Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 38, 64300-64303 [2012-25823]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 77, Number 203 (Friday, October 19, 2012)]
[Proposed Rules]
[Pages 64300-64303]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25823]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 120717247-2533-01]
RIN 0648-BC37


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Amendment 38

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 proposes to implement management measures described in 
Amendment 38 to the Fishery Management Plan for the Reef Fish Resources 
of the Gulf of Mexico (FMP) prepared by the Gulf of Mexico (Gulf) 
Fishery Management Council (Council). If implemented, this rule would 
modify post-season accountability measures (AMs) that affect shallow-
water grouper species (SWG), change the trigger for AMs, and revise the 
Gulf reef fish framework procedure. The intent of this proposed rule is 
to achieve optimum yield (OY) while ensuring the fishery resources are 
utilized efficiently.

DATES: Written comments must be received on or before November 19, 
2012.

ADDRESSES: You may submit comments on the proposed rule identified by 
``NOAA-NMFS-2012-0149'' by any of the following methods:
     Electronic submissions: Submit electronic comments via the 
Federal e-Rulemaking Portal: https://www.regulations.gov. Follow the 
``Instructions'' for submitting comments.
     Mail: Steve Branstetter, Southeast Regional Office, NMFS, 
263 13th Avenue South, St. Petersburg, FL 33701.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://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 field if you wish to 
remain anonymous).
    To submit comments through the Federal e-Rulemaking Portal: https://www.regulations.gov, enter ``NOAA-NMFS-2012-0149'' in the search field 
and click on ``search.'' After you locate the proposed rule, click the 
``Submit a Comment'' link in that row. This will display the comment 
web form. You can then enter your submitter information (unless you 
prefer to remain anonymous), and type your comment on the web form. You 
can also attach additional files (up to 10 MB) in Microsoft Word, 
Excel, WordPerfect, or Adobe PDF file formats only.
    Comments received through means not specified in this rule will not 
be considered.
    For further assistance with submitting a comment, see the 
``Commenting'' section at https://www.regulations.gov/#!faqs or the Help 
section at https://www.regulations.gov.
    Electronic copies of Amendment 38, which includes an environmental 
assessment, fishery impact statement, regulatory flexibility act 
analysis, and a regulatory impact review, may be obtained from the 
Southeast Regional Office Web Site at https://sero.nmfs.noaa.gov/sf/GrouperSnapperandReefFish.htm.

FOR FURTHER INFORMATION CONTACT: Steve Branstetter, Southeast Regional 
Office, NMFS, telephone: 727-824-5305; email: 
Steve.Branstetter@noaa.gov.

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf 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 Magnuson-Stevens Act requires NMFS and regional fishery 
management councils to prevent overfishing and achieve, on a continuing 
basis, the OY for federally managed fish stocks. The reauthorized 
Magnuson-Stevens Act, as amended through January 12, 2007, requires the 
councils to establish annual catch limits (ACLs) for each stock/stock 
complex and AMs to ensure these ACLs are not exceeded. The intent of 
this proposed rule is to modify post-season recreational AMs for SWG 
species (i.e., gag, red grouper, black grouper, scamp, yellowfin 
grouper, and yellowmouth grouper) and allow modifications to AMs for 
FMP species in the future under the FMP framework procedure to achieve 
OY while ensuring the fishery resources are utilized efficiently.
    Through Amendment 30B to the FMP (74 FR 17603, April 16, 2009), 
NMFS established AMs for gag and red grouper. These AMs included a 
provision that if the recreational sector ACL for gag or red grouper is 
exceeded in the current year, the recreational season for all SWG is 
shortened the following year to ensure that the gag or red grouper 
recreational sector ACL is not exceeded again the following year. 
Regulations implemented through Amendment 32 to the FMP (77 FR 6988, 
February 10, 2012) added more AMs, including in-season closures for gag 
and red grouper, and overage adjustments for gag and red grouper if 
they are overfished.

