[Federal Register Volume 70, Number 249 (Thursday, December 29, 2005)]
[Rules and Regulations]
[Pages 77057-77060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24603]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 051114298-5338-02; I.D. 110105C]
RIN 0648-AT12


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Gulf of Mexico Commercial Grouper Fishery; Trip Limit

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement a regulatory 
amendment 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). This final rule establishes a 6,000-lb 
(2,722-kg) commercial trip limit for shallow-water and deep-water 
grouper, combined, in the exclusive economic zone of the Gulf of 
Mexico. The intended effect of this final rule is to minimize the 
effects of derby fishing and prolong the fishing season.

DATES: This final rule is effective January 1, 2006.

ADDRESSES: Copies of the Final Regulatory Flexibility Analysis (FRFA) 
are available from Andy Strelcheck, NMFS, Southeast Regional Office, 
263 13th Avenue South, St. Petersburg, FL 33701; telephone: 727-824-
5305; fax: 727-824-5308; e-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Andy Strelcheck, telephone: 727-824-
5374, fax: 727-824-5308, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico 
is managed under the FMP. The FMP was prepared by the Council and is 
implemented under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) by regulations 
at 50 CFR part 622.
    In accordance with the FMP's framework procedure, the Council 
recommended, and NMFS published, a proposed rule (70 FR 70575, November 
22, 2005) to establish a 6,000-lb (2,722-kg) commercial trip limit for 
shallow-water and deep-water grouper, combined, in the exclusive 
economic zone of the Gulf of Mexico. Public comments on the proposed 
rule were requested through December 7, 2005. A summary of the comments 
and NMFS' responses are provided below. The rationale for this trip 
limit is provided in the regulatory amendment and in the preamble to 
the proposed rule and is not repeated here.

Comments and Responses

    Following is a summary of the comments received on the proposed 
rule and NMFS' responses.
    Comment 1: One commenter supported the 6,000-lb (2,722-kg) 
commercial trip limit, but recommended reducing the trip limit once 50 
and 75 percent of the quota was reached.
    Response: Six trip limit alternatives were considered, including no 
action and the preferred 6,000-lb (2,722-kg) gutted weight grouper trip 
limit. Several other stepped trip limit alternatives were also 
considered, which would have reduced the trip limit during the fishing 
year when a certain percentage of either the shallow-water grouper or 
red grouper quota was reached. These stepped trip limit alternatives 
were not selected because the lower trip limits were estimated to 
generate excessive negative economic impacts, particularly for longline 
vessels and vessels operating off the west-central coast of Florida.
    Comment 2: One commenter supported the trip limit, but recommended 
longer closures or a 10-day open season at the beginning of each month.
    Response: The intent of the 6,000-lb (2,722-kg) gutted weight 
commercial grouper trip limit is to prolong the fishing season and 
reduce the effects of derby fishing. Longer closures or 10-day open 
seasons are contrary to the action's objective of reducing the effects 
of derby fishing and extending the commercial grouper fishing season.
    Comment 3: One commenter opposed the trip limit and believed the 
trip limit was too large and should be less.
    Response: Several alternatives with lower trip limits than the 
preferred 6,000-lb (2,722-kg) gutted weight trip limit were considered. 
These more restrictive trip limit alternatives were not selected 
because the lower trip limits were estimated to generate excessive 
negative economic impacts, particularly for longline vessels and 
vessels operating off the west-central coast of Florida.
    Comment 4: One commenter supported the trip limit, but questioned 
the effectiveness of the trip limit if it resulted in additional 
fishing trips.
    Response: An environmental assessment (EA) was conducted for this 
action, which evaluated the effects of the trip limit on the physical, 
biological, social, and economic environment. As part of the EA, an 
economic simulation analysis was conducted, which allowed for extra 
fishing trips to be taken in response to lower trip limits. Extra trips 
were only allowed to occur if revenues were sufficient to cover trip 
costs. Based on the results of this simulation analysis, the shallow-
water grouper fishery was projected to close 2-14 days earlier than if 
extra trips were not allowed to be taken.
    Comment 5: One commenter suggested longline fishing gear should be 
eliminated.
    Response: The regulatory amendment only proposed trip limits for 
reducing the effects of derby fishing and moderating the rate of 
commercial grouper harvest. The regulatory amendment did not provide 
notice or seek comment on elimination of any type of gear from the 
fishery. Therefore, this comment is beyond the scope of the regulatory 
amendment and this rule.
    Comment 6: The Southern Offshore Fishing Association (SOFA) 
indicated they were in favor of trip limits, but believed the 6,000-lb 
(2,722-kg) trip limit would have adverse economic effects on larger 
vessels. They suggested two alternative trip limit proposals be 
considered. The first proposal is to implement a tiered trip limit with 
a 7,500-lb (3,402-kg) limit for longline vessels and 2,500-lb (1,134-
kg) trip limit for vertical-line vessels. The second proposal is to 
implement a 7,500-lb (3,402-kg) trip limit for vessels with a 
documented length over 45 ft (13.7 m), a 5,500-lb (2,495-kg) trip limit 
for vessels with a documented length under 45 ft (13.7 m), and a 1-
month closure of the shallow-water grouper fishery from May 20 to June 
20.
    Response: At its October 3-6, 2005 meeting, the Council reviewed a 
proposal by SOFA for a 7,500-lb (3,402-kg) trip limit and additional 
closed season. In response to this proposal,

