[Federal Register Volume 71, Number 12 (Thursday, January 19, 2006)]
[Rules and Regulations]
[Pages 3018-3020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-504]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 050708183-5183-01; I.D. 070505D]
RIN 0648-AT45


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Gulf Grouper Recreational 
Management Measures

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

ACTION: Temporary rule; interim measures.

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SUMMARY: NMFS issues this temporary rule to amend, and extend the 
effective date of, the grouper bag limit provisions implemented by a 
temporary rule published by NMFS on July 25, 2005, to reduce 
overfishing of red grouper in Federal waters of the Gulf of Mexico. 
This temporary rule amends the bag limit provision consistent with the 
October 31, 2005, ruling of the United States District Court, Middle 
District of Florida (Court). The intended effect is to reduce 
overfishing of red grouper in the Gulf of Mexico.

DATES: This rule is effective January 24, 2006, through July 22, 2006.

ADDRESSES: Copies of documents supporting this rule may be obtained 
from the Southeast Regional Office, NMFS, 263 13th Avenue South, Saint 
Petersburg, FL 33701.

FOR FURTHER INFORMATION CONTACT: Phil Steele, telephone: 727-551-5784, 
fax: 727-824-5308, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico 
is managed under the Fishery Management Plan for the Reef Fish 
Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf 
of Mexico Fishery Management 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.

Background

    During the March 7-10, 2005, Gulf of Mexico Fishery Management 
Council (Council) meeting, the Council reviewed red grouper landings 
and concluded that without additional regulations recreational red 
grouper landings were likely to exceed the recreational target level 
specified in the rebuilding plan provided in Secretarial Amendment 1 to 
the FMP. The Council passed a motion and subsequently submitted a 
letter requesting NMFS to implement an interim rule to reduce the 
recreational red grouper catch to levels consistent with the rebuilding 
plan specified in Secretarial Amendment 1. In response to the Council's 
request, NMFS issued a temporary rule (70 FR 42510, July 25, 2005) to 
reduce the likelihood of overfishing red grouper, while minimizing 
biological impacts on gag and other groupers that could result from 
shifts in effort due to red grouper management actions. To achieve this 
objective, the temporary rule reduced the red grouper bag limit from 2 
fish per person per day to 1 fish per person per day; reduced the 
aggregate grouper bag limit from 5 grouper, combined, per person per 
day, excluding goliath grouper and Nassau grouper, but not to exceed 1 
speckled hind or 1 warsaw grouper per vessel per day or 2 red grouper 
per person per day, to 3 grouper, combined, per person per day, 
excluding goliath grouper and Nassau grouper, but not to exceed 1 
speckled hind or 1 warsaw grouper per vessel per day or 1 red grouper 
per person per day; and established a closure of the recreational 
fishery, from November through December of 2005, for all grouper 
species. Additional background regarding the need for and impacts of 
the July 25, 2005 temporary rule is contained in the preamble to that 
rule and is not repeated here.
    On October 31, 2005, a decision was rendered by the Court on a 
lawsuit brought by the Coastal Conservation Association and The Fishing 
Rights Alliance, Inc. against NMFS (Coastal Conservation Association, 
et al., vs. Carlos Gutierrez, Case No. 2:05-cv-400-FtM-29DNF). The 
Court partially agreed with the plaintiffs and set aside aspects of the 
interim rule that applied to species other than red grouper. As a 
result, NMFS is amending the temporary rule in accordance with the 
Court's ruling and extending the effective date for an additional 180 
days.

Amendment and Extension of the Temporary Rule

    Under section 305(c)(3)(B) of the Magnuson-Stevens Act, NMFS may 
extend the effectiveness of interim measures for one additional period 
of 180 days, provided the public has had an opportunity to comment on 
the interim measures, and the Council is actively preparing proposed 
regulations to address the issue on a permanent basis.
    NMFS solicited comments on the initial interim measures through 
August 24, 2005. The comments received and NMFS' responses are provided 
in this temporary rule. After reviewing all public comments, NMFS has 
concluded that the interim measures were, and as amended remain, 
necessary to reduce the probability of overfishing.
    The Council is preparing a regulatory amendment and associated 
proposed regulations that will address measures to address overfishing 
of red grouper. Those measures, if approved and implemented by NMFS, 
would replace this temporary rule. Action to address these issues via 
the proposed regulations associated with the regulatory amendment 
cannot be implemented before the current temporary rule expires on 
January 23, 2006. Extension and amendment of the temporary rule is 
necessary to conform with the Court's ruling, avoid a regulatory lapse, 
and ensure that the risk of overfishing is minimized.
    This temporary rule extends the applicable provisions of the 
original temporary rule (70 FR 42510, July 25, 2005) for an additional 
180 days and amends the original temporary rule consistent with the 
Court's ruling. Under this temporary rule, the aggregate grouper bag 
limit is 5 grouper (versus 3 grouper under the original temporary 
rule), combined, per person per day, excluding goliath grouper and 
Nassau grouper, but not to exceed 1 speckled hind or 1 warsaw grouper 
per vessel per day or 1 red grouper per person per day. The November 
through December closure of the recreational fishery for all grouper 
species, contained in the original temporary rule, is not relevant to 
the period of effectiveness of this temporary rule and, therefore, is 
removed in this temporary rule. Additional suspensions and extensions 
of regulatory text, necessary for regulatory consistency, are also 
included in this temporary rule.

