Federal Register / Vol. 75, No. 33 / Friday, February 19, 2010 / Rules and Regulations 7361 

Dated: February 3, 2010. 

Matthew S. Borman, 

Deputy Assistant Secretary for Export 

Administration. 

[FR Doc. 2010–3278 Filed 2–18–10; 8:45 am] 

BILLING CODE 3510–33–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

15 CFR Part 902 

50 CFR Part 300 

[Docket No. 070717350–9936–02] 

RIN 0648–AV63 

International Fisheries; Western and 

Central Pacific Fisheries for Highly 

Migratory Species; Initial 

Implementation of the Western and 

Central Pacific Fisheries Convention; 

Correction 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; correction. 

SUMMARY: This action corrects the 

effective date of final regulations 

published in the Federal Register on 

January 21, 2010, from February 22, 

2010, to April 21, 2010. The rule 

establishes regulations needed to carry 

out the obligations of the United States 

under the Convention on the 

Conservation and Management of 

Highly Migratory Fish Stocks in the 

Western and Central Pacific Ocean 

(Convention). The regulations include 

requirements related to permitting, 

vessel monitoring systems, vessel 

observers, vessel markings, reporting 

and recordkeeping, at-sea 

transshipment, and boarding and 

inspection on the high seas, among 

others. The rule will have the effect of 

requiring that all relevant U.S. fishing 

vessels are operated in conformance 

with the provisions of the Convention. 

DATES: The effective date of the final 

regulations published in the Federal 

Register on January 21, 2010, at 75 FR 

3335, is April 21, 2010. 

FOR FURTHER INFORMATION CONTACT: Tom 

Graham, NMFS Pacific Islands Region, 

808–944–2219. 

SUPPLEMENTARY INFORMATION: 

Need for Correction 

In the document published January 

21, 2010 (75 FR 3335), under the DATES

section, the effective date of the final 

rule was erroneously stated as being 

February 22, 2010. This document 

corrects the effective date to read as 

follows: 

DATES: This final rule is effective April 

21, 2010. 

Authority: 16 U.S.C. 5501 et seq; 16 U.S.C. 

6901 et seq. 

Dated: February 12, 2010. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2010–3277 Filed 2–18–10; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

15 CFR Part 922 

[Docket No. 090122043–0025–02] 

RIN 0648–AX37 

Gray’s Reef National Marine Sanctuary 

Regulations on the Use of Spearfishing 

Gear 

AGENCY: Office of National Marine 

Sanctuaries (ONMS), National Ocean 

Service (NOS), National Oceanic and 

Atmospheric Administration (NOAA), 

Department of Commerce (DOC). 

ACTION: Final rule. 

SUMMARY: The National Oceanic and 

Atmospheric Administration (NOAA) is 

issuing a final rule to prohibit the use 

of spearfishing gear in Gray’s Reef 

National Marine Sanctuary (GRNMS or 

sanctuary). Possession of spearfishing 

gear is also prohibited except for vessels 

passing through the sanctuary without 

interruption, and only when the gear is 

stowed and not available for immediate 

use. Spearfishing can selectively target 

larger fish, and can significantly reduce 

abundance and alter the relative size 

structure of target species toward 

smaller fish. In addition, spearfishing 

can impact ecosystem health by altering 

the composition of the overall natural 

communities of species. The largest fish 

are important as predators in 

maintaining a balanced and complete 

ecosystem; their selective removal may 

cause ecological imbalance. Therefore, 

the prohibition provides protection to 

the fishes and natural live-bottom 

community for which the sanctuary was 

designated. The final rule also facilitates 

enforcement of an existing prohibition 

against the use of powerheads within 

the sanctuary. An environmental 

assessment has been prepared for this 

proposed action. 

DATES: Effective Date: These regulations 

are effective on March 22, 2010. 

ADDRESSES: Copies of the environmental 

assessment and the socio-economic 

study described in this rule are available 

upon request to Gray’s Reef National 

Marine Sanctuary, 10 Ocean Science 

Circle, Savannah, GA 31411, Attn: Dr. 

George Sedberry, Superintendent. These 

documents can also be viewed on the 

Web and downloaded at http:// 

graysreef.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Stewardship Coordinator Becky 

Shortland at (912) 598–2381. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Gray’s Reef National Marine 

Sanctuary 

GRNMS was designated as the 

nation’s fourth national marine 

sanctuary in 1981 for the purposes of 

protecting the quality of its unique and 

fragile ecological community; promoting 

scientific understanding of the live 

bottom ecosystem; and enhancing 

public awareness and wise use of this 

significant regional resource. GRNMS 

protects 16.68 square nautical miles of 

open ocean and submerged lands of 

particularly dense and nearshore 

patches of productive live bottom 

habitat. The sanctuary is influenced by 

complex ocean currents and serves as a 

mixing zone for temperate (colder 

water) and sub-tropical species. The 

series of rock ledges and sand expanses 

has produced a complex habitat of 

caves, burrows, troughs, and overhangs 

that provide a solid base upon which a 

rich carpet of temperate and tropical 

marine flora and fauna attach and grow. 

This flourishing ecosystem attracts 

mackerel, grouper, black sea bass, 

angelfish, and a host of other fishes. An 

estimated 180 species of fish, 

encompassing a wide variety of sizes, 

forms, and ecological roles, have been 

recorded at GRNMS. Loggerhead sea 

turtles, a threatened species, use 

GRNMS year-round for foraging and 

resting, and the highly endangered 

northern right whale is occasionally 

seen in Gray’s Reef. GRNMS is one of 

the most popular sportfishing areas 

along the Georgia coast. 

