Daily Rules, Proposed Rules, and Notices of the Federal Government
The snapper-grouper fishery off the southern Atlantic states is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
On July 6, 2009, NMFS published the proposed temporary rule and requested public comment (74 FR 31906). The rationale for these interim measures is provided in the preamble to the proposed temporary rule and is not repeated here.
A total of 1,151 comments were received on the proposed interim rule from the public, state and county agencies, and non-governmental organizations. Of these comments 1,102 expressed general opposition to the proposed interim measures (1 comment included a petition with over 24,000 signatures), and 27 comments expressed general support (1 comment included a petition with 808 signatures). Other comments provided specific concerns related to the interim rule and are addressed below. Twenty-two comments were received that were unrelated to the scope of this action and are therefore not addressed. The following is a summary of the comments received and NMFS' responses.
The economic analysis indicates the interim rule would have the most negative short-term effects on communities which target red snapper exclusively. The measures proposed in the interim rule, as well as previous and subsequent management measures, are necessary to address overfishing of snapper-grouper species. Without these measures, long-term management of the fishery may become more restrictive to the fishermen and more burdensome on the agency.
The interim rule implements a prohibition on the harvest, possession and sale of red snapper for 180 days (with the possibility of extending the prohibition for an additional 186 days). During this time, fishing for other snapper-grouper species, in accordance with current fishery regulations, would still be allowed.
SEDAR is a cooperative Fishery Management Council process initiated in 2002 to improve the quality and reliability of fishery stock assessments in the South Atlantic, Gulf of Mexico, and US Caribbean. SEDAR is managed by the Caribbean, Gulf of Mexico, and South Atlantic Regional Fishery Management Councils in coordination with NMFS and the Atlantic and Gulf States Marine Fisheries Commissions. SEDAR seeks improvements in the scientific quality of stock assessments and greater relevance of information available to address existing and emerging fishery management issues. SEDAR emphasizes constituent and stakeholder participation in assessment development, transparency in the assessment process, and a rigorous and independent scientific review of completed stock assessments. SEDAR is organized around three workshops. The first is a data workshop where datasets are documented, analyzed, and reviewed and data for conducting assessment analyses are compiled. The second is an assessment workshop where quantitative population analyses are developed and refined and population parameters are estimated. The third is a review workshop where a panel of independent experts reviews the data and assessment and recommends the most appropriate values of critical population and management quantities. All SEDAR workshops are open to the public. Public testimony is accepted in accordance with each Council's Standard Operating Procedures. Workshop times and locations are noticed in advance through the
The data and models used in the red snapper stock assessment were not subject to peer reviews by the National Academy of Science. The findings and conclusions of each SEDAR workshop
SEDAR 15 evaluated findings from numerous studies to estimate release mortality of red snapper. One of the studies reviewed at the data workshop provided discard information for many snapper-grouper species on multiple trips during a 6-month period in the South Atlantic, which included 73 red snapper; 31 of which were released. After examining the results from the many different release mortality studies, the expert scientific opinion at the SEDAR 15 red snapper data workshop recommended the release mortality should be set at 40 percent (a range of 30 to 50 percent to account for uncertainty) for the recreational sector, and 90 percent (a range of 80 to 100 percent to account for uncertainty) for the commercial sector. Discard mortality was evaluated through sensitivity runs and did not result in any significant changes in the fishing mortality or abundance estimates.
Red snapper are vulnerable to overfishing because they live for more than 50 years. They grow quickly during the first 10 years of life reaching 20 inches (50.8 cm) total length by age three. Therefore, a very strong year class in 2005 or 2006 could result in a large number of red snapper greater than 20 inches (50.8 cm) total length in 2009. Furthermore, some red snapper greater than 20 lb (9.07 kg) would not be unexpected since the stock assessment indicated there were strong year classes in 1998 and 1999 and red snapper approach their maximum size by age 10. Older fish are generally represented by larger size classes; however, due to the rapid growth of red snapper, and because red snapper approach their maximum size by age 10, length is not always a good indicator of age. For example, a 5-year-old fish can range in length from 13 inches (33.02 cm) total length to 32 inches (81.28 cm) total length; while the age of a 32-inches (81.28-cm) total length red snapper can range from 5 to more than 50 years.
