[Federal Register Volume 71, Number 115 (Thursday, June 15, 2006)]
[Rules and Regulations]
[Pages 34534-34536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-9312]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 060322083-6147-02; 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: Final rule.

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SUMMARY: NMFS issues this final rule to implement the bag limit 
provisions of 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 
will establish a recreational bag limit for Gulf red grouper of one 
fish per person per day and 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. The 
intended effect of this final rule is to help maintain recreational 
landings at levels consistent with the red grouper rebuilding plan.

DATES: This final rule is effective July 17, 2006.

ADDRESSES: Copies of the Final Regulatory Flexibility Analysis (FRFA), 
are available from Andy Strelcheck, NMFS, Southeast Regional Office, 
263 13\th\ 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-
5305; 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 to implement the 
regulatory amendment and requested public comment on the proposed rule 
through May 1, 2006 (71 FR 16275, March 31, 2006). In addition to the 
measures contained in this final rule, the proposed rule included a 
February 15 to March 15 recreational closure for red grouper, gag, and 
black grouper. 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. Also, the Florida Fish 
and Wildlife Conservation Commission expressed concerns about 
implementation of the seasonal closure. Therefore, NMFS is implementing 
the bag limit and captain and crew provisions in this final rule but 
will defer possible implementation of the seasonal closure until the 
new gag assessment is completed. If the seasonal closure is warranted 
based on the results of the gag stock assessment, another final rule 
will be published for that action. The seasonal closure provision has 
been removed from this final rule. The rationale for the measures in 
the regulatory amendment is provided in the preamble to the proposed 
rule and is not repeated here. A summary of the public comments 
received by NMFS on the proposed rule and NMFS' responses are provided 
below.

Comments and Responses

    NMFS received a total of 8 different comments from 12 commenters. 
Following is a summary of the comments received on the proposed rule 
and NMFS' responses.
    Comment 1: Eight commenters opposed the February 15 to March 15 
recreational seasonal closure and believed the closure period would 
severely impact the livelihood of charter boat captains, crew, and 
their families.
    Response: 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 for red grouper, gag, and 
black grouper. Therefore, NMFS intends to defer possible implementation 
of the seasonal closure until the new gag assessment is completed. If 
the seasonal closure is warranted based on the results of the gag stock 
assessment, the closure may be implemented via appropriate rulemaking.
    Comment 2: Two commenters opposed prohibiting for-hire captain and 
crew from retaining bag limits of grouper while under charter. Two 
commenters were in favor of prohibiting for-hire captain and crew from 
retaining bag limits of grouper.
    Response: 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, negating some of the benefit of the lower red grouper bag 
limit. Although past regulations allowed captains and crew to socially 
and economically benefit from the enjoyment of fishing and supplying 
their families with fresh fish, continuing to allow captain and crew to 
retain bag limits reduces the effectiveness of the red grouper bag 
limit. Implementing this measure increases the likelihood that red 
grouper landings reduction targets are reached, as specified in the 
rebuilding plan for red grouper. Not implementing this measure may 
result in more severe management reductions with accompanying increased 
adverse economic impacts to captains and crew. Additionally, 
prohibiting for-hire captains and crew from retaining bag limits of 
grouper while under charter is considered equitable because commercial 
fishermen would be prohibited from retaining bag limits of reef fish 
while commercially fishing if Amendment 18A to the FMP is implemented.
    Comment 3: Two commenters were in favor of reducing the bag limit 
from two to one red grouper per person per day.
    Response: The reduction in red grouper bag limit is part of 
management measures to return recreational red grouper landings to 
levels specified in the rebuilding plan. Reducing the red grouper bag 
limit to one is estimated to reduce landings of red grouper by 29.7 
percent.
    Comment 4: One commenter suggested creating a closed season of 
September 15 to October 15 instead of February 15 to March 15.
    Response: The seasonal closure was proposed for February 15 to 
March 15 because the commercial seasonal closure occurs at this time 
and includes important spawning seasons for red, black, and gag 
grouper. The Council also considered seasonal closures during April-May 
and August and was presented with analyses for seasonal closures in 
September and October. A September 15 to October 15 seasonal closure 
would result in similar, although slightly greater, reductions in