Management Measures Contained in This Proposed Rule

    If implemented, this rule would modify post-season AMs for SWG 
species, change the trigger for AMs, and revise the Gulf reef fish 
framework procedure. This rule would modify the post-season AMs for gag 
and red grouper so that the shortening of the season following a season 
with an ACL overage applies only to the species with landings that 
exceeded the ACL the prior year. Modifying the AMs would improve the 
likelihood of achieving OY for red grouper and avoid unnecessary 
closures of all SWG species (i.e., gag, red grouper, black grouper, 
scamp, yellowfin grouper, and yellowmouth grouper).
    The current method for determining if post-season AMs have been 
triggered for red grouper or gag is to compute a 1 to 3-year moving 
average of recreational landings, and to compare that moving average of 
landings to the ACL. However, the use of a moving average has not been 
practicable due to the frequent changes that have occurred in the ACLs. 
In addition, the use of moving averages could potentially delay the 
implementation of AMs by unduly masking sizeable harvest overages and 
potentially slowing down the recovery of stocks under rebuilding. This 
rule would remove the 3-year moving average, allowing AMs to be based 
on a comparison of the ACL to the current year's landings. A simple 
comparison of the current year's landings to the ACL could provide 
greater protection to the gag and red grouper stocks, be easier for

[[Page 64301]]

fishermen to understand, and be less burdensome to administer.
    This rule proposes to revise the list of management measures 
contained in the regulations that may be established or modified by the 
framework procedure specified in the FMP to match those that are 
contained in the FMP. Amendment 38 would add a list of the AMs that may 
be revised through the Gulf reef fish framework process. Typically, the 
process for implementing framework actions take less than a year and 
the actions are effective until amended. Changes to AMs through the 
framework may result in faster implementation of measures beneficial to 
fish stocks and fishery participants. No changes to the regulatory text 
are required to implement the action to add AMs to the framework 
process because NMFS previously erroneously included AMs in Sec.  
622.48(d) in the rule implementing the Generic ACL Amendment (76 FR 
82044, December 29, 2011). Sale and purchase restrictions, and transfer 
at sea provisions were also previously erroneously included in the rule 
implementing the Generic ACL Amendment. Thus, NMFS proposes to remove 
these two items from the list in Sec.  622.48(d). NMFS also proposes 
removing total allowable catch (TAC) from Sec.  622.48(d). Total 
allowable catch has been included in the regulations since the 
adjustment of management measures was first codified in 1992 (57 FR 
11914, April 8, 1992). With the implementation of ACLs and ACTs, TAC is 
no longer used in the management of Gulf reef fish.

Additional Measure Contained in Amendment 38

    Amendment 38 would also update language in the framework procedure 
related to Council advisory panels and committees. More general 
language in reference to Council committees and advisory panels would 
replace specific references that are no longer accurate.

Other Changes Not Contained in Amendment 38

    In Sec.  622.49, paragraphs (a)(4)(ii)(C) and (a)(5)(ii)(C), NMFS 
proposes to clarify language regarding the management of an ACL 
overage. Currently, if gag or red grouper are overfished and the ACL is 
exceeded, NMFS deducts the overage from the ACL established for the 
following year and from the ACT, as determined in Sec.  622.49, 
paragraph (a)(4)(ii)(B) or (a)(5)(ii)(B). This means that the overage 
could be deducted from the ACT of the prior fishing year, if the ACT is 
maintained the following fishing year. Conversely, the overage could be 
deducted from the following year's ACT if the best scientific 
information available determines that maintaining the prior year's ACT 
is unnecessary. This process was not made express in the final rule for 
Amendment 32 to the FMP (77 FR 6988, February 10, 2012); however, this 
is consistent with not allowing the ACT to increase above the ACL after 
an overage occurs, maintains a larger buffer between the ACT and ACL 
when an overage occurs, and was the intent of Amendment 32. Thus, NMFS 
proposes to amend the regulations to expressly state that the ACT 
referred to in Sec.  622.49, paragraphs (a)(4)(ii)(C) and 
(a)(5)(ii)(C), is the ACT as determined in Sec.  622.49, paragraph 
(a)(4)(ii)(B) or (a)(5)(ii)(B).
    NMFS also proposes to delete the following sentence in the 
regulations at Sec.  622.49, paragraph (a)(4)(ii)(A) and move it to 
paragraph (a)(4)(ii)(B): ``In addition, the notification will reduce 
the length of the recreational gag fishing season the following fishing 
year by the amount necessary to ensure gag recreational landings do not 
exceed the recreational ACT in the following fishing year.'' This 
change will keep only in-season AMs in paragraph (a)(4)(ii)(A) and 
include the post-season AMs in paragraph (a)(4)(ii)(B).
    Additionally, NMFS identified an inadvertent inconsistency between 
the regulatory text in the proposed rule for Amendment 32 to the FMP 
(76 FR 67656, November 2, 2011) and the second proposed rule for 
Amendment 32 to the FMP (77 FR 1910, January 12, 2012). To correct this 
mistake, in Sec.  622.49, paragraph (a)(4)(ii)(B), NMFS revises the 
phrase ``If gag are not overfished'' to read ``Without regard to 
overfished status,'' and in paragraph (a)(5)(ii)(B), NMFS revises the 
phrase ``If red grouper are not overfished'' to read ``Without regard 
to overfished status.''