[[Page 77058]]

which is outlined in the regulatory amendment, the initial trip limit 
was increased from 5,500-lb (2,495-kg) to 6,000 lb (2,722-kg) to help 
defray increasing costs occurring in the fishery and larger vessels' 
higher operating costs. The Council also considered seasonal closures 
in conjunction with trip limits. SOFA suggested a 1-month closure (May 
15-June 15) at the Council's October meeting, and this proposal was 
analyzed as a variant of Alternative 3 in the regulatory amendment. 
However, Alternative 3 was rejected in favor of the preferred 
alternative in seeking a compromise between limiting net revenue losses 
while allowing for a longer season.
    The concept of setting grouper trip limits by fishing gear was not 
examined in the regulatory amendment, but was considered in Secretarial 
Amendment 1 to the Reef Fish FMP. The Council concluded gear-based trip 
limits would increase the complexity of the regulations and, thus, 
decrease compliance and enforceability. Further, gear-based trip limits 
could encourage fishermen to convert their vessels to the gear with the 
highest trip limit and ultimately increase rather than decrease harvest 
rates. Finally, SOFA's gear-based proposal does not address other gear 
types used in the fishery such as fish traps and spearguns.

Classification

    The Administrator, Southeast Region, NMFS, determined the 
regulatory amendment, which this proposed rule would implement, is 
necessary for the conservation and management of the commercial grouper 
fishery in the Gulf of Mexico and that it is consistent with the 
Magnuson-Stevens Act and other applicable laws.
    The Assistant Administrator for Fisheries, NOAA (AA) finds there is 
good cause under 5 U.S.C. 553(d)(3) to waive the required 30-day delay 
in effective date. After evaluating nearly a full year of the fishery's 
performance under the existing trip limit structure, NMFS has 
determined that those trip limits were not sufficiently restrictive to 
achieve the regulatory objectives of minimizing the adverse 
socioeconomic effects of derby fishing and extending the length of the 
fishing season, i.e., avoiding rapid harvest of the quota and an early 
closure of the fishery. The more restrictive trip limit in this final 
rule is required to meet these objectives. Delaying the implementation 
of this final rule beyond January 1, 2006, would result in excessive 
harvests while the ineffective emergency trip limits are in place. 
Given the substantial harvesting capacity of the commercial grouper 
fishery, any delay in implementing the limits specified by this final 
rule would result in depressed ex-vessel prices while the higher trip 
limit is in place and a reduction in the length of the fishing season 
relative to that expected to be achieved by implementation of the final 
rule effective January 1, 2006. Numerous vessels in the fishery have 
the capacity to harvest up to and in excess of 10,000 pounds. Forty-
nine trips in excess of 6,000 pounds were reported in January 2005. 
Further, the fishery has been closed since October 10, 2005, and 
participants are poised to fish upon opening of the fishery. Given the 
extended closure of the fishery, if allowed to harvest the higher 
limit, participants have the capacity and incentive to do so. Any 
reduction in ex-vessel prices and shortening of the season will result 
in failure to meet the goals of this action. There are no fishing gear 
changes or other significant compliance issues that would necessitate a 
delay in effectiveness of this rule. NMFS will provide timely 
notification of the more restrictive trip limit in this final rule 
directly to participants in the fishery via a fishery bulletin mailed 
to each permitee and via broadcast on NOAA weather radio. The Council 
intended to take final action on the proposed rule at their September 
2005 meeting in New Orleans, Louisiana, which would have accommodated 
the 30-day delay in the effective date. However, as a consequence of 
Hurricane Katrina, the Council was prevented from taking final action 
until their October meeting, delaying submission for Secretarial review 
until October 12. The 30-day delay would have required publication of 
the final rule on or before December 1. However, the available time 
between Council submission and December 1 was insufficient to allow the 
required and necessary review and approval of the final rule.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an FRFA. The FRFA incorporates the initial regulatory 
flexibility analysis (IRFA), a summary of the significant issues raised 
by the public comments in response to the IRFA, NMFS responses to those 
comments, and a summary of the analyses completed to support the 
action.
    This final rule establishes a 6000-lb (2,722-kg) trip limit for the 
commercial grouper fishery in the Gulf of Mexico. The purpose of this 
final rule is to reduce the adverse socioeconomic effects of derby 
fishing in the commercial sector expected to result if management 
action is not taken. The Magnuson-Stevens Act provides the statutory 
basis for the rule.
    Six comments that proposed alternative trip limits, longer closures 
or 10-day seasons, the elimination of one gear sector, or questioned 
the effectiveness of the action were raised by public comments in 
response to the proposed rule. A detailed summary of these comments and 
NMFS' responses is provided in the Comments and Responses section of 
this final rule. These alternatives were either previously considered 
or determined to be outside the scope of the objectives for this rule. 
Where considered, it was determined that either the adverse impacts of 
these alternatives were greater than those of the rule, or the rule was 
determined to be a reasonable compromise between limiting net revenue 
losses while allowing for a longer season. No changes were made to the 
final rule in response to these comments.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified.
    An estimated 1,129 vessels were permitted to engage in commercial 
fishing for Gulf reef fish (which include grouper) in early 2004, down 
from 1,718 vessels in 1993. Although a permit moratorium has limited 
access in this fishery since 1992, transfer of permits is not 
restricted. Those seeking to enter the fishery can purchase a permit 
from those seeking to exit the fishery, provided income and other 
requirements are met for participation in the fishery. Total 
participation, however, in terms of both the number of permits and the 
number of vessels landing Gulf reef fish has consistently declined 
since 1993.
    An estimated 1,157 vessels had permits to fish commercially for 
Gulf reef fish from 2002-2004, and 1,021 vessels had historical, 
logbook-reported landings of Gulf reef fish. This total includes 928 
vessels with landings of Gulf grouper, for which the median estimated 
gross revenue for all reported landings of fish was approximately 
$20,000 per vessel per year. Maximum revenue ranged from $478,000-
$543,000. The bottom longline and vertical line sectors are the 
dominant fleets in the fishery. For the bottom longline fleet (162 
vessels per year, on average), the median annual gross revenue ranged 
from $96,000-$102,000 (84-90 percent from grouper). The vertical line 
fleet (765 vessels per year, on average) had median annual gross 
revenue of under $17,000 (44-48 percent from grouper). Some vessels use

[[Page 77059]]

