[Federal Register Volume 71, Number 62 (Friday, March 31, 2006)]
[Proposed Rules]
[Pages 16275-16277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-4748]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 060322083-6083-01; I.D. 032006C]
RIN 0648-AU04


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

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 issues this proposed 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 proposed rule would establish a 
recreational bag limit for Gulf red grouper of one fish per person per 
day; prohibit the captain and crew of a vessel operating as a charter 
vessel or headboat from retaining any Gulf grouper, i.e.,establish a 
zero bag limit for captain and crew; and establish a seasonal closure 
of the recreational fishery for gag, red grouper, and black grouper in 
or from the Gulf exclusive economic zone (EEZ). The intended effect of 
this proposed rule is to maintain recreational landings at levels 
consistent with the red grouper rebuilding plan while minimizing 
potential shift of fishing effort to associated grouper species.

DATES: Written comments on the proposed rule must be received no later 
than 5 p.m., eastern time, on May 1, 2006.

ADDRESSES: You may submit comments on the proposed rule by any of the 
following methods:
     E-mail: [email protected]. Include in the 
subject line the following document identifier: 0648-AU04.
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Andy Strelcheck, Southeast Regional Office, NMFS, 
263 13\th\ Avenue South, St. Petersburg, FL 33701.
     Fax: 727-824-5308; Attention: Andy Strelcheck.
    Copies of the regulatory amendment, which includes a Regulatory 
Impact Review (RIR), an Initial Regulatory Flexibility Analysis (IRFA), 
and an Environmental Assessment (EA) may be obtained from the Gulf of 
Mexico Fishery Management Council, 2203 N. Lois Avenue, Suite 1100, 
Tampa, FL 33607; telephone: 813-348-1630; fax: 813-348-1711; e-mail: 
[email protected]. Copies of the regulatory amendment may 
also be downloaded from the Council's website at http://www.gulfcouncil.org.

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.

Background

    On July 15, 2004, NMFS implemented Secretarial Amendment 1 to the 
FMP to establish a red grouper rebuilding plan, including a 5.31 
million-lb (2.42 million-kg), gutted weight, commercial quota and a 
1.25 million-lb (0.57 million-kg), gutted weight, recreational target 
catch level for red grouper (69 FR 33315). In 2004, recreational red 
grouper landings totaled 3.18 million lb (1.44 million kg), gutted 
weight -significantly exceeding the target catch level. In March 2005, 
the Council requested NMFS implement interim regulations for the 
recreational red grouper fishery to return landings to levels specified 
in Secretarial Amendment 1. NMFS implemented interim regulations in 
August 2005, to reduce recreational red grouper landings (70 FR 42510, 
July 25, 2005). Those regulations were amended and extended in January 
2006, for an additional 180 days (71 FR 3018, January 19,2006).

Provisions of This Proposed Rule

    The purpose of this proposed rule is to establish more permanent 
management measures for the recreational grouper fishery consistent 
with the regulatory amendment prepared by the Council. These measures 
are needed to restrict recreational red grouper landings to levels 
specified in the rebuilding plan and to prevent or minimize increases 
in fishing mortality on gag and black grouper resulting from any shift 
in fishing effort from red grouper to these species because of the more 
restrictive recreational red grouper regulations. Gag are not 
overfished or undergoing overfishing, but landings have been above 
recommended catch levels since 2000; therefore, gag should not be 
subjected to increased fishing mortality. Black grouper are included in 
the seasonal closure because they are similar in appearance to gag and 
are difficult for many recreational fishermen to distinguish from gag. 
If black grouper were not included in the seasonal closure, compliance 
with the closure would be compromised because of the species 
identification problem.
    This proposed rule would establish a red grouper recreational bag 
limit of one fish per person per day; prohibit the captain and crew of 
a vessel operating as a charter vessel or headboat from retaining any 
Gulf grouper ,i.e., establish a zero bag limit for captain and crew; 
and establish a seasonal closure of the recreational fishery for gag, 
red grouper, and black grouper in or from the Gulf exclusive economic 
zone (EEZ) from February 15 to March 15 each year. Cumulatively, these 
measures are expected to reduce recreational red grouper landings by 
approximately 34 percent and recreational landings of gag and black 
grouper by 7 percent. The proposed restriction on possession of any 
grouper by captain and crew while under charter is intended to restrict 
allowable bag limits on board for-hire vessels to paying clients who 
are fishing recreationally, excluding captain and

