NMFS proposes to implement management measures described in Amendment 37 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) prepared by the Gulf of Mexico Fishery Management Council (Council). If implemented, this rule would revise the commercial and recreational sector's annual catch limits (ACLs) and annual catch targets (ACTs) for gray triggerfish; revise the recreational sector accountability measures (AMs) for gray triggerfish; revise the gray triggerfish recreational bag limit; establish a commercial trip limit for gray triggerfish; and establish a fixed closed season for the gray triggerfish commercial and recreational sectors. Additionally, Amendment 37 would modify the gray triggerfish rebuilding plan. The intent of this rule is to end overfishing of gray triggerfish and help achieve optimum yield (OY) for the gray triggerfish resource in accordance with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
Written comments must be received on or before March 15, 2013.
ADDRESSES: You may submit comments on this document, identified by ``NOAA-NMFS-2012-0199'', by any of the following methods:
Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2012-0199, click the ``Comment Now!'' icon, complete the required fields, and enter or attach your comments.
Mail: Submit written comments to Rich Malinowski, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter ``N/A'' in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.
Electronic copies of Amendment 37, which includes a draft environmental assessment and a regulatory impact review, may be obtained from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Rich Malinowski, Southeast Regional Office, telephone 727-824-5305, email rich.malinowski@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 Act. All gray triggerfish weights discussed in this
proposed rule are in round weight.
Background
The Magnuson-Stevens Act requires NMFS and regional fishery
management councils to prevent overfishing and achieve, on a continuing
basis, the OY from federally managed fish stocks. These mandates are
intended to ensure that fishery resources are managed for the greatest
overall benefit to the nation, particularly with respect to providing
food production and recreational opportunities, and protecting marine
ecosystems. To further this goal, the Magnuson-Stevens Act requires
fishery managers to end overfishing of stocks and to minimize bycatch
and bycatch mortality to the extent practicable.
Status of the Gray Triggerfish Stock
The last Southeast Data, Assessment, and Review (SEDAR) benchmark
stock assessment for gray triggerfish was completed in 2006 (SEDAR 9).
SEDAR 9 indicated that the gray triggerfish stock was both overfished
and possibly undergoing overfishing. Subsequently, Amendment 30A to the
FMP established a gray triggerfish rebuilding plan beginning in the
2008 fishing year (73 FR 38139, July 3, 2008). In 2011, a SEDAR 9
update stock assessment for gray triggerfish determined that the gray
triggerfish stock was still overfished and was additionally undergoing
overfishing. The 2011 SEDAR 9 Update indicated the 2008 gray
triggerfish rebuilding plan had not made adequate progress toward
ending overfishing and rebuilding the stock. NMFS informed the Council
of this determination in a letter dated March 13, 2012. NMFS also
requested that the Council work to end overfishing of gray triggerfish
immediately and to revise the gray triggerfish stock rebuilding plan.
As a way to more quickly implement measures to end overfishing and
rebuild the stock, the Council requested and NMFS implemented a
temporary rule to reduce the gray triggerfish commercial and
recreational ACLs and ACTs (77 FR 28308, May 14, 2012). The temporary
rule also established an in-season AM for the gray triggerfish
recreational sector to be more consistent with the commercial sector
AMs and provide for an additional level of protection to ensure that
the recreational ACL is not exceeded and that the risk of overfishing
is reduced. These interim measures were then extended through May 15,
2013, to ensure that the more permanent measures being developed
through Amendment 37 could be implemented without a lapse in these more
protective management measures (77 FR 67303, November 9, 2012).
Management Measures Contained in This Proposed Rule
This proposed rule would revise the gray triggerfish commercial and
recreational sector ACLs and ACTs (commercial ACT expressed as
commercial quota in the regulatory text), revise the gray triggerfish
recreational sector AMs, revise the gray triggerfish recreational bag
limit, establish a commercial trip limit for gray triggerfish, and
establish a fixed closed season for the gray triggerfish commercial and
recreational sectors.