both gears so the numbers of vessels cannot be added across gear types.
    For the 928 vessels with reported landings of Gulf grouper, 
historical fishery performance resulted in estimated annual average 
gross revenue of $46 million for all logbook-reported fish in 2002-
2004. This includes gross revenue of $39 million for all fish on trips 
with grouper landings ($25 million from red grouper). The net revenue 
for these trips was approximately $29 million (annual averages per 
vessel for 928 vessels are $41,000 for gross revenue, and $31,000 for 
net revenue). Net revenue for the commercial fishing sector (computed 
as trip revenue minus trip costs) includes returns to all labor and 
capital.
    Simulation of fishery performance under status quo conditions 
produced estimates which are slightly lower than historical fishery 
performance: Gross revenue of approximately $37 million for all fish on 
trips with grouper landings, and $27 million for net revenue (annual 
averages per vessel for 922 vessels are $40,000 for gross revenue, and 
$29,000 for net revenue). Projected net revenue is approximately $10.7 
million for the bottom longline fleet (average, $66,000 per vessel per 
year for 161 vessels), and $14.5 million for the vertical line fleet 
(average, $19,000 per vessel per year for 748 vessels).
    Between 1997 and 2000, there were an average of 123 reef fish 
dealers actively buying and selling in the grouper market. Of these 
dealers, 101 dealers (82 percent) sold more than $30,000 per year of 
domestic grouper on a regular basis. These dealers may hold multiple 
types of permits. Because the extent of business operation for these 
dealers is unknown, it is not possible to determine what percentage of 
their business comes from grouper. Average employment information per 
reef fish dealer is not known, but total employment in 1997 for reef 
fish processors in the entire Southeast was estimated at approximately 
700 individuals, both part and full time. It is assumed that all 
processors must be dealers, yet a dealer need not be a processor. 
Therefore, total dealer employment is expected to be slightly more than 
700 individuals.
    This final rule will not change current reporting, recordkeeping 
and other compliance requirements under the FMP. These requirements 
include qualification criteria for the commercial permits, landing 
reporting requirements for vessels with commercial permits, and 
participation in additional data collection programs if selected by 
NMFS. All of the information elements required for these requirements 
are standard elements essential to the successful operation of a 
fishing business and should, therefore, already be collected and 
maintained as standard operating practice by the business. The 
requirements do not require professional skills, and, therefore, are 
deemed not to be onerous.
    The Small Business Administration defines a small business in the 
commercial fishery sector as a firm that is independently owned and 
operated, is not dominant in its field of operation, and has annual 
receipts up to $3.5 million per year. For support industries, the 
appropriate thresholds are a firm with fewer than 500 employees in the 
case of fish processors, or fewer than 100 employees in the case of 
fish dealers. Since none of the reef fish processors meet the SBA 
employment threshold, it is unlikely that any of the dealers will meet 
that threshold. Given the profiles presented above, it is determined 
that all commercial fishing entities and dealers that will be affected 
by this rule are small business entities. Since all said entities will 
be potentially affected, it is determined that this rule will affect a 
substantial number of small entities.
    The outcome of ``significant economic impact'' can be ascertained 