Despite good recruitment, the age structure of the population remains truncated. Red snapper live to at least 54 years of age, but the assessment indicates only a small percentage of the population was estimated to be age 10 or older in recent years. Furthermore, samples provided by fishermen in 2009 also indicates most of the red snapper they were catching were young fish. Therefore, there is a need to protect this strong year class and future year classes to help the stock rebuild more quickly.
Red snapper are being caught before they become old enough to reach their peak reproductive and biomass levels. Although the 20-inch (50.8-cm) size limit (currently in place) allows some fish to spawn before they become vulnerable to harvest, these younger, mostly first-time spawners are less productive and weigh much less than the older and heavier fish.
Natural mortality of red snapper was estimated using several methods and is documented in the SEDAR 15 report. Natural mortality of red snapper was estimated to be 0.078 using the regression model reported by Hoenig (1983). Natural mortality was also
The stock assessment used available life history information relying on mature biomass as a measure for reproductive potential. Fecundity data are seldom available for snapper-grouper stocks and, therefore, have been infrequently used in stock assessments.
SEDAR seldom uses VPA because VPA models require a complete catch-age input and apply an assumption that the catch is measured without error. Most stocks managed by the Council have only a short or intermittent time series of age observations adequate for constructing catch at age, and it is widely accepted that key catch sectors have considerable error in their catch estimates. The forward projection model as used in SEDAR 15 for red snapper is state of the art and has been extensively reviewed by independent peer review panels.
An examination of the red snapper age and length composition indicated that the population was already impacted by fishing by the time the biological sampling began in the 1970s. The most likely explanation for this is the large catches occurring prior to the 1970s, which is supported by the fact that the highest recorded commercial catches of red snapper occurred during the 1950s and 1960s. Both commercial and recreational red snapper fisheries were operating prior to the 1970s; however, information on the recreational catch levels for this time period is uncertain. The only estimate of recreational catches during this period comes from the FWS data. At the SEDAR 15 assessment workshop, the panel recognized that recreational fishing occurred prior to the 1970s and that including the FWS data improved model performance in terms of fit and residual patterns. As a result, the SEDAR assessment workshop decided to include the FWS data in the analysis. However, appreciating the uncertainty associated with the historical recreational catch of red snapper, sensitivity runs of the stock assessment model were also conducted and analyzed by the SEDAR 15 assessment workshop participants. These sensitivity runs included assumptions of: (1) very low recreational catches, and (2) half of the values from the FWS survey. The inclusion or exclusion of the FWS data did not impact the SEDAR assessment workshop's conclusions on the stock's status.
Confusion about rock shrimp bycatch likely results from evidence that the fishery for penaeid shrimp (pink, white, and brown shrimp) in the Gulf of Mexico catches a high level of juvenile red snapper. However, no evidence exists that the penaeid shrimp fishery in the South Atlantic has the same level of red snapper catch. In fact, the Southeast Area Monitoring and Assessment Program-South Atlantic Coastal Survey has not caught any red snapper during shallow water trawl studies since 2007, and no more than two red snapper in any year during 1995-2007.
Bottom longline gear is also used in the shark fishery. Analysis of observed bottom longline sets from 1994 to 2006 suggested the impact on the snapper-grouper fishery with this gear type appeared to minimal. During the 13 year period, there were observed catches of tilefish and grouper species with shark bottom longline; however, there were no observed catches of red snapper with this gear.
Pelagic longline is used in deeper water where red snapper do not occur and usually does not impact the bottom. Therefore, it is unlikely that snapper-grouper bottom longline, shark bottom longline, or pelagic longline has much impact on the status of red snapper.
The Administrator, Southeast Region, NMFS, (RA) determined that the interim measures this final temporary rule will implement are necessary for the conservation and management of the South Atlantic red snapper fishery. The RA has also determined that this final temporary rule is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws.
This final temporary rule has been determined to be not significant for purposes of E.O. 12866.
NMFS prepared a FRFA, as required by section 604 of the Regulatory Flexibility Act, for this final temporary rule. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by public comments on the IRFA, NMFS' responses to those comments, and a summary of the analysis completed to support the action. A copy of the full analysis is available from NMFS (see
The purpose of this interim rule is to reduce red snapper overfishing while long-term management measures are developed and implemented. The Magnuson-Stevens Act provides the statutory basis for this interim rule.