ACLs and ACTs
This rule would revise the ACLs for the gray triggerfish commercial
and recreational sectors. This rule would also revise the ACTs
(commercial ACT expressed as a quota in the regulatory text) for both
sectors.
The Council's Scientific and Statistical Committee (SSC) reviewed
the gray triggerfish 2011 SEDAR 9 Update. The SSC recommended that the
gray triggerfish acceptable biological catches (ABC) for the 2012 and
2013 fishing years be set at 305,300 lb (138,346 kg). The current gray
triggerfish stock ABC is 595,000 lb (269,887 kg). Based on this
recommendation, the commercial and recreational ACLs and ACTs for the
gray triggerfish need to be updated.
The Magnuson-Stevens Act requires that the FMP contain a mechanism
for specifying ACLs at a level such that overfishing does not occur. An
ACT is a management target established to account for management
uncertainty in controlling the actual catch at or below the ACL. An ACT
is used in the system of AMs so that the ACL is not exceeded.
Therefore, a sector ACT should be set below the sector ACL to allow the
sector to be closed when the ACT is projected to be reached.
In Amendment 30A to the FMP, the Council established a 21 percent
commercial and 79 percent recreational allocation of the gray
triggerfish ABC (73 FR 38139, July 3, 2008). These allocations are used
to set the commercial and recreational sector-specific ACLs. The ABC
recommended by the SSC is 305,300 lb (138,482 kg) and the combined
sector ACLs are equal to the ABC. Based on the allocations established
in Amendment 30A to the FMP, this proposed rule would set a reduced
commercial ACL of 64,100 lb (29,075 kg), and a reduced recreational ACL
of 241,200 lb (109,406 kg).
The Generic Annual Catch Limit Amendment developed by the Council
and implemented by NMFS (76 FR 82044, December 29, 2011) established a
standardized procedure to set sector-specific ACTs based on the ACLs.
ACTs are intended to account for management uncertainty and provide a
buffer that better ensures a sector does not exceed its designated ACL.
The Council chose to use this procedure, which resulted in a 5 percent
buffer between the commercial ACL and ACT, and a 10 percent buffer
between the recreational ACL and ACT. Therefore, this proposed rule
would set the commercial ACT (commercial quota) at 60,900 lb (27,624
kg), and the recreational ACT at 217,100 lb (98,475 kg). The proposed
ACLs and ACTs in this rule are the same as those currently in place as
implemented through the temporary rule (77 FR 28308, May 14, 2012). The
current commercial gray triggerfish quota functions as the commercial
ACT.
AMs
To reduce the risk of overfishing, Amendment 30A to the FMP
established gray triggerfish AMs. AMs are management controls that are
implemented to prevent ACLs from being exceeded (in-season AMs), and to
correct or mitigate overages of the ACL if they occur (post-season
AMs). For the commercial sector, there are currently both in-season and
post-season AMs. The in-season AM closes the commercial sector after
the commercial quota (commercial ACT) is reached or projected to be
reached. Additionally, if the commercial ACL is exceeded despite the
quota closure, the post-season AM would reduce the following year's
commercial quota (commercial ACT) by the amount of the prior-year's
commercial ACL overage.
For the recreational sector, there is currently no in-season AM,
but a post-season AM is in effect. For the recreational sector, if the
recreational ACL is exceeded, NMFS will reduce the length of the
following year's fishing season by the amount necessary to ensure that
recreational landings do not exceed the recreational ACT during the
following year.
In 2008, recreational landings exceeded both the recreational ACT
and ACL. In 2009, the recreational ACT was exceeded. However, in 2010,
recreational landings did not exceed the ACT or ACL. Reduced 2010
recreational landings may be attributable to fishery closures
implemented that year as a result of the Deepwater Horizon MC252 oil
spill. Based on recent trends in recreational landings and anticipated
future recreational effort, the Council and NMFS have determined that
implementing an in-season AM would reduce the risk of exceeding the ACL
in the future. This proposed rule would
replace the current post-season AM with an in-season AM for the
recreational sector to prohibit the recreational harvest of gray
triggerfish (a recreational sector closure) after the recreational ACT
is reached or projected to be reached. This proposed rule would also
add an overage adjustment that would apply if the recreational sector
ACL is exceeded and gray triggerfish are overfished. This post-season
AM would reduce the recreational ACL and ACT for the following year 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.