[[Page 16276]]

crew, thereby, contributing to a reduction in fishing mortality. With a 
reduction in the red grouper bag limit to one fish per person per day, 
there is a greater incentive for captain and crew on for-hire vessels 
to retain fish and supplement the landings of their clients, thereby 
negating some of the effect of the lower red grouper bag limit. The 
Council considered this restriction on captain and crew necessary to 
make the red grouper bag limit effective. The proposed February 15 to 
March 15 closure is consistent with the existing seasonal closure of 
the commercial fishery for gag, red grouper, and black grouper and 
would make the closure more equitable for both user groups and should 
help improve compliance and enforceability. The closure occurs during 
important spawning seasons for all three species. Because red grouper 
are part of a multispecies fishery, prohibiting the landings of the 
three species that represent about 97 percent of recreationally caught 
grouper should reduce red grouper discard mortality during the closure 
and compensate for any additional gag and black grouper fishing 
mortality during the open season that would otherwise occur because of 
more restrictive red grouper regulations.

Additional Consideration of the Seasonal Closure

    The proposed February 15 to March 15 closure of the recreational 
fishery for gag, red grouper, and black grouper is based on the best 
scientific information currently available. However, NMFS expects a new 
stock assessment for gag to be completed in July 2006 that might 
contain new information pertinent to evaluating the need for the 
seasonal closure. In addition, the Florida Fish and Wildlife 
Conservation Commission has expressed concerns about implementation of 
the seasonal closure and has requested an extension of the time period 
for its review of the proposed action under the Coastal Zone Management 
Act. Therefore, at the final rule stage, NMFS may through appropriate 
procedural steps separate the management measures into two separate 
final rules -one addressing the bag limit provisions, and one 
addressing the seasonal closure. That approach would allow the bag 
limit provisions to be implemented in a timely manner, assuming 
approval, and would allow NMFS to defer implementation of the seasonal 
closure until the new gag assessment has been completed. Any 
implications regarding the seasonal closure will have been thoroughly 
analyzed, and NMFS and the state of Florida can resolve any remaining 
coastal zone management issues. NMFS and the Council would carefully 
evaluate the conclusions of the new assessment to determine whether the 
closure remains justified based on the best scientific information 
available.

