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.
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: http://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 http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter N/A in the required field if you wish to remain anonymous).
To submit comments through the Federal e-Rulemaking Portal: http://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 http://www.regulations.gov/#!faqs or the Help section at http://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 http://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
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
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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.