Commercial Trip Limit
Currently, there is no trip limit for the commercial sector. This
rule proposes to establish a commercial trip limit for gray triggerfish
of 12 fish. This commercial trip limit would be applicable until the
commercial ACT (commercial quota) is reached or projected to be reached
during a fishing year and the commercial sector is closed.
Seasonal Closure of the Commercial and Recreational Sectors
This proposed rule would establish a seasonal closure of the gray
triggerfish commercial and recreational sectors in the Gulf from June
through July, each year. This fixed seasonal closure would assist
rebuilding of the gray triggerfish stock by prohibiting harvest during
the gray triggerfish peak spawning season. Additionally, June and July
are the months that have the highest percentage of recreational
landings.
Recreational Bag Limit
Gray triggerfish currently have a recreational bag limit that is
part of the 20-fish aggregate reef fish bag limit. As part of this 20-
fish aggregate, there is currently no specific limit for recreational
gray triggerfish landings as long as the total is 20 fish or less. This
proposed rule would establish a 2-fish gray triggerfish recreational
bag limit within the 20-fish aggregate reef fish bag limit. This
recreational bag limit would be applicable until the recreational ACT
is reached or projected to be reached during a fishing year and the
recreational sector is closed.
Other Action Contained in Amendment 37
Amendment 37 would revise the rebuilding plan for gray triggerfish.
The gray triggerfish stock is currently in the 5th year of a rebuilding
plan that began in 2008. Amendment 37 would modify the rebuilding plan
in response to the results from the 2011 SEDAR update assessment and
subsequent SSC review and recommendations for the gray triggerfish ABC.
The modified rebuilding plan would be based on a constant fishing
mortality rate that does not exceed the fishing mortality rate at OY.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
Assistant Administrator, NMFS, has determined that this proposed rule
is consistent with the FMP, Amendment 37, 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 end overfishing of gray
triggerfish and rebuild the gray triggerfish stock by the end of 2017
to achieve OY. The Magnuson-Stevens Act provides the statutory basis
for this proposed rule. No duplicative, overlapping, or conflicting
Federal rules have been identified. This proposed rule would not
introduce any changes to current reporting, record-keeping, and other
compliance requirements.
This rule, if implemented, is expected to directly affect
approximately 400 vessels that have a valid (non-expired) or renewable
commercial Gulf reef fish permit. A renewable permit is an expired
permit that may not be actively fished, but is renewable for up to 1
year after permit expiration. Although over 900 vessels have a
commercial Gulf reef fish permit, which is required to possess and sell
quantities of gray triggerfish in excess of the recreational bag limit,
only an average of 382 vessels per year harvested gray triggerfish
during the period 2005 through 2009. More recent commercial landings
data is either not available (2011 to current) or is not expected to be
representative of normal fishing performance, i.e., the 2010 fishing
year as a result of the Deepwater Horizon MC252 oil spill and
associated fisheries closures. The average annual dockside revenue for
commercial vessels that harvested gray triggerfish during this period
was approximately $87,000 per vessel (2010 dollars).
This rule, if implemented, is also be expected to directly affect
1,366 vessels that possess a valid or renewable charter/headboat permit
for Gulf reef fish (for-hire). The for-hire fleet is comprised of
charterboats, which charge a fee on a vessel basis, and headboats,
which charge a fee on an individual angler (head) basis. Although the
for-hire permit does not distinguish between charterboats and
headboats, an estimated 69 headboats operate in the Gulf. The average
charterboat is estimated to earn approximately $77,000 (2010 dollars)
in annual revenue, and the average headboat is estimated to earn
approximately $234,000 (2010 dollars).