[[Page 3019]]

Comments and Responses

    NMFS received the following public comments on the July 25, 2005, 
temporary rule: 267 form letters of similar content and two lists of 
signatures from interested members of the general public, and an 
additional 43 e-mails, 17 letters, and 5 facsimiles from the general 
public, recreational fishing organizations, boat associations, local 
governments, and the State of Florida. Almost all public comments 
received by NMFS opposed interim regulations. One public comment 
supported reducing the aggregate bag limit, and three public comments 
supported reducing the red grouper bag limit. Responses to these 
comments are provided below.
    Comment 1: Numerous commenters stated the 2004 Marine Recreational 
Fisheries Statistics Survey (MRFSS) data were flawed and overestimated 
red grouper landings.
    Response: The MRFSS program conducted a thorough review of red 
grouper landings and effort data, and an independent review of the 
MRFSS data was conducted by the Florida Fish and Wildlife Conservation 
Commission (FWC). MRFSS 2004 red grouper catch and landings estimates 
were considered sound and based on the best available science, and no 
technical flaws were evident in the estimates. Estimated landings had 
relatively low proportional standard error, suggesting precise, 
reliable estimates. As independent verification of the increase in 
MRFSS red grouper landings and catch rates, headboat (charter/party) 
captains reported much higher red grouper landings in logbooks 
submitted to the Southeast Fisheries Science Center in 2004. Numerous 
anecdotal reports from anglers and charter boat operators during 2004 
also indicated red grouper were being caught in greater numbers and in 
areas where they were not previously caught.
    Comment 2: Many commenters requested NMFS and the Council increase 
the recreational allocation for red grouper.
    Response: Secretarial Amendment 1 to the FMP used historical 
landings from 1999-2001 to establish a 5.31 million-lb (2.41 million-
kg), gutted weight (GW), commercial quota and 1.25 million-lb (0.57 
million-kg), GW, recreational target catch level. This interim rule did 
not consider allocation changes. The Council can consider changes to 
allocation through amendments to its fishery management plans. At the 
November 2005 Council meeting, the Council voted to begin developing a 
plan amendment for allocating grouper.
    Comment 3: Numerous commenters stated recreational anglers were not 
the problem and additional management measures were needed for 
commercial fishermen.
    Response: Interim regulations were developed in response to 
landings overages by the recreational fishery. In 2004, an estimated 
3.18 million lb (1.44 million kg), GW, of red grouper were landed by 
recreational anglers. These landings were well above the 1.25 million-
lb (0.57 million-kg), GW, catch level specified by the red grouper 
rebuilding plan, requiring NMFS to implement interim regulations to 
reduce recreational landings.
    The commercial grouper fishery is managed by quotas, trip limits, 
gear boundaries, size limits, and closed seasons. These management 
measures are intended to control commercial harvest and prevent 
overfishing. In both 2003 and 2004, commercial landings for red grouper 
were at or below the 5.31 million-lb (2.41 million-kg), GW, quota. NMFS 
closed the commercial shallow-water grouper fishery on November 15, 
2004, and October 10, 2005, when the red grouper quota was projected to 
be met. The deep-water grouper fishery was closed on July 15, 2004, and 
June 23, 2005, when the deep-water grouper quota was projected to be 
met. Once the quotas have been met, the fisheries remain closed until 
the start of the next fishing season, which begins January 1 each year.
    Comment 4: Two commenters supported increasing the minimum size 
limit for red grouper.
    Response: The environmental assessment for the interim rule 
considered increasing the minimum size limit for red grouper from 20 
inches (50.8 cm) to either 22 or 23 inches (55.9 or 58.4 cm) total 
length (TL). These alternatives were not preferred because size limits 
increase release mortality and may result in forgone yield. Higher size 
limits would contribute to more red grouper being released and dying 
when compared to status quo (20 inches (50.8 cm) TL). During 2003-2004, 
an average of 2.6 million red grouper, representing 88 percent of all 
red grouper caught, were released. Although release mortality for 
recreationally caught red grouper is assumed to be relatively low (10 
percent), released fish accounted for 42 percent of all red grouper 
killed during 2003-2004. Increasing the minimum size limit is expected 
to further increase discard mortality. The proposed increase in the 
minimum size limit could also result in foregone yield because there 
would be additional mortality from natural causes before fish reached 
legal size.
    Comment 5: Two commenters requested the red grouper stock 
assessment be moved to 2006.
    Response: The Southeast Data, Assessment, and Review has 
rescheduled the red grouper stock assessment for fall 2006. The red 
grouper stock assessment was originally scheduled for spring 2007. The 
assessment will now occur after the gag stock assessment, which is 
scheduled to occur in spring 2006.
    Comment 6: Numerous commenters opposed the seasonal closure, and 
three commenters questioned why the closure would apply to all grouper, 
including species not overfished or undergoing overfishing.