Classification

    At this time, NMFS has not determined that the regulatory 
amendment, which this proposed rule would implement, is consistent with 
the national standards of the Magnuson-Stevens Act and other applicable 
laws. In making that determination, NMFS will take into account the 
data, views, and comments received during the comment period on the 
regulatory amendment and the comment period on this proposed rule.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an IRFA as required by section 603 of the Regulatory 
Flexibility Act. The IRFA describes the economic impact this proposed 
rule, if adopted, would have on small entities. A description of the 
action, why it is being considered, and the legal basis for this action 
are contained at the beginning of this section in the preamble and in 
the SUMMARY section of the preamble. A summary of the analysis follows.
    This proposed rule would reduce the daily recreational red grouper 
bag limit, establish a closed recreational season for gag, black 
grouper, and red grouper, and eliminate the captain and crew daily 
grouper bag limit. The purpose for this regulatory amendment is to 
implement management measures for the Gulf of Mexico grouper fishery 
which will restrict recreational red grouper landings to levels 
specified in the red grouper-rebuilding plan and minimize impacts on 
other grouper species resulting from more restrictive recreational red 
grouper regulations. The Magnuson-Stevens Act provides the statutory 
basis for the proposed rule.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified.
    A moratorium on the issuance of new charter vessel/headboat (for-
hire) permits for reef fish has been in effect since June 16, 2003, 
and, currently, approximately 1,625 unique vessels are permitted to 
operate in this fishery. The for-hire fishery is comprised of charter 
vessels, which charge fees on a vessel basis, and headboats, which 
charge fees on an individual angler basis. The average charter vessel 
is estimated to generate $76,960 in annual revenue and $36,758 in 
annual ``profit'' (computed as gross revenue minus costs; costs exclude 
depreciation, fixed costs, and returns to owner/operators). The 
comparable figures for an average headboat are $404,172 in annual gross 
revenue and $338,209 in annual profits. Some vessels in the for-hire 
fleet also participate in the commercial grouper fishery. However, 
information on the average revenues generated from operation as a 
commercial vessel and the impacts of these revenues on the overall 
economic performance of the business operation are unknown.
    Although the proposed actions would not directly affect support 
industries, potential reductions in fishing effort and associated 
expenditures may have indirect impacts on hotels, restaurants, gear and 
bait shops, and other associated businesses. It is not possible to 
enumerate or characterize these businesses.
    The proposed rule would not change current reporting, record-
keeping and other compliance requirements under the FMP. These 
requirements include permit qualification criteria and participation in 
data collection programs if selected by NMFS. All of the information 
elements required for these processes 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 
for-hire 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 $6.5 million. Given the economic profile of the for-hire 
fleet presented above, NMFS determined that all for-hire fishing 
entities that would be affected by the proposed action are small 
business entities. Since all of these entities could be affected, NMFS 
determined that the proposed action would 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 whether the regulations place a 
substantial number of small entities at a significant competitive 
disadvantage to large entities. All for-hire entities affected by the 
proposed rule are considered small entities so the issue of 
disproportionality does not arise in the present case. The 
profitability question is whether the regulations significantly reduce 
profit for a substantial number of small entities. For-hire operations 
will bear the primary burden of the proposed

[[Page 16277]]