B. Need for Action 

This regulation is being promulgated 

for two reasons. First, the action 

provides greater protection to sanctuary 

resources by removing a gear type that 

can be used to selectively target larger 

fish, and can thereby negatively alter the 

size structure of fish populations. While 

the number of recreational divers 

spearfishing at GRNMS appears to be 


srobinson on DSKHWCL6B1PROD with RULES
7362 Federal Register / Vol. 75, No. 33 / Friday, February 19, 2010 / Rules and Regulations 

small, spearfishing is a highly efficient 

harvesting gear that allows larger fish to 

be selectively targeted relative to other 

fishing gears. Such fishing can 

significantly reduce abundance and 

alter the relative size structure of target 

species toward smaller fish. Some fish 

populations that are present in GRNMS 

are regionally overfished or approaching 

overfished status and researchers have 

commented on the lack of large snappergrouper individuals at GRNMS. 

Second, the action facilitates 

improved enforcement of an existing 

prohibition against the use of 

powerheads within the sanctuary. 

Powerheads, also sometimes referred to 

as bang sticks or shark sticks, are a 

specialized type of firearm intended for 

use underwater that employ an 

ammunition cartridge that fires upon 

direct contact with the target. 

Powerheads are often attached to the 

end of a spear gun and used for spear 

fishing, or may be used for self-defense 

underwater. Under existing GRNMS 

regulations, it is unlawful to injure, 

catch or harvest any marine resource 

within the sanctuary, by using a 

powerhead (50 CFR 922.02(a)(5)(i)). 

Law enforcement officials have 

expressed the need to prohibit all 

spearfishing to enable them to more 

effectively enforce the existing 

powerhead prohibition. Although 

NOAA has prohibited the use of 

powerheads since the 1981 GRNMS 

designation, powerhead spear tips and 

spent shells are still found in GRNMS. 

Spearguns with a powerhead and 

without a powerhead are similar in 

appearance, which can make it much 

more difficult to detect and prove a 

violation of the powerhead prohibition. 

Prohibiting spearfishing in the 

sanctuary would make the restriction 

against powerheads more enforceable by 

law enforcement officers. 

C. Previous Regulatory Action Regarding 

Spearfishing Gear 

NOAA considered regulating 

spearfishing during the original 

management plan of 1981, but only 

spearfishing with powerheads was 

prohibited at the time. A complete 

spearfishing prohibition was again 

considered during the review and 

revision of the GRNMS Management 

Plan beginning in 1999. Along with the 

fact that visitor use had increased 

(primarily recreational fishing), 

evidence of powerhead use (despite the 

1981 ban) created a growing concern. 

NOAA proposed to prohibit all 

spearfishing activities with the 2003 

Draft Environmental Impact Statement/ 

Draft Management Plan (DEIS/DMP) and 

associated proposed rule (68 FR 62033, 

October 31, 2003). 

However, after consideration of public 

comments on the DEIS/DMP, NOAA 

concluded that additional 

socioeconomic information was needed 

and thus deferred any regulatory action 

on spearfishing. The 2006 Final EIS/MP 

instead included a commitment to 

gather additional socioeconomic 

information on spearfishing in GRNMS 

and review the issue again in two years. 

Additional socioeconomic 

information was collected, analyzed and 

presented to the Sanctuary Advisory 

Council in September 2007. That 

information indicates no charter 

spearfishing activity and only a very 

small amount of private spearfishing 

activity within the GRNMS. Moreover, 

abundant opportunities to conduct 

spearfishing in nearby locations outside 

the sanctuary already exist. Copies of 

this report are available at the address 

and Web site listed in the ADDRESSES

section of this rule. 

D. Participation of the South Atlantic 

Fishery Management Council (SAFMC) 

In accordance with Section 304(a)(5) 

of the NMSA (16 U.S.C. 1434(a)(5)) 

GRNMS provided the South Atlantic 

Fishery Management Council with the 

opportunity to prepare spearfishing 

regulations for the sanctuary. 

In 2003, the SAFMC agreed with 

NOAA that spearfishing should be 

prohibited in the sanctuary and 

requested that NOAA promulgate the 

regulations. As previously discussed, 

however, after consideration of public 

comments on the Draft Environmental 

Impact Statement/Draft Management 

Plan (DEIS/DMP) and the proposed rule, 

NOAA concluded that additional 

information was needed and thus 

deferred taking regulatory action on 

spearfishing for two years. The final rule 

(71 FR 60055, October 12, 2006) stated 

that NOAA would assess socioeconomic 

factors of spearfishing in GRNMS and 

would conduct a study to determine the 

level of spearfishing and other fishing 

activities. NOAA would then determine 

what action to take, if any, given the 

additional data. 

NOAA presented an update of this 

issue, including the additional 

socioeconomic information that had 

been collected, at the October 2007 

meeting of the Joint Habitat/Ecosystem 

Based Management Advisory Panel of 

the SAFMC and again at the December 

2007 and March 2008 SAFMC meetings. 

In June 2008, NOAA provided the 

SAFMC with the opportunity to prepare 

draft sanctuary fishing regulations 

concerning spearfishing activities for 

GRNMS, recommending that the 

Council prohibit spearfishing. The 

SAFMC again concurred with the 

proposed ban on spearfishing, and 

requested that NOAA prepare the 

regulations. 

II. Summary of the Changes to the 

Regulations 

This rule amends the regulations for 

GRNMS by prohibiting the use of all 

spearfishing gear in the Sanctuary. 

Specifically, this rule eliminates the 

phrase ‘‘spearfishing gear without 

powerheads’’ from the list of allowable 

gear set forth at 15 CFR 922.92(a)(5)(i). 

