercial reef fish fishery. Since spear is and has been an
historically used gear in the commercial reef fish fishery, the Council
intended for it to be included in the list of allowable gears. This
action would formally legalize its use in the fishery but have no
effect on its current or expected future use in the fishery and thus,
in turn, have no effect on the operations of commercial reef fish
vessels.
Four alternatives, including the status quo, were considered for
the action to modify the Bajo de Sico seasonal closure. Three of the
alternatives include multiple options that determine

[[Page 44212]]

which species and specific activities are covered by the closure. The
first alternative, the status quo, would not have modified the seasonal
closure for Bajo de Sico or prohibited possession of reef fish onboard
when transiting through the area during the closure. Further, the
seasonal closure would have continued to apply to all fishing,
including fishing for non-reef fish species such as HMS and pelagics.
The status quo alternative is inconsistent with the Council's objective
of providing greater protection for spawning aggregations of reef fish
in the area as well as well developed coral that provide critical
habitat for these species.
The second alternative, which would extend the seasonal closure by
3 months to the months of October, November, and March, had three
options other than the proposed action. The first option would have
prohibited fishing for all species, including those not managed by the
Council, during the closure. The second option would have prohibited
fishing for and possession of all species, including those not managed
by the Council, during the closure. The third option would have
prohibited fishing for reef fish during the closure. The first two
options were not selected because fishing for HMS and pelagic species
using troll, rod and reel, and handline gear near the surface is not
expected to result in the incidental harvest of reef fish or damage to
coral. As such, prohibiting fishing for and possession of these species
would generate unnecessary economic and social impacts on charter,
private recreational, and commercial vessels. The third option was not
selected because it would still effectively allow transit through Bajo
de Sico during the closure with reef fish onboard. Allowing possession
of reef fish onboard would make it difficult to prove where they were
harvested from, which would in turn cause enforcement of the closure to
be more difficult and thereby less effective.
The third alternative, which would extend the seasonal closure by 3
months to the months of March, April, and May, had four options.
Although this alternative would close Bajo de Sico for 6 months, and
thereby generate comparable biological benefits in terms of protecting
red hind spawning aggregations and larger individuals of snapper and
grouper, as well as protecting well developed coral and sponge habitat
(EFH), it would create greater adverse social and economic impacts on
commercial vessels and associated onshore businesses since commercial
fishing activity is considerably greater in March, April, and May than
in October, November, and March. Thus, this alternative would result in
lower net benefits to society compared to the proposed action.
The fourth alternative, which would implement a year-round closure
of Bajo de Sico, had four options. This alternative would have
generated greater biological benefits with respect to protecting coral
and reef fish populations. However, the additional benefits of a year-
round closure to reef fish spawning aggregations were not believed to
be significantly greater compared to a 6-month closure, and additional
protections to coral habitat are being accomplished by the proposed
anchoring prohibition. Further, by completely prohibiting access to
Bajo de Sico's reef fish and, in effect, baitfish resources, this
alternative would have generated much greater adverse social and
economic impacts on commercial and charter vessels and associated
onshore businesses. Given the proposed rule's objectives, the Council
concluded these considerably larger social and economic costs
outweighed the additional biological benefits and, thus, would have
resulted in lower net benefits to society compared to the proposed
action.
Three alternatives, including the status quo, were considered for
the action to prohibit anchoring in Bajo de Sico. The first
alternative, the status quo, would not have implemented any
restrictions on anchoring in Bajo de Sico. Anchoring is thought to
cause substantial and long lasting damage to coral populations.
Anchoring can also indirectly impact the long-term growth of coral
populations. Coral populations are an essential part of the ecology of
reef environments. If coral populations are decreased, reef fish
populations could also be indirectly impacted by lack of essential
habitat. Thus, this alternative is contrary to the Council's objective
of providing additional protections to important coral habitat.
The second alternative would have prohibited anchoring for 6
months. Anchoring has a high probability of damaging essential coral
reef populations. These coral populations are very vulnerable and slow
growing, and even slight damage can require years of recovery.
Anchoring during the open season could damage coral beyond recovery.
Coral populations are an essential part of the ecology of reef
environments. If coral populations are decreased, reef fish populations
could also be indirectly impacted by lack of essential habitat. Thus,
this alternative is contrary to the Council's objective of providing
additional protections to important coral habitat.
Copies of the RIR and IRFA are available from NMFS (see ADDRESSES).

List of Subjects

50 CFR Part 600
Administrative practice and procedures, Confidential business
information, Fisheries, Fishing, Fishing vessels, Foreign relations,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Statistics.
50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.

Dated: July 23, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 600 and 622
are proposed to be amended as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

1. The authority citations for part 600 continue to read as
follows:

Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
2. In Sec. 600.725, in paragraph (v), in the table under heading
``V. Caribbean Fishery Management Council,'' the heading for entry 2.
is revised, and a new entry 2.D. is added to read as follows:

Sec. 600.725 General prohibitions.

* * * * *
(v) * * *

------------------------------------------------------------------------
Fishery Authorized gear types
------------------------------------------------------------------------
* * * * *

V. Caribbean Fishery Management Council
* * * * *
2. Caribbean Reef Fish Fishery (FMP) ...........................
* * * * *

D. Other commercial fishery. D. Spear.
* * * * *

------------------------------------------------------------------------

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

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

Authority: 16 U.S.C. 1801 et seq.
4. In Sec. 622.33, paragraph (a)(2)(ii)(A) is removed and
reserved, introductory

[[Page 44213]]

paragraph (a) is revised and paragraph (a)(8) is added to read as
follows:

Sec. 622.33 Caribbean EEZ seasonal and/or area closures.

(a) Seasonal closures. In addition to the other restrictions
specified in this paragraph (a), fishing with pots, traps, bottom
longlines, gillnets or trammel nets is prohibited year-round in the
closed areas specified in paragraphs (a)(1), (a)(2), (a)(3), and (a)(8)
of this section.
* * * * *
(8) Bajo de Sico closed area. The Bajo de Sico closed area is
bounded by rhumb lines connecting, in order the following points:

------------------------------------------------------------------------
Point A North lat. West long.
------------------------------------------------------------------------
A 18[deg]15.7' 67[deg]26.4'
B 18[deg]15.7' 67[deg]23.2'
C 18[deg]12.7' 67[deg]23.2'
D 18[deg]12.7' 67[deg]26.4'
A 18[deg]15.7' 67[deg]26.4'
------------------------------------------------------------------------

(ii) From October 1 through March 31, each year, no person may fish
for or possess any Caribbean reef fish, as listed in Table 2 of
Appendix A to part 622, in or from those parts of the Bajo de Sico
closed area that are in the EEZ. The prohibition on possession does not
apply to such Caribbean reef fish harvested and landed ashore prior to
the closure.
(iii) Anchoring, by fishing vessels, is prohibited in those parts
of the Bajo de Sico closed area that are in the EEZ year-round.
* * * * *
[FR Doc. 2010-18537 Filed 7-27-10; 8:45 am]
BILLING CODE 3510-22-S