[[Page 34535]]

harvest than the preferred February 15 to March 15 seasonal closure. 
However, a closure during fall would not provide the added benefits of 
protecting red, gag, and black grouper during spawning or closing the 
recreational fishery at the same time as the commercial fishery. NMFS 
intends to defer possible implementation of the recreational seasonal 
closure until the new gag assessment is completed in summer 2006.
    Comment 5: Three commenters each suggested one of the following 
topics: (1) Better enforcement of charter boats that fish in Federal 
waters without permits; (2) purchase of all charter boat businesses by 
the government to relieve the economic strain of regulations on 
fishermen; and (3) prevention of supposed toxic material dumping by 
phosphate plants as a measure to prevent fish mortality.
    Response: The regulatory amendment only considered reducing the bag 
limit from two to one red grouper per person per day, prohibiting for-
hire captain and crew from retaining bag limits of grouper while under 
charter, and creating a seasonal closure from February 15 to March 15. 
The regulatory amendment did not consider the topics listed in the 
above comment because other measures were considered to be more 
appropriate. Therefore, this comment is beyond the scope of the 
regulatory amendment and this rule.

Classification

    The Administrator, Southeast Region, NMFS, determined the 
regulatory amendment is necessary for the conservation and management 
of the Gulf reef fish fishery and is consistent with the Magnuson-
Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A FRFA was prepared. The FRFA incorporates the initial regulatory 
flexibility analysis (IRFA), a summary of the significant issues raised 
by public comments in response to the IRFA, and NMFS responses to those 
comments, and a summary of the analyses completed to support the 
action. A summary of the analyses follows.
    This rule will reduce the daily recreational red grouper bag limit 
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 that will restrict recreational red 
grouper landings to levels specified in the red grouper rebuilding 
plan. The Magnuson-Stevens Act provides the statutory basis for this 
final rule.
    The proposed rule contained a February 15 to March 15 recreational 
seasonal closure for red grouper, gag, and black grouper. In response 
to public comment and to allow for evaluation of the results of a new 
stock assessment for gag expected to be completed in July 2006, 
consideration of implementation of the seasonal closure will be 
deferred until the new assessment is completed.
    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 per-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 fisheries. 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 rule will 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 rule will not change current reporting, recordkeeping 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 could be affected by this final rule are small business 
entities. Because all of these entities could be affected, NMFS 
determined that the final rule will affect a substantial number of 
small entities.
    The determination 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 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, 
specifically charter boats, will bear the primary burden of the rule, 
although spill-over impacts are 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. 
No trip cancellations were projected due to the reduced red grouper bag 
limit because most grouper trips have not historically landed either 
the former red grouper or aggregate grouper daily bag limit. 
Approximately 13,000 trips per year, on average, are expected to be 
affected by the reduced red grouper bag limit. Although few of these 
trips are expected to be cancelled due to the reduced bag limit, they 
represent approximately $1.57 million in for-hire fees (approximately 
$1,000 per vessel), or approximately 1 percent of average gross 
revenues and 3 percent of average net revenues per vessel. No financial 
impacts would accrue to trips that are not cancelled as a result of the 
reduced bag limit. The impact of the rule on associated industries 
cannot be determined.
    Six alternatives, including the status quo, were considered to the 
proposed 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 because 
continued overages would not allow the fishery to meet rebuilding 
goals. Additionally, for the

[[Page 34536]]

reasons stated above, the rule does not include the proposed seasonal 
closure.
    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 is more restrictive than the bag limit in the 
final rule and, therefore, would result in greater adverse economic 
impacts due to greater loss of consumer surplus and greater likelihood 
of trip cancellation.
    The third alternative would have increased the red grouper 
recreational minimum size limit to 22 inches (55.9 cm). 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, therefore increasing the 
adverse economic impacts relative to the final rule.
    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 final 
rule.
    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 (53.3 cm). Similar to an 
increase of the minimum size limit to 22 inches (55.9 cm), excessive 
bycatch mortality was expected to accrue to this alternative.
    The final alternative to the red grouper bag limit 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. This 
alternative is more restrictive than the rule and would result in 
greater adverse economic impacts than the rule.
    One alternative, the status quo, was considered for the 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 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 additional reduction in fishing mortality.
    Copies of the FRFA are available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 622

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

    Dated: June 8, 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, 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. E6-9312 Filed 6-14-06; 8:45 am]
BILLING CODE 3510-22-S