This action also prohibits the possession 

of spearfishing gear in GRNMS, except 

when stowed on a vessel and not 

available for immediate use, and only 

while passing through the Sanctuary 

without interruption. Section 922.91(6) 

has also been revised for greater clarity 

and to correct an unintended result that 

was contained in the proposed rule (74 

FR 9378, March 4, 2009). As proposed, 

possession of all fishing gear except rod 

and reel and handline gear would have 

been allowed in the Sanctuary only if it 

was stowed on a vessel, not available for 

immediate use, and only if the vessel 

was passing through the Sanctuary 

without interruption. As revised, the 

language of the amended regulation is 

consistent with the current regulations 

that were promulgated in 2006 and 

reflects NOAA’s intent to allow vessels 

to enter and stop in the Sanctuary with 

types of fishing gear on board other than 

rod and reel and handline gear, (except 

spearfishing gear), provided that the 

gear is stowed and not available for 

immediate use. The requirement for 

uninterrupted passage is being applied 

only to vessels with spearfishing gear on 

board to facilitate enforcement of the 

prohibitions against spearfishing and 

the use of powerheads, as explained in 

greater detail in the responses to 

comments. 

These and all regulations issued 

pursuant to the National Marine 

Sanctuaries Act are applied in 

accordance with generally recognized 

principles of international law, and in 

accordance with treaties, conventions, 

and other agreements to which the 

United States is a party. No regulation 

shall apply to or be enforced against a 

person who is not a citizen, national, or 

resident alien of the United States, 

unless in accordance with: (1) Generally 

recognized principles of international 

law; (2) an agreement between the 

United States and the foreign state of 

which the person is a citizen; or (3) an 

agreement between the United States 

and the flag state of a foreign vessel, if 

the person is a crewmember of the 

vessel (16 U.S.C. 1435). 


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Federal Register / Vol. 75, No. 33 / Friday, February 19, 2010 / Rules and Regulations 7363 

III. Classification 

A. National Environmental Policy Act 

NOAA has prepared an 

environmental assessment to evaluate 

the impacts of the rulemaking. A finding 

of no significant impact was issued on 

December 23, 2009. Copies are available 

at the address and Web site listed in the 

ADDRESSES section of this rule. 

B. Executive Order 12866: Regulatory 

Impact 

This final rule has been determined to 

be not significant within the meaning of 

Executive Order 12866. 

C. Executive Order 13132: Federalism 

Assessment 

NOAA has concluded this regulatory 

action does not have federalism 

implications sufficient to warrant 

preparation of a federalism assessment 

under Executive Order 13132. 

D. Regulatory Flexibility Act 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration (SBA) 

that this final rule would not have a 

significant economic impact on a 

substantial number of small entities. 

The factual basis for the certification 

was published with the proposed rule. 

No comments were received regarding 

this certification. 

E. Paperwork Reduction Act 

This final rule does not require any 

additional collection of information, 

and therefore no paperwork reduction 

act action is required. Notwithstanding 

any other provision of the law, no 

person is required to respond to, nor 

shall any person be subject to a 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. 

IV. Responses to Public Comments 

1. Comment: The proposed rule 

should not be adopted. 

Response: As a result of a thorough 

review of data, literature, surveys, and 

public and expert comment, NOAA has 

determined the proposed rule should be 

adopted to better protect sanctuary 

resources and facilitate the enforcement 

of the existing prohibition against the 

use of powerheads. Spearfishing can be 

used to selectively target larger fish, and 

can significantly reduce abundance and 

alter the relative size structure of target 

species toward smaller fish. In addition, 

spearfishing can impact ecosystem 

health by altering the composition of the 

overall natural communities of species. 

The largest fish are important as 

predators in maintaining a balanced and 

complete ecosystem; their selective 

removal may cause ecological 

imbalance. Therefore, prohibition of all 

spearfishing gear in GRNMS will 

provide needed protection to the fishes 

and the overall natural live-bottom 

community for which the sanctuary was 

designated. In addition, the combination 

of the absence of charter spearfishing 

activity at GRNMS and the abundant 

substitution opportunities nearby lead 

to the conclusion that a prohibition on 

spearfishing at GRNMS would result in 

no measurable economic impact. 

2. Comment: The proposed action will 

set a precedent of compromising fishing 

rights. 

Response: NOAA disagrees that the 

action establishes a precedent. NOAA 

considers the need for regulations in 

each national marine sanctuary 

individually, based on a rigorous 

analysis of the circumstances at each 

location. The promulgation of a 

regulation in one sanctuary does not 

automatically result in an export of that 

regulation to other sanctuaries. 

3. Comment: The decision to ban 

spearfishing gear in GRNMS was made 

on biased, unsubstantiated information; 

the action is unwarranted, 

discriminatory and arbitrary. 

Response: NOAA disagrees. As noted 

in the response to comment #1, the 

action to ban spearfishing was carefully 

considered after evaluation of the best 

science available. The proposed rule is 

based on multiple, scientifically-sound, 

peer-reviewed studies of the biological 

impacts of spearfishing activities in 

numerous locations around the world. 

The socioeconomic surveys and 

analysis methods were based on OMBapproved guidelines. These methods 

have been used in the past for other 

socioeconomic studies (e.g.: FKNMS, 

CINMS and Dry Tortugas Ecological 

Reserve in Florida.) The purpose of the 

socioeconomic review—which showed 

there would be little economic impact— 

was not to enumerate the number of 

spearfishermen, but to evaluate the 

overall economic impact of a ban, 

including alternatives to a ban. 

In addition, GRNMS has learned that 

allowing spearfishing makes it difficult 

to enforce the prohibition against 

powerheads, due to the similarity in the 

gear. The decision to prohibit 

spearfishing is justified for this separate, 

additional reason. See response to 

comment 16, below. 

4. Comment: Data are unclear or 

unknown regarding the percentages of 

take between spearfishing and rod and 

reel fishing. 