actions, though spill-over impacts would be expected in associated 
industries, such as hotels, marinas, and bait and tackle shops. For-
hire operations may experience a reduction in bookings, resulting in 
reduced receipts from for-hire fees, tips, gear rental, food or 
beverages, and fish-cleaning. The proposed rule is projected to result 
in a reduction of for-hire fees of up to $2.52 million. Potential 
reduced receipts from other sources cannot be determined. Although the 
incidence of cancellation is not expected to be uniform across the 
Gulf, since the importance of grouper as a target species varies 
geographically and by business entity, the expected reduction in 
reduced for-hire fees equates to approximately $1,400 per vessel, or 
approximately 2 percent of average gross revenues and 4 percent of net 
revenues. The potential impact of the proposed actions on associated 
industries cannot be determined.
    Six alternatives, including the status quo, were considered in 
addition to the preferred red grouper bag limit and seasonal closure. 
The status quo would have allowed continued landing overages in the 
recreational sector and would, therefore, not meet the Council's 
objectives.
    The second alternative would have reduced the red grouper daily bag 
limit to one fish per angler or three fish per vessel, whichever is 
less. This alternative contained no protection for associated grouper 
species and increased the possibility of excessive redirected effort to 
these other species and red grouper bycatch mortality. This alternative 
did not, therefore, meet the Council's objectives.
    The third alternative would have increased the red grouper 
recreational minimum size limit to 22 inches. An increase in the 
minimum size limit, however, would be expected to increase bycatch and 
discard mortality, which is inconsistent with the Council's objective 
of minimizing bycatch and discard mortality. Thus, this alternative 
would not meet the Council's objectives.
    The fourth alternative would have reduced the red grouper 
recreational bag limit within the aggregate grouper limit to one per 
person per day and closed the season for all grouper during August. 
This alternative would have resulted in greater reductions in consumer 
surplus and potential foregone expenditures than the proposed action, 
therefore increasing the adverse economic impacts relative to the 
proposed action.
    The fifth alternative would have reduced the red grouper 
recreational bag limit within the aggregate limit to one per person per 
day and closed the season for all grouper during April through May. 
This alternative would also have resulted in greater reductions in 
consumer surplus and potential foregone expenditures than the proposed 
action.
    The sixth alternative would have reduced the red grouper bag limit 
within the aggregate limit to one per person per day and increased the 
minimum recreational size limit to 21 inches. Similar to an increase of 
the minimum size limit to 22 inches, excessive bycatch mortality was 
expected to accrue to this alternative.
    The final alternative to the proposed red grouper bag limit and 
seasonal closure would have reduced the red grouper bag limit within 
the aggregate grouper limit to one fish per angler or three fish per 
vessel per day, whichever is less, except for reef fish-permitted for-
hire vessels with a U.S. Coast Guard Certificate of Inspection. For 
these vessels, the resultant vessel limit would be one red grouper per 
two paying passengers. While this alternative is projected to result in 
reduced short-term reductions in consumer surplus relative to the 
proposed action, this alternative contained no protection for 
associated species and, therefore, would not address the Council's 
concerns for redirection of effort to other grouper species and 
increased bycatch of red grouper.
    One alternative, the status quo, was considered for the proposed 0-
fish captain and crew grouper bag limit. The status quo, which would 
allow captain and crew a bag limit equal to that of the recreational 
angler, in combination with the other proposed actions, would not 
achieve the necessary red grouper harvest reductions and would not, 
therefore, meet the Council's objectives. The 0-fish captain and crew 
bag limit constrains the potential harvest capacity aboard for-hire 
vessels, limits allowable bag limits to paying clients who are fishing 
recreationally, and contributes to some additional reduction in fishing 
mortality.
    Three alternatives to the preferred alternative, the status quo, 
were considered for the aggregate grouper daily bag limit. The status 
quo for this action would not impose additional restrictions on the 
harvest of other grouper species and would not, therefore, result in 
any direct adverse economic impacts on small entities. Three 
alternatives would reduce the aggregate grouper daily bag limit to 4, 
3, or 2 fish, respectively. The Council has determined that the 1-month 
closure for red, gag, and black grouper would provide the necessary 
protection for these other grouper species to compensate for potential 
redirection of effort in response to the proposed red grouper 
restrictions. Reducing the aggregate bag limit was determined to be 
excessive and would increase the adverse economic impacts relative to 
the proposed action.
    Copies of the IRFA are available (see ADDRESSES).

List of Subjects in 50 CFR Part 622

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

    Dated: March 28, 2006.
William T. Hogarth,
Assistant Administrator for Fisheries, 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.  622.34, paragraph (u) is added to read as follows:


Sec.  622.34  Gulf EEZ seasonal and/or area closures.

* * * * *
    (u) Seasonal closure of the recreational fishery for gag, red 
grouper, and black grouper. The recreational fishery for gag, red 
grouper, and black grouper in or from the Gulf EEZ is closed from 
February 15 to March 15, each year. During the closure, the bag and 
possession limit for gag, red grouper, and black grouper in or from the 
Gulf EEZ is zero.
    3. In Sec.  622.39, the suspensions of paragraphs (b)(1)(ii) and 
(b)(1)(v) are lifted; paragraphs (b)(1)(viii) and (b)(1)(ix) are 
removed; and paragraph (b)(1)(ii) is revised to read as follows:


Sec.  622.39  Bag and possession limits.

* * * * *
    (b) * * *
    (1) * * *
    (ii) 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. 
However, no grouper may be retained by the captain or crew of a vessel 
operating as a charter vessel or headboat -their bag limit is zero.
* * * * *
[FR Doc. E6-4748 Filed 3-30-06; 8:45 am]
BILLING CODE 3510-22-S