    Response: NMFS established a recreational closure for all grouper 
to reduce bycatch mortality of red grouper and prevent effort shifting 
to other grouper because of red grouper management measures. However, a 
recent court decision (Coastal Conservation Association, et al., vs. 
Carlos Gutierrez, Case No. 2:05-cv-400-FtM-29DNF) concluded the closure 
could not be applied to species not undergoing overfishing. Therefore, 
the closure only applies to red grouper harvested from the exclusive 
economic zone of the Gulf of Mexico during November-December, 2005. The 
interim rule implementing the closure expires January 23, 2006. Because 
the expiration date of the interim rule will be after the closure ends 
and the interim rule can only be extended for an additional 180 days, 
extension of the interim rule will not include a seasonal closure.
    Comment 7: Two commenters suggested only reducing the bag limit to 
one.
    Response: This management option was preferred by the FWC. The 
environmental assessment for the interim rule did consider an 
alternative that would have only reduced the red grouper bag limit from 
two to one. However, this alternative would not have achieved a great 
enough reduction in recreational landings to eliminate or greatly 
reduce the likelihood of recreational red grouper overages in 2005.
    Comment 8: One commenter suggested implementing a spawning season 
closure.
    Response: The interim rule did not include a spawning season 
closure because reductions in red grouper landings were needed for 2005 
and the interim rule was implemented after the 2005 spawning season for 
red grouper, gag, and many other grouper species. The Council is 
currently developing a regulatory amendment to establish more

[[Page 3020]]

permanent regulatory management measures for grouper. Several 
alternatives in the regulatory amendment include spawning season 
closures.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that the amendment and extension of this temporary rule is 
necessary to reduce overfishing of red grouper in the Gulf of Mexico 
consistent with the Court's ruling and is consistent with the Magnuson-
Stevens Act and other applicable laws.
    This temporary rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This temporary rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior notice and public comment.
    This temporary rule addresses overfishing. Delaying action to 
reduce overfishing in the red grouper fishery of the Gulf of Mexico to 
provide further notice and an opportunity for public comment prior to 
implementation would increase the likelihood of a loss of long-term 
productivity from the fishery and increase the probable need for more 
severe restrictions in the future. Accordingly, under authority set 
forth at 5 U.S.C. 553(b)(B), the AA finds, for good cause, namely the 
reasons set forth above, that providing prior notice and the 
opportunity for prior public comment would be contrary to the public 
interest. Similarly, the need to implement these measures in a timely 
manner for the reasons stated above constitutes good cause under 
authority contained in 5 U.S.C. 553(d)(3) to waive the 30-day delay in 
effectiveness.

List of Subjects in 50 CFR Part 622

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

    Dated: January 12, 2006.
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.  622.39, paragraphs (b)(1)(ii) and (b)(1)(v) are suspended, 
and new paragraphs (b)(1)(viii) and (b)(1)(ix) are added to read as 
follows:


Sec.  622.39  Bag and possession limits.

* * * * *
    (b) * * *
    (1) * * *
    (viii) Groupers, combined, excluding goliath grouper and Nassau 
grouper -5 per person per day, but not to exceed 1 speckled hind or 1 
warsaw grouper per vessel per day or 1 red grouper per person per day.
    (ix) Gulf reef fish, combined, excluding those specified in 
paragraphs (b)(1)(i), (iii), (iv), (vi), (vii), and (viii) of this 
section and excluding dwarf sand perch and sand perch--20.
* * * * *

0
3. In Sec.  622.43, paragraph (a)(1)(i) is suspended and paragraph 
(a)(1)(iii) is added to read as follows:


Sec.  622.43  Closures.

    (a) * * *
    (1) * * *
    (iii) Commercial quotas. If the recreational fishery for the 
indicated species is open, the bag and possession limits specified in 
Sec.  622.39(b) apply to all harvest or possession in or from the Gulf 
EEZ of the indicated species, and the sale or purchase of the indicated 
species taken from the Gulf EEZ is prohibited. In addition, the bag and 
possession limits for red snapper, when applicable, apply on board a 
vessel for which a commercial permit for Gulf reef fish has been 
issued, as required under Sec.  622.4(a)(2)(v), without regard to where 
such red snapper were harvested. If the recreational fishery for the 
indicated species is closed, all harvest or possession in or from the 
Gulf EEZ of the indicated species is prohibited.
* * * * *
[FR Doc. 06-504 Filed 1-18-06; 8:45 am]
BILLING CODE 3510-22-S