by examining two issues: disproportionality and profitability. The 
disproportionality question is do the regulations place a substantial 
number of small entities at a significant competitive disadvantage to 
large entities? All the commercial fishing, or dealer entities affected 
by this final rule are considered small entities so the issue of 
disproportionality does not arise in the present case. The 
profitability question is do the regulations significantly reduce 
profit for a substantial number of small entities? This final rule is 
projected to reduce net revenues by $760,000 to $1.09 million for the 
bottom longline sector. Compared with projected annual net revenue of 
$10.7 million for this sector under the status quo ($66,000 per vessel 
per year for 161 vessels), the projected net revenue reduction equates 
to approximately $4,700-$6,700, or approximately 7-10 percent, per 
vessel per year, on average if 2001-2003 costs prevail. If recent cost 
hikes stimulated by 2005 gas price conditions continue, the projected 
net revenue reduction is $729,000 to $1.02 million, relative to total 
annual net revenues of $6.4 million ($39,800 per vessel). This equates 
to a reduction of approximately $4,500-$6,300, or approximately 11-16 
percent, per vessel per year on average.
    For the vertical line sector, this final rule is projected to 
increase net revenues by $81,000-$112,000 per year. Compared with 
projected annual net revenue of $14.5 million for this sector under the 
status quo ($19,000 per vessel per year for 748 vessels), the projected 
increase in net revenue equates to approximately $100-$150 per vessel, 
or less than a 1-percent increase if 2001-2003 costs prevail. If 2005 
cost conditions continue, the vertical line sector is projected to 
experience a $30,000-$36,000 increase in net revenues per year, or 
still less than 1 percent per vessel.
    The trip limit is expected to reduce the adverse, but 
unquantifiable, economic effects of derby fishing that are expected to 
develop under the status quo. Although the direct impacts of derby 
fishing cannot be quantified using current data and models, they are 
expected to be substantial and are expected to mitigate any losses in 
fishery net revenue attributed to the rule.
    Five alternatives, including the status quo, were considered 
relative to the rule. The status quo alternative would eliminate the 
short-term adverse impacts of the rule, but would not address the 
potential development of a derby fishery and would not, therefore, 
achieve the Council's objectives.
    The second alternative would establish a step-down trip limit 
consisting of trip limits of 10,000, 7,500 and 5,500-lb (4,536, 3,402, 
and 2,495 kg) gutted weight based on target dates and accumulated 
landing totals. This alternative, while resulting in lower short-term 
reductions in net revenues than the rule, does not appear to 
sufficiently constrain commercial landings, as evidenced by 2005 
fishery performance and, hence, is not sufficient to lessen derby 
conditions and reduce the length of the quota closure.
    The third alternative would start the commercial trip limit at 
7,500-lb (3,402-kg) with step-down to 5,000-lb (2,268-kg). This 
alternative would potentially reduce the short-term reduction in net 
revenues of the rule. However, based on preliminary 2005 fishery 
performance, the starting limit is higher than necessary to counter 
derby pressure.
    The fourth alternative would also start with an initial trip limit 
of 7,500-lb (3,402-kg) with a step-down to 3,500-lb (1,588-kg). The 
short-term adverse impacts of this alternative, however, exceed those 
of the rule.
    The fifth alternative would begin the fishery with a 4,000-lb 
(1,814-kg) trip limit and allow the trip limit to either be increased, 
decreased, or remain the same depending upon fishery