NMFS has not identified any other small entities that would be
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 fish harvesting is classified as a small business
if it is independently owned and operated, is not dominant in its field
of operation (including its affiliates), and has combined annual
receipts not in excess of $4.0 million (NAICS code 114111, finfish
fishing) for all its affiliated operations worldwide. The revenue
threshold for a business involved in the for-hire fishing industry is
$7.0 million (NAICS code 713990, recreational industries). All
commercial and for-hire vessels expected to be directly affected by
this proposed rule are believed to be small business entities.
Amendment 37, on which this proposed rule is based, addresses five
basic actions: (1) Revision of the gray triggerfish rebuilding plan;
(2) specification of the commercial and recreational gray triggerfish
ACLs and ACTs; (3) establishment of a gray triggerfish commercial
sector closed season and trip limit; (4) establishment of a gray
triggerfish recreational closed season and bag limit; and (5) revision
of the AMs for the gray triggerfish recreational sector.
Rebuilding plans are not contained in the regulatory text
associated with this proposed rule and are therefore outside the scope
of the Regulatory Flexibility Act (RFA). Further, revision of the
rebuilding plan would be an administrative action and, as a result,
would not be expected to have any direct economic effects on any small
entities. Direct effects of a rebuilding plan would only be expected to
accrue to any resultant harvest restrictions implemented through a
future rulemaking to achieve the goals of the
rebuilding plan. The proposed harvest restrictions encompass
modification of the sector ACTs, fishing seasons, commercial trip
limits, and recreational bag limits. The expected economic effects of
these proposed modifications are discussed below.
AMs are intended to ensure harvest overages do not occur and to
correct or mitigate for overages if they do occur. In-season AMs are
specifically intended to prevent or minimize harvest overages. The
establishment of AMs, or their modification, would be an administrative
action that would only be expected to have indirect effects on small
entities. These effects would occur if the AMs are triggered. Because
the proposed action would only modify and not implement the current
AMs, no direct effects would be 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 the potential implementation of the proposed in-
season AM would be expected to restrict fishing operations and
potentially result in direct short-term reductions in revenue and
profit, further discussion of the potential significance of these
effects is provided. The proposed in-season gray triggerfish
recreational sector AM would result in closure of the gray triggerfish
recreational season if the recreational sector ACT is reached or is
projected to be reached. As a result, harvest and possession would be
prohibited. Few, if any, fishing trips would be expected to be
cancelled in response to a prohibition on the harvest and possession of
gray triggerfish because anglers rarely target gray triggerfish: It was
identified as a primary target species for less than 1/10th of 1
percent of all fishing trips (2005-2009). Rather, gray triggerfish are
often harvested incidental to fishing for other reef fish species.
Because other, more desirable reef species would still be available for
recreational harvest, any prohibition on the harvest or possession of
gray triggerfish would not be expected to have a significant impact on
a substantial number of small entities.
Because gray triggerfish is not a significantly targeted species,
the proposed overage adjustment if the recreational ACL is exceeded
would also be expected to result in minimal, if any, reduction in
revenue to small entities. Because of the combination of in-season
closure authority, low total harvest and target effort, and the
expected recovery of gray triggerfish, overage adjustments would be
expected to be infrequent and, if necessary, require only minimal
reductions in the recreational ACT. Therefore, few, if any,
recreational trips would be expected to be lost and the revenue to
small entities would not be expected to be significantly affected.