Response: NOAA acknowledges that 

the percentage of take between 

spearfishing and rod and reel fishing is 

unknown, not only in GRNMS, but 

regionally. The current level of 

spearfishing activity at GRNMS is 

anticipated to be low and the 

corresponding level of take could also 

be low. It is known that rod and reel 

fishing comprises the majority of 

recreational fishing at GRNMS with the 

majority of rod and reel fishermen 

targeting coastal pelagic species around 

and during tournaments. 

However, impacts from spearfishing 

and impacts from rod and reel fishing 

differ. Scientific evidence indicates that 

larger fish are favored targets of 

recreational spearfishermen. 

Spearfishing allows fishermen to more 

effectively select for larger individuals 

within target species populations. 

Spearfishing has been shown to remove 

greater biomass of reef fishes than rod 

and reel fishing relative to effort 

expended. Scientific research has also 

found that the intrinsic vulnerability of 

fish populations under pressure is 

exacerbated by spearfishing. SCUBAsupported spearfishing is likely to have 

a significantly greater catch per unit 

effort than non-SCUBA-supported 

spearfishing. The effectiveness and 

efficiency of SCUBA-supported 

spearfishing has resulted in bans on this 

activity in numerous parts of the world. 

5. Comment: Fishing regulatory 

discard figures in the rulemaking are 

wrong. 

Response: NOAA has reconsidered 

the 3 percent figure that was cited in the 

draft environmental assessment as 

regulatory discards by spearfishing. This 

figure does not apply to this action 

because the discards in the referenced 

study included lobster, which are not 

known to be a target of spearfishing at 

GRNMS. Nevertheless, the best available 

data on regulatory discards (fish caught 

but discarded due to size restrictions) 

indicates that a small percentage of fish 

speared may be discarded and that some 

percentage of fish also escape with spear 

induced injuries. 

6. Comment: GRNMS lacks sufficient 

baseline data to determine the effect of 

the prohibition on spearfishing over 

time. 

Response: NOAA disagrees that there 

is a lack of baseline information on fish 

size and abundance. NOAA has 

conducted visual fish censuses for 

almost 20 years, resulting in information 

on fish size and abundance in the 

sanctuary. NOAA anticipates that future 

censuses will provide information that 

can be used to detect a change in fish 

size and abundance over time. 


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7364 Federal Register / Vol. 75, No. 33 / Friday, February 19, 2010 / Rules and Regulations 

7. Comment: GRNMS’s assumption 

that spearfishing targets larger, more 

reproductively-valuable fish is incorrect 

for the following reasons: 

• There is no scientific evidence that 

spearfishing targets larger fish and that 

taking larger fish decreases reproductive 

capacity of breeding stock; 

• There is no scientific evidence to 

show there is more impact on specific 

kinds and sizes of fish from spearfishing 

than rod and reel fishing; 

• Spearfishermen must harvest larger 

fish due to catch size limits; 

• Spearfishermen do not harvest the 

larger fish because fish swim away from 

spearfishermen; 

• Spearfishermen can harvest the 

largest and most prolific species in 

tropical clear water, but not in waters 

off Georgia where visibility is poor and 

target species are migratory in nature; 

• The lack of larger individual fish at 

GRNMS may be due to lack of food 

supply and not spearfishing. 

Response: Scientific evidence 

indicates that larger fish are favored 

targets of recreational spearfishermen. 

Spearfishing also allows fishermen to 

more effectively select for larger 

individuals within target species 

populations. 

Spearfishing is an efficient harvesting 

activity that can significantly alter 

abundance and size structure of target 

species toward fewer and smaller fish 

by selective removal of larger individual 

fish. The removal of larger individual 

fish of the target species leaves behind 

smaller individuals to spawn. Over time 

this can decrease the size and age at 

sexual maturity and decrease the 

average size of the population. 

Studies of areas where fishing 

pressure has been removed have shown 

that populations of spearfishing target 

species, often larger predatory fish such 

as snapper and grouper, have improved 

in size distribution and, often, in fish 

abundance. While a ban on spearfishing 

would result only in the removal of a 

small amount of fishing pressure at 

GRNMS, NOAA believes that the 

removal of selected targeting of larger 

predatory fish, which is typical of 

spearfishing, may result in more robust 

populations. 

In addition, selectively removing 

larger individuals from populations of 

protogynous (sex-changing) species can 

make such populations susceptible to 

sperm limitation. This is especially true 

for species such as gag grouper, a 

regionally overfished, protogynous 

resident of GRNMS, that form small 

spawning aggregations. Vulnerable prespawning aggregations of gag occur at 

GRNMS. 

Reduction in the larger predatory 

fishes can also have a ‘‘top-down’’ effect 

on fish assemblages by allowing other 

fish populations to increase, altering the 

composition of the overall natural 

community of species, including 

invertebrates. The largest fish are 

important as predators in maintaining a 

balanced and complete ecosystem; their 

selective removal may cause ecological 

imbalance. 

Many snapper-grouper species of fish 

are regionally overfished or undergoing 

overfishing. All indications are that 

large individuals of the targeted 

snapper-grouper species in GRNMS are 

already limited. Large individual 

snapper-grouper fish are a source of 

reproductive abundance for the 

sanctuary. Recent research using tagging 

techniques is showing a high amount of 

site fidelity, versus migratory behavior, 

by individual snapper and grouper fish 

at GRNMS. All indications are that food 

supply for the top predator fish species 

is abundant in GRNMS. 

Other studies of acoustically-tagged 

snapper and grouper fish in GRNMS 

also seem to indicate site fidelity, 

making these resident fish more 

vulnerable to spearfishing. Although the 

overall level of spearfishing at GRNMS 

is low, recent research suggests that a 

very low level of increased fishing 

pressure on the sanctuary’s ledges could 

reduce local abundance of snappergrouper complex species within a short 

amount of time. Compared to the no 

action alternative, the proposed action 

is expected to prevent potential negative 

impacts to the sanctuary’s large 

predatory fish species. This may in turn 

have a positive effect on the larger 

ecosystem as a whole by maintaining its 

natural balance. 