No public comments were received that raised specific issues on the IRFA. However, 454 comments were received on the general economic analysis conducted for the EA of the proposed interim rule. Some of these comments address issues that are germane to the Regulatory Flexibility Act (RFA), while others do not. However, while the RFA pertains to specific economic questions, there is a logical connection between all economic issues and the nuances of which comments are and which are not germane to the RFA are not always obvious to the public. In recognition of these considerations, all of the economic comments are addressed here.
Four hundred and forty-one of the comments expressed concern over the magnitude of the likely economic effects of the interim rule; 12 comments asserted that no economic impact study of the expected effects of the proposed action had been conducted; one comment stated the analysis was inadequate because it concentrated on
The RFA requires an assessment of the expected direct impacts of regulatory action on small entities. As explained in the IRFA and provided below in this classification summary, the small entities that are expected to be directly affected by this interim rule include only commercial and for-hire fishing vessels. While different types of shore-side businesses are also expected to be affected, these would be indirect effects of the interim rule and, as such, do not fall under the requirements of the RFA. However, the expected indirect effects of the interim rule on affected entities were discussed in the EA. The EA also contained estimates of the expected change in consumer surplus to recreational anglers. While these would be direct effects, anglers are not small entities as defined by the RFA and, as a result, these effects were not included in the IRFA, nor are they further addressed in this summary.
Details of the expected economic effects of this interim rule on small entities are provided below. In summary, commercial vessels that traditionally harvest red snapper are expected to have their net operating revenues (NOR), trip revenues minus non-labor trip costs, reduced by an average of $450 per vessel as a result of the implementation of the interim rule for 6 months, or a total of $1,300 if the interim rule is in effect for a full year. Comparable figures for headboats are $58,7000 and $132,000, respectively, and $800 and $1,400 for charter vessels. On average, the expected reduction in NOR is expected to represent a small portion of total NOR for commercial and charter vessels because red snapper comprised, on average from 2003-2007, only approximately 3.7 percent of total ex-vessel revenues by commercial vessels with recorded landings of red snapper harvest, and available data indicate that red snapper is targeted by less than one half of one percent of charter anglers. Some individual commercial or charter vessels are expected, however, to be more dependent on red snapper, and experience greater than average losses.
Target information for fishermen on headboats is not available and, as discussed below, the estimates of expected reductions in NOR for this sector equate to what would occur if all headboat angler trips (defined as angler days) for vessels in Georgia and northeast Florida are cancelled. In reality, total cancellation of all trips is not expected because most fishermen do not target specific species, other species would continue to be available, and research has indicated a general willingness to fish for other species when anglers are faced with zero bag limits for individual species. Nevertheless, actual trip cancellation cannot be reasonably projected, and the estimates of potential losses reflect 100 percent of the average NOR for the respective vessels during the relevant period of closure. As such, they represent a worst-case scenario. While not explicitly stated, business failure of affected vessels would be expected if substantial trip cancellation occurs.
An appropriate model to quantify indirect shore-side effects was not available at the time the proposed interim rule was prepared, nor is one currently available. As a result, these effects were only discussed in a qualitative manner, with the conclusion that shore-side effects would be dependent on actual rates of trip cancellation, but may be exacerbated by other economic effects that stem from other recent fishery regulations and the larger economic recession that has been in effect. The absence of quantitative estimates, however, did not preclude or affect the ability to rank the alternatives. In summary, NMFS does not expect the adverse economic effects on the commercial fishery and associated businesses to be cumulatively substantial due to the relatively minor status of the fishery. With regards to the recreational sector, NMFS agrees that, while the net adverse effects of the interim rule will depend on the amount of actual trip cancellations by for-hire (charter and headboat) and private anglers, which target and harvest data does not suggest will be substantial, the possibility of large, localized reductions in effort, expenditures, and associated economic activity exists. However, given the condition of the resource, other alternatives that would achieve the necessary biological goals while imposing lower economic costs were not available.