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
AA has determined that this proposed rule is consistent with Amendment 
38, 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.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if implemented, would not have 
a significant economic impact on a substantial number of small 
entities. The factual basis for this determination is as follows:
    The purpose of this proposed rule is to modify post-season 
recreational AMs for SWG and allow modifications to AMs for Gulf reef 
fish species in the future under the FMP framework procedure to achieve 
OY while ensuring the fishery resources are utilized efficiently. The 
Magnuson-Stevens Act provides the statutory basis for this proposed 
rule.
    This rule, if implemented, is expected to directly affect 1,376 
vessels that possess a reef fish for-hire permit. The for-hire fleet is 
comprised of charter vessels, which charge a fee on a vessel basis, and 
headboats, which charge a fee on an individual angler (head) basis. The 
average charter vessel is estimated to earn approximately $76,000 (2009 
dollars) in annual revenue, while the average headboat is estimated to 
earn approximately $230,000 (2009 dollars).
    No other small entities are expected to be directly affected by 
this proposed rule.
    The Small Business Administration has established size criteria for 
all major industry sectors in the U.S., including fish harvesters. A 
business involved in the for-hire fishing industry 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 $7.0 million (NAICS code 
713990, recreational industries). Based on the average revenue 
estimates provided above, all for-hire vessels expected to be directly 
affected by this proposed rule are determined for the purpose of this 
analysis to be small business entities.
    Neither of the two actions considered in Amendment 38 and included 
in this proposed rule are expected to result in any reduction in profit 
for any small entities. One action would modify the FMP framework 
procedure, while the other action would revise the post-season AMs for 
SWG species. The proposed modifications to the FMP framework procedure 
would expand the range of management actions that could be taken under 
framework procedures and improve the opportunity to access quality 
advice during the management process. Expanding the range of management 
actions that could be taken under framework procedures is expected to 
result in more responsive and efficient management change, when 
necessary.
    The current framework narrowly defines the groups that can provide 
recommendations to the Council on proposed framework actions. The 
proposed modification would broaden this definition, thereby 
potentially allowing more expert participation to

[[Page 64302]]