NOAA has found no scientific 

references indicating decreased 

visibility changes the preference of 

larger fish as the target for 

spearfishermen, or that spearfishermen 

are unable to harvest larger fish because 

the larger fish swim away from them. 

8. Comment: A study of private, boatbased spearfishing should be done to 

show the full socioeconomic impact of 

the proposed rule. 

Response: Although NOAA did not 

conduct a study of private, boat-based 

spearfishing, the socioeconomic study 

showed the existence of adequate 

substitution areas for spearfishing in the 

vicinity of GRNMS for charter boats. 

This suggests that there are nearby 

opportunities as well for private-boat 

based spearfishing. Therefore, NOAA 

believes that any potential displacement 

caused by the proposed action could be 

mitigated by the presence of 

substitution areas. 

9. Comment: Spearfishing 

opportunities are limited outside of 

GRNMS; GRNMS is best location for 

small boats. 

Response: The socioeconomic survey 

shows there are multiple—and 

preferred—substitution areas to 

spearfish in the vicinity. Some of these 

are at a shorter distance from shore than 

GRNMS and thus a good destination for 

smaller boats. 

10. Comment: The proposed rule is 

unnecessary because there are so few 

people spearfishing in GRNMS; 

therefore, the no action alternative is 

preferred. 

Response: While the current number 

of divers spearfishing within GRNMS 

appears to be small, as stated above (see 

response to comment #7), spearfishing 

is an efficient harvesting gear that 

selectively targets larger fish relative to 

other fishing gears and can significantly 

alter abundance and size structure of 

targeted species toward fewer and 

smaller fish. Prohibition of all 

spearfishing gear in GRNMS will 

enhance enforcement for the prohibition 

against the use of powerheads. Allowing 

spearfishing at any level undermines the 

enforcement of this restriction. In 

addition, although the overall level of 

spearfishing at GRNMS is low, recent 

research suggests that a very low level 

of increased fishing pressure on the 

sanctuary’s ledges could reduce local 

abundance of snapper-grouper complex 

species within a short amount of time. 

11. Comment: NOAA should establish 

zones in the sanctuary where 

spearfishing would be allowed and 

zones where spearfishing would be 

prohibited instead of banning 

spearfishing gear throughout the 

sanctuary; or NOAA should at least 

conduct controlled impact studies of 

spearfishing in GRNMS. 

Response: Given the priorities for 

resource protection and research and 

the relatively small size of GRNMS, 

zoning for allowed and prohibited 

spearfishing activities would be less 

effective, more difficult to enforce, and 

provide less protection to sanctuary 

resources. The costs associated with 

zoning (e.g., controlled impact studies, 

outreach and public awareness) and the 

complexities for user compliance and 

law enforcement would also complicate 

management of the sanctuary. 

12. Comment: Spearfishing is 

beneficial and should not be eliminated 

from GRNMS for the following reasons: 

• Spearfishing is a selective form of 

fishing with no bycatch; 

• There is no marine debris 

associated with spearfishing; 

• Spearfishermen could contribute to 

research data. 


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Response: NOAA acknowledges that 

spearfishing generates little marine 

debris. Nevertheless, spearfishing gear 

and ammunition shells associated with 

powerhead use have been found 

discarded (i.e., debris) on the bottom at 

GRNMS. The properties of spearfishing 

gear are quite selective and thus could 

result in low waste (e.g., regulatory 

discards or bycatch). As stated above 

(see response to comment #5) NOAA 

has determined that the operation of 

spearfishing gear can result in some 

regulatory discard. Also, the benefit of 

selectivity is dependent upon what the 

fisherman is selecting for and the ability 

of the targeted fish population to sustain 

the pressure. As noted above, the 

selectivity of spearfishing gear allows 

spearfishermen to often remove large 

individuals within the target 

population. A slight increase in the 

fishing pressure at GRNMS could lead 

to significant impact. Studies of areas 

where fishing pressure has been 

removed have shown that populations 

of spearfishing target species, often 

larger predatory fish such as snapper 

and grouper, have improved in size 

distribution and, often, in fish 

abundance. Studies also show that 

spearfishing can alter fish behavior. Fish 

are learning to hide from divers and 

sometimes move to less beneficial 

habitat as a result. 

13. Comment: The proposed rule 

would unfairly restrict the number of 

fish allocated to spearfishermen and 

unfairly restrict access to spearfishing 

harvest. 

Response: As described above in the 

responses to comments 8 and 9, 

numerous and preferred alternatives 

exist in the vicinity of GRNMS for 

charter spearfishing, thus access and 

harvest opportunities are not unfairly 

restricted. 

14. Comment: The proposed rule 

punishes law-abiding spearfishermen 

who don’t use prohibited powerheads in 

GRNMS. 

Response: The reason for this action 

is not only to facilitate enforcement of 

the powerhead ban. It is also to protect 

sanctuary resources from the impacts of 

all spearfishing activities. 

15. Comment: If spearfishing is 

banned in GRNMS, rod and reel fishing 

should also be banned; where fishing is 

allowed, spearfishing should be 

allowed. 

Response: Impacts from spearfishing 

and impacts from rod and reel fishing 

differ. See response to comment #7 

above. 

16. Comment: The law enforcement 

rationale to prohibit spearfishing gear in 

GRNMS is flawed for the following 

reasons: 

• Spearfishermen using powerheads 

and powerheaded fish should be easy to 

detect; 

• The fact that there have been no law 

enforcement cases made in GRNMS of 

spearfishermen using powerheads 

indicates that powerhead use is not an 

issue; 

• Evidence of powerhead use in 

GRNMS is unsubstantiated; 

• Prohibiting the use of spearfishing 

gear will not result in effective law 

enforcement due to limited law 

enforcement resources. 