[[Page 77060]]

performance. Although this scenario cannot be fully analyzed due to the 
absence of a clearly specified variable step decision rule, the initial 
limit is so low that it is expected to generate excessive negative 
impacts, particularly on the bottom longline sector.
    Copies of the FRFA are available (see ADDRESSES).
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare an FRFA, the agency shall 
publish one or more guides to assist small entities in complying with 
the rule, and shall designate such publications as ``small entity 
compliance guides.'' As part of this rulemaking process, NMFS prepared 
a fishery bulletin, which also serves as a small entity compliance 
guide. The fishery bulletin will be sent to all vessel permit holders 
for the Gulf reef fish fishery.

List of Subjects in 50 CFR Part 622

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

    Dated: December 22, 2005.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 622 is amended as 
follows:

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

0
1. The authority citation for part 622 continues to read as follows:

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


0
2. In Sec.  622.44, introductory text and paragraph (g) are revised to 
read as follows (Note: This revision to Sec.  622.44(g) supersedes the 
amendment to Sec.  622.44(g) published in the temporary rule at 70 FR 
48323, August 17, 2005):


Sec.  622.44  Commercial trip limits.

    Commercial trip limits are limits on the amount of the applicable 
species that may be possessed on board or landed, purchased, or sold 
from a vessel per day. A person who fishes in the EEZ may not combine a 
trip limit specified in this section with any trip or possession limit 
applicable to state waters. A species subject to a trip limit specified 
in this section taken in the EEZ may not be transferred at sea, 
regardless of where such transfer takes place, and such species may not 
be transferred in the EEZ. For fisheries governed by this part, 
commercial trip limits apply as follows (all weights are round or 
eviscerated weights unless specified otherwise):
* * * * *
    (g) Gulf deep-water and shallow-water grouper, combined. For 
vessels operating under the quotas in Sec.  622.42(a)(1)(ii) or 
(a)(1)(iii), the trip limit for Gulf deep-water and shallow-water 
grouper combined is 6,000 lb (2,722 kg), gutted weight. However, when 
the quotas in Sec.  622.42(a)(1)(ii) or (a)(1)(iii) are reached and the 
respective fishery is closed, the commercial trip limit for the species 
subject to the closure is zero. (See Sec.  622.42(a)(1)(ii) and 
(a)(1)(iii) for the species included in the deep-water and shallow-
water grouper categories, respectively.)

[FR Doc. 05-24603 Filed 12-23-05; 12:48 pm]
BILLING CODE 3510-22-P