As demonstrated by the information presented above, an economic analysis of the expected effects of the proposed interim rule was conducted, and NMFS disagrees with statements that no economic impact analysis was conducted. Although the Magnuson-Stevens Act uses the term “economic impacts,” NMFS guidelines interpret this language as “economic effects” and does not require a specific type of analysis. The analysis conducted for the proposed interim rule examined the expected change in net economic benefits, consistent with a benefit-cost analysis framework (which is the recommended technique in formal economic analysis of Federal regulations), as measured by NOR for fishing businesses and consumer surplus for anglers, rather than the effects of changes in expenditure flows through shore-side businesses and communities. Examination of the effects of changes in these expenditure flows is commonly referred to as “economic impact analysis.” However, while measures of these effects are informative, they represent the potential distributional effects of changes in expenditures (changes in potential jobs supported, taxes generated, total sales, etc.) and not changes in net economic benefits. These models also do not capture business profitability or allow the determination of actual business success or failure. Finally, a model to estimate the effects of changes in these expenditure flows was not available. An examination of the effects of the interim rule, and all fisheries rules, on changes in the NOR of shore-side businesses is informative to the management process, similar to the analysis of effects on fishing vessels. However, cost and revenue data for even the most directly affected businesses, such as fish dealers and bait and tackle shops, is unavailable.
The discussion in the previous two paragraphs also addresses the comment that the analysis was inadequate because it concentrated on NOR. The assessment requirements are that relevant economic effects be evaluated either quantitatively or qualitatively, to the extent possible using available information, sufficient to inform the process and support the identification of the alternative that achieves the regulatory objective at the lowest economic cost. NMFS believes that those requirements have been met by the current analysis.
With regards to the comment that the base years used in the analysis of the headboat sector was inappropriate, while the average annual amount of headboat effort from 2003-2007 in the areas examined, approximately 51,000 angler days, is less than the average for 1998-2002, approximately 55,000 angler days, headboat effort, while variable
Claims that the analysis was based on “two charter boats out of the Gulf” are unfounded. As discussed in the EA, the methodology employed in the assessment followed the methodology employed in the evaluation of the expected economic effects of the closure of the recreational red snapper fishery in the Gulf of Mexico in 2008. That assessment built upon previous work conducted in support of Amendment 27 to the Reef Fish Fishery Management Plan of the Gulf of Mexico and which utilized information from a number of sources, the most relevant of which were two research studies that collectively covered the for-hire industry from Texas through North Carolina; cost and returns data collected as an add-on to the Marine Recreational Fisheries Statistics Survey For-hire Survey, which was collected from for-hire vessels in Louisiana through Florida (both coasts); and a survey and model that examined changes in angler target behavior and benefits under alternative management scenarios. Thus, the information utilized was drawn from several sources, was certified by the SEFSC as the best scientific information available and was appropriate for application to the interim rule.
Finally, comments that the interim rule would prevent recreational anglers from fishing exaggerate the scope of the rule. Under this interim rule, or any rule that establishes a zero bag limit, only the ability to fish for and retain red snapper is affected. No restriction on continued fishing for other species would be imposed. Fishing for other species, and the enjoyment it brings, could continue. Children could continue to experience the joys of learning how to fish, be taught the environmental ethics of catch and release, and other species could be retained for consumption. All that would be lost under the interim rule would be the benefits associated with the targeting, retention, and consumption of red snapper. While some portion of an angler's enjoyment is understandably associated with the retention and consumption of certain species, much of the enjoyment, and possibly most for many anglers, is expected to be associated with the act of simply fishing and catching fish, with sufficient satisfaction remaining when fish must be released to justify continued fishing. Thus, all customary trips could continue (in number, with appropriate change in target behavior) under the closure. Only those trips for which red snapper target and consumptive needs dominate the benefit stream would be expected to be cancelled. These trips are expected to be few compared to the total number of trips in the affected area, resulting in fewer reductions in expenditures, revenues, and economic activity in associated shore-side businesses. These considerations apply for recreational trips of all types, regardless of whether they are private, charter, or headboat trips. As a result, claims that the interim rule will prevent recreational anglers from fishing, resulting in substantial reductions in economic activity and widespread business failure appear exaggerated.
Because of the responses provided here and to other issues raised by public comment on other aspects of the proposed interim rule, as detailed in the Comments and Responses section of the preamble, no changes were made in the final interim rule as a result of such comments.
This interim rule is expected to directly impact commercial fishing and for-hire operators. The Small Business Administration has established size criteria for all major industry sectors in the U.S. A business involved in fish harvesting is classified as a small business if it 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 (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. For a for-hire business, the other qualifiers apply and the annual receipts threshold is $7.0 million (NAICS code 713990, recreational industries).
From 2003-2007, an average of 220 vessels per year were permitt