Response: Although the use of 

powerheads is prohibited at GRNMS, 

powerhead spear tips and spent shells 

found in the sanctuary indicate that this 

gear has been used since the ban went 

into place. Powerheads are so closely 

associated with spearguns that it is 

difficult to determine from a distance 

whether a speargun has a powerhead. 

Because the powerhead may be removed 

without detection upon approach by 

enforcement, there may be difficulties 

proving that a speargun with a 

powerhead was in the sanctuary. Proof 

may not be self-evident from the fish 

itself, which may require forensic 

testing to determine, if possible, the 

method of injury or harvest sufficient 

for evidentiary purposes. Law 

enforcement officials have expressed the 

desire to prohibit the use of all 

spearguns in order to effectively enforce 

the powerhead prohibition. While 

NOAA acknowledges the need to 

increase enforcement presence in 

sanctuaries in general, the proposed 

action will better protect resources 

within the sanctuary by facilitating 

effective enforcement of the existing 

prohibition against the use of 

powerheads. 

17. Comment: Law enforcement 

efforts should be increased to address 

concerns on the use of powerheads 

instead of banning all spearfishing gear. 

Response: See response to comment 

#16 above. The way that powerheads are 

designed and used make them difficult 

to distinguish from spearguns that are 

not equipped with powerheads. 

Increasing enforcement effort for an 

activity that may be extremely difficult 

to detect is also not an efficient or 

reasonable approach to addressing the 

issue. 

18. Comment: Spearfishing gear (i.e., 

powerhead) is easily stowed away when 

not in use, so enforcement relies largely 

on the rare coincidence of an officer 

watching while spearfishing gear is 

pulled out or is already in use. 

Response: NOAA agrees that there is 

difficulty in enforcing the existing 

regulation prohibiting spearfishing with 

a powerhead because the gear can be 

easily concealed or discarded without 

detection. See response to comment 19. 

19. Comment: A complete ban on 

spearfishing gear in GRNMS will aid 

law enforcement in the sanctuary; 

powerhead equipment can be jettisoned 

without notice during an approach by 

law enforcement personnel. 

Response: NOAA agrees that law 

enforcement will be greatly enhanced 

with a prohibition on all spearfishing 

gear and with the ‘‘no stopping’’ 

provision for transit if spearfishing gear 

is on board. As noted above, illegal 

powerhead spearfishing is difficult to 

detect when spearfishing gear is 

allowed. Powerheads are generally 

small attachments to spearfishing gear 

that allow the use of ammunition 

cartridges to harvest fish. The close 

association between a speargun and a 

powerhead makes it difficult for law 

enforcement officers to detect from a 

distance. A powerhead can also easily 

be jettisoned, hidden or dropped into 

the water. 

20. Comment: NOAA should prohibit 

all non-research activities in GRNMS to 

enhance law enforcement capacity, 

which is subject to insufficient 

resources, and to achieve the purposes 

of the NMSA and GRNMS designation. 

Response: The scope of this action is 

limited to problems related to 

spearfishing and enforcement of the 

prohibition of powerhead spearfishing 

in particular. Prohibiting spearguns is 

necessary to ensure adequate law 

enforcement of the powerhead 

prohibition. In addition to the primary 

purpose of resource protection under 

the National Marine Sanctuaries Act 

(NMSA), one of the purposes of the 

national marine sanctuaries is to ‘‘to 

facilitate to the extent compatible with 

the primary objective of resource 

protection, all public and private uses of 

the resources of these marine areas not 

prohibited pursuant to other authorities’’ 

(16 U.S.C. 1431(b)(6)). Therefore, NOAA 

believes that banning all recreational 

activities throughout GRNMS to 

enhance law enforcement is not 

consistent with the purposes and 

policies of the NMSA. 

21. Comment: No fishing of any kind 

should be permitted in any marine 

sanctuary. 

Response: Each sanctuary in the 

national marine sanctuary system is 

unique. One of the purposes and 

policies of the NMSA is to ‘‘facilitate to 

the extent compatible with the primary 

objective of resource protection, all 

public and private uses of the resources 

of these marine areas not prohibited 

pursuant to other authorities.’’ Given 

this mandate, NOAA must consider all 

uses of a marine sanctuary and make a 


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7366 Federal Register / Vol. 75, No. 33 / Friday, February 19, 2010 / Rules and Regulations 

case-by-case determination of 

compatibility with the Act’s primary 

objective of resource protection. 

22. Comment: Spearfishing is a threat 

to the purpose and goals of GRNMS and 

the primary purpose of resource 

protection. 

Response: NOAA agrees that given the 

circumstances and conditions at 

GRNMS continued spearfishing, 

particularly with powerheads, would 

make harvest of large snapper-grouper 

species more likely and could 

complicate achievement of GRNMS 

goals as outlined in the purposes for 

designation of the sanctuary and in the 

purposes and policies of the NMSA. 

23. Comment: Although NOAA 

appears unable to provide specific data 

as to the quantity of spearfishing that 

occurs in GRNMS, a spearfishing ban 

will likely address at least one of the 

causes for declines in larger fish and 

fish populations and is worth adopting. 

Response: As noted above, impacts 

from spearfishing and impacts from rod 

and reel fishing differ. Spearfishing has 

generally been shown to target larger 

fish and remove more biomass per unit 

of effort than recreational fishermen 

using rod and reel gear. A recent 2008 

study found that free-diving (nonSCUBA) spearfishermen removed larger 

fish than rod and reel fishermen and 

that they removed more biomass per 

unit of effort, if baitfish are excluded. 

The study also noted that SCUBAsupported spearfishing is likely to have 

a significantly greater catch per unit of 

effort than that found in their study. The 

intrinsic vulnerability of fish 

populations under pressure is 

exacerbated by spearfishing. The 

effectiveness and efficiency of SCUBAsupported spearfishing have resulted in 

bans on this activity in numerous parts 

of the world. 