inform the management process. As a result, this action is expected to 
result in better and timelier management decisions and increased 
economic benefits to small entities that harvest reef fish. However, 
modifying the FMP framework procedure is an administrative action that 
only indirectly affects small entities. Such entities would be directly 
affected through future management actions taken under the new 
framework procedures. Any affects would be analyzed in those rulemaking 
actions. As a result, because the effects on small entities of 
implementing this action are indirect, this component of the proposed 
rule is outside the scope of the Regulatory Flexibility Act (RFA).
    Accountability measures are intended to ensure harvest overages do 
not occur and to correct or mitigate for overages if they do occur. 
Post-season AMs are invoked only if a harvest overage occurs. Although 
implementing AMs is expected to result in direct economic effects on 
affected small entities, the establishment of AMs, or their 
modification, are administrative actions that are expected to have only 
indirect effects on any small entities. Direct affects of implementing 
AMs would be accounted for in any rulemaking actions applying the AMs. 
Because the proposed action would only modify the current AMs, no 
direct effects are expected to accrue to any small entities. As a 
result, this component of the proposed rule is also outside the scope 
of the RFA.
    However, because implementing post-season AMs is expected to 
restrict fishing operations and result in direct short-term reductions 
in revenue and profit, further discussion of the potential significance 
of these effects is provided. The proposed modification to the AMs is 
expected to result in less restrictive measures than the current AMs, 
by supporting more timely response to harvest overages and limiting any 
necessary corrective harvest restrictions to just gag or red grouper, 
rather than imposing restrictions on fishing for all species in the SWG 
complex. As a result, the proposed modification is expected to result 
in lower short-term adverse economic effects on small entities than the 
current AMs. More timely response to harvest overages is also expected 
to limit resource harm and reduce the scope of necessary corrective 
action, thereby reducing the magnitude of any short-term adverse 
economic effects and better preserving the long-term economic benefits 
to small entities. Limiting corrective action to the harvest of gag or 
red grouper allows the fleet to continue fishing for and harvesting 
other SWG species, along with the continued economic benefits 
associated with these activities. As a result, the proposed changes to 
the AMs are expected to increase economic benefits to small entities 
relative to the status quo.
    While NMFS expects the modifications to the AMs will benefit the 
affected entities, any change is expected to be minor relative to the 
affected vessels' overall fishing effort. Based on 2005-2009 
recreational data, an average of only approximately 2.5 percent of 
charter vessel anglers reported targeting any SWG species. Gag and red 
grouper are the dominant target species in the SWG complex, and account 
for approximately two percent and one percent of charter vessel 
individual angler trips, respectively (overlap prevents summing of 
these, and subsequent, percentages). Between 2005 and 2009, on trips 
where charter vessels targeted SWG species, they targeted gag grouper 
approximately 99 percent of the time, and red grouper 98 percent of the 
time. In other words, if both gag and red grouper are removed from the 
list of targeted SWG species, less than one tenth of one percent of 
charter vessel anglers reported targeting any of the remaining SWG 
species (i.e., Other SWG). Similar data are not available for headboat 
anglers because information on target intent is not collected for this 
sector. However, for the purpose of this analysis, target behavior in 
the charter vessel component of the recreational sector is used as a 
proxy for target behavior in the headboat component of the recreational 
sector. While some individual vessels may be more dependent on the 
subject species, these results indicate that, for the average small 
entity that may be affected by this proposed rule, any economic effects 
are marginal. Additionally, these results represent annual target 
rates. Because any AM implemented will only affect the fishing for a 
portion of the year, the likelihood that any economic effects would be 
significant is further reduced.
    In addition to the two actions considered in Amendment 38 and 
included in this proposed rule, this proposed rule would make three 
changes to the regulatory text in Sec.  622.49. These proposed changes 
are described in the preamble. These changes clarify language 
associated with prior regulatory action and better meet the intent of 
the Council's actions in Amendment 32 to the FMP. As a result, none of 
these proposed changes in the regulatory text would be expected to 
result in any reduction in profits to any small entities. Based on the 
discussion above, NMFS determines that this rule, if implemented, will 
not have a significant economic effect on a substantial number of small 
entities. As a result, an initial regulatory flexibility analysis is 
not required and none has been prepared.
    This proposed rule does not establish any new reporting, record-
keeping, or other compliance requirements.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

    Dated: October 15, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 622 is 
proposed to be amended as follows:

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

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

    Authority: 16 U.S.C. 1801 et seq.

    2. In Sec.  622.48, paragraph (d) is revised to read as follows:


Sec.  622.48  Adjustment of management measures.

* * * * *
    (d) Gulf reef fish. For a species or species group: reporting and 
monitoring requirements, permitting requirements, bag and possession 
limits (including a bag limit of zero), size limits, vessel trip 
limits, closed seasons or areas and reopenings, annual catch limits 
(ACLs), annual catch targets (ACTs), quotas (including a quota of 
zero), accountability measures (AMs), MSY (or proxy), OY, management 
parameters such as overfished and overfishing definitions, gear 
restrictions (ranging from regulation to complete prohibition), gear 
markings and identification, vessel markings and identification, 
allowable biological catch (ABC) and ABC control rules, rebuilding 
plans, and restrictions relative to conditions of harvested fish 
(maintaining fish in whole condition, use as bait).
* * * * *
    3. In Sec.  622.49, paragraphs (a)(4)(ii), (a)(5)(ii)(B), 
(a)(5)(ii)(C), and (a)(5)(ii)(D) are revised to read as follows:


Sec.  622.49  Annual Catch limits (ACLs) and accountability measures 
(AMs).