Although Amendment 37 contained three proposed actions associated
with the commercial harvest of gray triggerfish--specification of the
ACT, establishment of the closed season, and establishment of a
commercial trip limit--the expected economic effects of this rule would
be determined primarily by the specification of the ACT. Individually,
assuming no change in fishing behavior, the proposed commercial sector
closed season and trip limit would be expected to result in a reduction
in total annual revenue for all vessels that harvest gray triggerfish
of approximately $26,000 and $72,000, respectively. All reductions are
expressed in 2010 dollars. Combined, these two measures would be
expected to result in a reduction in total annual revenue of
approximately $88,000. This result is less than the total of the two
individual proposed actions, approximately $98,000, because the
proposed closed season would negate the expected effects of the trip
limit during that period. However, the combined effects of these two
proposed actions would not be expected to be sufficient to constrain
commercial gray triggerfish harvest to the ACT and avoid an in-season
closure. The proposed ACT, 60,900 lb (27,624 kg), would be expected to
require a reduction in expected annual commercial harvest of
approximately 118,000 lb (53,524 kg). The combined effects of the
proposed commercial sector seasonal closure and trip limit would be a
reduction in annual commercial harvest of approximately 92,000 lb
(41,730 kg). Because commercial harvest would be prohibited when the
commercial ACT is reached, the full necessary commercial sector harvest
reduction would be expected to occur as a result of the three measures
combined (seasonal closure, trip limit, and closure when the ACT is
reached). Thus, although the total effect of the proposed seasonal
closure and trip limit would be an expected reduction in annual revenue
of approximately $88,000, the net effect of the proposed commercial
ACT, seasonal closure, and trip limit would be a reduction in annual
revenue of approximately $112,000. Distributed across all commercial
sector entities expected to be directly affected by these proposed
measures (382 vessels), the average expected effect would be a
reduction in annual revenue of approximately $300 per entity, or less
than one percent of the average annual revenue per vessel of $87,000.
Although some vessels may be expected to experience a reduction in
revenue by more than the average, overall, any reduction would not be
expected to be significant because of the small amount of gray
triggerfish traditionally harvested by commercial reef fish fishermen.
Impacts on the recreational sector are expected to be similar to
those affecting the commercial sector. The proposed gray triggerfish
recreational ACT, seasonal closure, and recreational bag limit would be
expected to individually result in an annual reduction in producer
surplus, used as a proxy for profit, of approximately $295,000,
$232,000, and $137,000, respectively. All reductions are expressed in
2010 dollars and equal the combined effects of the proposed actions
across all affected entities. Combined, the proposed seasonal closure
and bag limit would be expected to result in an annual reduction in
producer surplus of approximately $310,000, which would be less than
the effects of the two individual proposed actions combined because of
the interactive effects of the two proposed measures. The combined
effects of these two proposed measures exceeds the expected effects of
the proposed recreational ACT because the estimated reduction in
harvest under the proposed seasonal closure and bag limit exceeds the
reduction necessary to limit harvest to the proposed gray triggerfish
recreational ACT and avoid an in-season closure. Thus, for the proposed
actions affecting the recreational sector, the net expected economic
effect would be determined by the combined effects of the proposed
seasonal closure and bag limit rather than the proposed ACT.
Unlike the case for the commercial sector, the number of vessels
within the for-hire fleet that take trips targeting gray triggerfish
cannot be determined with available data. If the projected reduction in
producer surplus is distributed across all Gulf reef fish for-hire
vessels (1,366 vessels), the average annual reduction in producer
surplus would be approximately $230 (2010 dollars) per vessel, or
approximately 1 percent in average annual profit per vessel
(approximately $22,800 (2010 dollars)). Because all vessels would not
be expected to target gray triggerfish, however, the average reduction
in producer surplus per affected vessel would be expected to increase.
However, the estimates of expected reduction in producer surplus
associated with the proposed actions affecting the recreational sector
were generated using a worst-case assumption. Specifically, the projected reductions in producer surplus
were based on the assumption that recreational angler effort, and
associated for-hire revenue, would be reduced proportionate to the
change in allowable harvest. As previously discussed, gray triggerfish
is regarded as a bycatch or general harvest species, harvested in
connection with general reef fish fishing (no target species) or as a
result of fishing for other reef fish species. As a result, instead of
cancelling fishing trips, few if any for-hire vessels would be expected
to experience a reduction in customer traffic, and associated revenue,
as a result of either the proposed seasonal closure or reduced
recreational bag limit. Instead, substitution of another target species
during the proposed closed season and continued fishing at the proposed
lower bag would be expected. As a result, the proposed actions
affecting the recreational sector would not be expected to
significantly reduce profits for a significant number of small for-hire
entities.
In summary, the proposed rule, if implemented, would not be
expected to have a significant impact on a substantial number of small
entities and, as a result, an initial regulatory flexibility analysis
is not required and none has been prepared.