A ban on spearfishing will protect 

resources. NOAA will continue to 

monitor fish size and abundance in 

GRNMS after the prohibition is in place, 

using that information to detect changes 

to the larger fish population over time. 

NOAA agrees that a ban on all 

spearfishing gear in GRNMS and a 

provision to transit without stopping if 

spearfishing gear is on board a vessel 

will enhance NOAA’s ability to protect 

fish and other natural marine resources, 

particularly fish of the snapper-grouper 

species complex which are in decline 

regionally. 

24. Comment: There should be no 

spearfishing allowed in GRNMS; a 

decline in abundance and size of 

targeted fish species in GRNMS is cause 

to ban spearfishing gear. 

Response: NOAA has determined that 

the preferred alternative to prohibit all 

spearfishing gear in GRNMS will 

enhance the capabilities of law 

enforcement to protect resources such as 

large, reproductively-valuable 

individual fish in the sanctuary. 

Compared to the no action alternative, 

the proposed action is expected to 

prevent potential negative impacts, and 

as a result to improve, measurably but 

not significantly, the condition of 

sanctuary’s biological resources. 

According to NOAA’s National 

Marine Fisheries Service, some reefassociated fish species are regionally 

overfished (snowy grouper, black sea 

bass and red porgy), approaching 

overfished status (gag) and/or 

undergoing overfishing (vermilion 

snapper, red snapper, snowy grouper, 

red grouper, black sea bass, gag, 

speckled hind, warsaw grouper, tilefish 

and black grouper). Gag and scamp have 

decreased in abundance in visual 

census transects at GRNMS, and lengthfrequency measurements of black sea 

bass, gag and scamp (from trap and 

visual census data) indicate that a large 

portion of the population is removed 

upon reaching minimum size, either by 

fishing or by migration out of the 

sanctuary. The reduced abundance of 

selected key species may inhibit full 

community development and function 

in GRNMS. 

25. Comment: Spearfishing by its 

nature encourages taking of 

reproductively mature (larger), more 

successful members of the fisheries 

communities at GRNMS; therefore, 

spearfishing should be banned in 

GRNMS. 

Response: NOAA agrees. See response 

to comment #7. 

26. Comment: Spearfishing activities 

are increasing; there is more efficiency 

with the current use of camouflage 

wetsuits, mirrored lenses in dive masks, 

and more powerful spearguns. 

Response: NOAA shares concerns 

expressed by this commenter that gear 

is available to spearfishing enthusiasts 

for the purpose of increasing 

spearfishing harvest efficiency. That 

concern highlights the need to protect 

the limited resources in GRNMS from 

activities that could reduce predator fish 

abundance thus altering the natural livebottom community of the sanctuary. 

27. Comment: How will the presence 

of increased numbers of large predatory 

fish impact other smaller fish species 

and the availability of food for other 

residents of the reef? 

Response: Increased numbers of large 

predatory fish in GRNMS would be 

expected to result in a more natural 

community balance. Scientists, in fact, 

have commented on the absence of 

numbers of large predatory fish which 

would be expected to be found in 

GRNMS. Reduction/absence in the 

larger predatory fishes can have a ‘‘topdown’’ effect on fish assemblages by 

allowing other fish populations to 

increase, altering the composition of the 

overall natural community of species, 

including invertebrates. The largest fish 

are important as predators in 

maintaining a balanced and complete 

ecosystem; their selective removal 

causes ecological imbalance. 

28. Comment: No studies have been 

done on the effects of the no-anchoring 

rule, which was banned in part to 

prevent spearfishermen from taking fish 

around anchor lines. 

Response: The prohibition on 

anchoring in GRNMS was adopted to 

protect bottom habitat from anchor 

damage, thus enhancing the overall 

health of the sanctuary’s natural systems 

that depend on the hard bottom and the 

invertebrates attached and growing (71 

FR 60055). The purpose of the anchor 

prohibition was not related to the 

prevention of spearfishing around 

anchor lines. 

29. Comment: Stop commercial 

fishing to protect fish instead of banning 

spearfishing gear in GRNMS. 

Response: GRNMS regulations allow 

only rod and reel, handline, and 

spearfishing gear without powerheads. 

There is little to no indication that 

commercial fishing takes place in 

GRNMS. 

30. Comment: Some spearfishermen 

may want to just dive without spearing 

in GRNMS when transiting through the 

sanctuary after a spearfishing trip 

further offshore, but they are not 

permitted to stop with spearfishing gear 

on board. 

Response: NOAA considered an 

alternative allowing boats to stop in the 

sanctuary with spearfishing gear, 

provided it was stowed and unavailable 

for use. That alternative was eliminated 

because NOAA found that it did not 

meet the purpose and need for this 

action. The ability to more effectively 

enforce GRNMS regulations, one of the 

purposes of this action, would be 

further compromised under this 

alternative. Law enforcement officials 

have expressed concerns about 

enforcing a provision that would allow 

stopping when spearfishing gear is on 

board even if it is stowed. 

31. Comment: Fishing pressure will 

increase on other areas outside of 

GRNMS, and/or rod and reel fishing 

will increase in GRNMS while 

spearfishing increases outside of 

GRNMS. 

Response: NOAA acknowledges that 

fishing pressure could increase outside 

of GRNMS as a result of this action. 


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Federal Register / Vol. 75, No. 33 / Friday, February 19, 2010 / Rules and Regulations 7367 

However, given the relatively small 

amount of spearfishing that seems to 

occur in GRNMS, and the indication 

from surveys that most spearfishing 

activity already occurs outside of the 

sanctuary, a prohibition on spearfishing 

is not likely to result in significant 

changes in fishing activities in or 

outside of the sanctuary. 