    (a) * * *

[[Page 64303]]

    (4) * * *
    (ii) * * *
    (A) Without regard to overfished status, if gag recreational 
landings, as estimated by the SRD, reach or are projected to reach the 
applicable ACLs specified in paragraph (a)(4)(ii)(D) of this section, 
the AA will file a notification with the Office of the Federal 
Register, to close the recreational sector for the remainder of the 
fishing year. On and after the effective date of such a notification, 
the bag and possession limit of gag in or from the Gulf EEZ is zero. 
This bag and possession limit applies in the Gulf on board a vessel for 
which a valid Federal charter vessel/headboat permit for Gulf reef fish 
has been issued, without regard to where such species were harvested, 
i.e. in state or Federal waters.
    (B) Without regard to overfished status, and in addition to the 
measures specified in paragraph (a)(4)(ii)(A) of this section, if gag 
recreational landings, as estimated by the SRD, exceed the applicable 
ACLs specified in paragraph (a)(4)(ii)(D) of this section, the AA will 
file a notification with the Office of the Federal Register to maintain 
the gag ACT, specified in paragraph (a)(4)(ii)(D) of this section, for 
that following fishing year at the level of the prior year's ACT, 
unless the best scientific information available determines that 
maintaining the prior year's ACT is unnecessary. In addition, the 
notification will reduce the length of the recreational gag fishing 
season the following fishing year by the amount necessary to ensure gag 
recreational landings do not exceed the recreational ACT in the 
following fishing year.
    (C) If gag are overfished, based on the most recent status of U.S. 
Fisheries Report to Congress, and gag recreational landings, as 
estimated by the SRD, exceed the applicable ACL specified in paragraph 
(a)(4)(ii)(D) of this section, the following measures will apply. In 
addition to the measures specified in paragraphs (a)(4)(ii)(A) and (B) 
of this section, the AA will file a notification with the Office of the 
Federal Register, at or near the beginning of the following fishing 
year to reduce the ACL for that following year by the amount of the ACL 
overage in the prior fishing year, and reduce the ACT, as determined in 
paragraph (a)(4)(ii)(B), by the amount of the ACL overage in the prior 
fishing year, unless the best scientific information available 
determines that a greater, lesser, or no overage adjustment is 
necessary.
    (D) The applicable recreational ACLs for gag, in gutted weight, are 
1.232 million lb (0.559 million kg) for 2012, 1.495 million lb (0.678 
million kg) for 2013, 1.720 million lb (0.780 million kg) for 2014, and 
1.903 million lb (0.863 million kg) for 2015 and subsequent fishing 
years. The recreational ACTs for gag, in gutted weight, are 1.031 
million lb (0.468 million kg) for 2012, 1.287 million lb (0.584 million 
kg) for 2013, 1.519 million lb (0.689 million kg) for 2014, and 1.708 
million lb (0.775 million kg) for 2015 and subsequent fishing years.
    (5) * * *
    (ii) * * *
    (B) Without regard to overfished status, and in addition to the 
measures specified in paragraph (a)(5)(ii)(A) of this section, if red 
grouper recreational landings, as estimated by the SRD, exceed the 
applicable ACL specified in paragraph (a)(5)(ii)(D) of this section, 
the AA will file a notification with the Office of the Federal Register 
to maintain the red grouper ACT, specified in paragraph (a)(5)(ii)(D) 
of this section, for that following fishing year at the level of the 
prior year's ACT, unless the best scientific information available 
determines that maintaining the prior year's ACT is unnecessary. In 
addition, the notification will reduce the bag limit by one fish and 
reduce the length of the recreational red grouper fishing season the 
following fishing year by the amount necessary to ensure red grouper 
recreational landings do not exceed the recreational ACT in the 
following fishing year. The minimum red grouper bag limit for 2014 and 
subsequent fishing years is two fish.
    (C) If red grouper are overfished, based on the most recent Status 
of U.S. Fisheries Report to Congress, and red grouper recreational 
landings, as estimated by the SRD, exceed the applicable ACL specified 
in paragraph (a)(5)(ii)(D) of this section, the following measures will 
apply. In addition to the measures specified in paragraphs 
(a)(5)(ii)(A) and (B) of this section, the AA will file a notification 
with the Office of the Federal Register, at or near the beginning of 
the following fishing year to reduce the ACL for that following year by 
the amount of the ACL overage in the prior fishing year, and reduce the 
ACT, as determined in paragraph (a)(5)(ii)(B), by the amount of the ACL 
overage in the prior fishing year, unless the best scientific 
information available determines that a greater, lesser, or no overage 
adjustment is necessary.
    (D) The recreational ACL for red grouper, in gutted weight, is 1.90 
million lb (0.862 million kg) for 2012 and subsequent fishing years. 
The recreational ACT for red grouper, in gutted weight, is 1.730 
million lb (0.785 million kg) for 2012 and subsequent fishing years.
* * * * *
[FR Doc. 2012-25823 Filed 10-18-12; 8:45 am]
BILLING CODE 3510-22-P