32. Comment: Size limits could 

address the problem of spearfishing 

selectively targeting larger fish. 

Response: NOAA interprets the 

comment to mean that rather than 

banning spearfishing altogether, NOAA 

should consider banning the take of 

large fish by spearfishing (i.e., 

maximum size limit). The suggestion 

provided by the commenter would not 

address the powerhead ban enforcement 

issue, which is one of the purposes of 

this action. 

33. Comment: NOAA should limit 

fishing to only those fish species that 

are not at risk (e.g., king mackerel) to 

address the mandate to protect 

resources while allowing compatible 

uses. 

Response: This comment is suggesting 

that NOAA should restrict all kinds of 

fishing activities and gear, limiting them 

only to fish species that are not at risk. 

This is beyond the scope of this action 

(see response to comments #20, 21, 22). 

34. Comment: NOAA should 

postpone a decision on the proposed 

rule and work with spearfishermen to 

thoroughly research the issue. 

Response: NOAA postponed its 

previous decision to ban spearfishing in 

2006, for the purpose of gathering 

further socioeconomic information on 

the impact of a possible ban on all 

spearfishing in GRNMS. In addition, 

NOAA has thoroughly researched the 

possible detrimental effects to the 

natural marine resources of GRNMS that 

NOAA is mandated to protect. 

Therefore, NOAA is satisfied with the 

level of information on natural marine 

resources as well as socioeconomic 

impact used as a basis for this action. 

V. References for Citations 

All references that NOAA used as a 

basis for this rule may be found in the 

environmental assessment (EA), which 

is available as specified in the 

ADDRESSES section. 

List of Subjects in 15 CFR Part 922 

Administrative practice and 

procedure, Coastal zone, Fishing gear, 

Marine resources, Natural resources, 

Penalties, Recreation and recreation 

areas, Wildlife. 

(Federal Domestic Assistance Catalog 

Number 11.429 Marine Sanctuary Program) 

Dated: February 2, 2010. 

Holly Bamford, 

Acting Assistant Administrator for Ocean 

Services and Coastal Zone Management. 

■ Accordingly, for the reasons set forth 

above, NOAA is amending part 922, title 

15 of the Code of Federal Regulations, 

as follows: 

PART 922—NATIONAL MARINE 

SANCTUARY PROGRAM 

REGULATIONS 

■ 1. The authority citation for part 922 

continues to read as follows: 

Authority: 16 U.S.C. 1431 et seq. 

■ 2. Amend § 922.92: 

■ a. By revising paragraph (a)(5)(i); 

■ b. By revising paragraph (a)(6); 

■ c. And by adding a new paragraph 

(a)(11). 

The revisions and addition read as 

follows: 

§ 922.92 Prohibited or otherwise regulated 

activities. 

(a) * * * 

(5) * * * 

(i) Injuring, catching, harvesting, or 

collecting, or attempting to injure, catch, 

harvest, or collect, any marine organism, 

or any part thereof, living or dead, 

within the Sanctuary by any means 

except by use of rod and reel, and 

handline gear; 

* * * * * 

(6) Using any fishing gear within the 

Sanctuary except rod and reel, and 

handline gear, or for law enforcement 

purposes. 

* * * * * 

(11) Possessing or carrying any fishing 

gear within the Sanctuary except: 

(i) Rod and reel, and handline gear; 

(ii) Fishing gear other than rod and 

reel, handline gear, and spearfishing 

gear, provided that it is stowed on a 

vessel and not available for immediate 

use; 

(iii) Spearfishing gear provided that is 

stowed on a vessel, not available for 

immediate use, and the vessel is passing 

through the Sanctuary without 

interruption; and 

(iv) For law enforcement purposes. 

* * * * * 

[FR Doc. 2010–2808 Filed 2–18–10; 8:45 am] 

BILLING CODE 3510–NK–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

Wage and Hour Division 

29 CFR Part 501 

Announcement of Public Briefings on 

the Changes to the Labor Certification 

Process for the Temporary Agricultural 

Employment of H–2A Aliens in the 

United States 

AGENCIES: Employment and Training 

Administration and Wage and Hour 

Division; Department of Labor. 

ACTION: Notice of meeting. 

SUMMARY: On February 12, 2010, the 

Department of Labor (the Department or 

DOL) amended the H–2A regulations at 

20 CFR part 655 governing the 

certification of temporary employment 

of nonimmigrant workers in temporary 

or seasonal agricultural employment. 

See, Temporary Agricultural 

Employment of H–2A Aliens in the 

United States, Final Rule, 75 FR 6884, 

Feb. 12, 2010 (the Final Rule). The 

Department’s Final Rule also amended 

the regulations at 29 CFR part 501 to 

provide for enhanced enforcement 

under the H–2A program requirements 

when employers fail to meet their 

obligations under the H–2A program. 

The Department has also made changes 

to the Application for Temporary 

Employment Certification, ETA Form 

9142. 

The Final Rule will become effective 

on March 15, 2010. All H–2A program 

users will be required to file their 

applications under the new regulations, 

and to comply with all applicable 

program requirements. 

The Department is issuing this notice 

to announce that it has scheduled three 

public briefings to educate stakeholders, 

program users, and other interested 

members of the public on changes to the 

H–2A program made by the Final Rule 

and on applying for H–2A temporary 

labor certifications under the new 

regulations using the ETA Form 9142. 

As currently planned, the three 

briefings will take place in late February 

and early March of 2010 in San Diego, 

California; Dallas, Texas; and Raleigh, 

North Carolina. This notice provides the 

public with locations, dates, and 

registration information regarding the 

briefings. These briefings are subject to 

change and/or cancellation without 

further notice in the Federal Register. 

However, the Department will notify 


srobinson on DSKHWCL6B1PROD with RULES