[Federal Register Volume 71, Number 222 (Friday, November 17, 2006)]
[Rules and Regulations]
[Pages 66878-66880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-19481]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 060322083-6288-03; 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 seasonal closure 
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 
establishes 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 final rule is to help maintain 
recreational landings at levels consistent with the red grouper 
rebuilding plan while minimizing potential shift of fishing effort to 
associated grouper species.

DATES: This final rule is effective December 18, 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 a 
regulatory amendment that included a recreational bag limit for Gulf 
red grouper of one fish per person per day, a zero grouper bag limit 
for captain and crew of a vessel operating as a charter or headboat, 
and a February 15 to March 15 seasonal closure of the recreational 
fishery for gag, red grouper, and black grouper. NMFS requested public 
comment on the proposed rule through May 1, 2006 (71 FR 16275, March 
31, 2006). However, in response to public comment expressing concern 
about the proposed seasonal closure and because a pertinent, new gag 
assessment was pending, NMFS separated the proposed management measures 
into two final rules--one addressing the bag limit provisions, and one 
addressing the seasonal closure. The bag limit provisions were 
published in a final rule (71 FR 34534, June 15, 2006) which became 
effective July 17, 2006. Implementation of the final rule containing 
the seasonal closure was deferred pending the results of the new gag 
assessment.
    This final rule establishes a February 15 to March 15 seasonal 
closure of the recreational fishery for gag, red grouper, and black 
grouper. The seasonal closure will help restrict recreational red 
grouper landings to levels specified in the rebuilding plan and will 
prevent or minimize increases in fishing mortality on gag and black 
grouper that could result from a shift in fishing effort due to the 
more restrictive red grouper bag limit. A new stock assessment for gag 
completed in July 2006 indicates the Gulf of Mexico gag stock is 
undergoing overfishing. Thus, this seasonal closure also contributes to 
necessary reductions in fishing mortality for gag. The 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. In addition, the closure will provide further 
protection for these species because it occurs during important 
spawning periods for all three species. Black grouper are included in 
the seasonal closure, in part, because they are similar in appearance 
to gag and, therefore, difficult for fisherman to distinguish from gag. 
If black grouper were not included in the closure, compliance with the 
closure, and therefore the closure's effectiveness would be 
compromised. For all of these reasons, NMFS believes the seasonal 
recreational closure for gag, red grouper, and black grouper is 
warranted.
    Additional 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 public comments and NMFS' responses on the bag limit 
provisions of the proposed rule are provided in the final rule 
published June 15, 2006 (71 FR 34534). A summary of public comments 
received by NMFS on the seasonal closure provisions of the proposed 
rule and NMFS' responses are provided below. Comments and NMFS' 
responses to those comments regarding the economic impacts of the 
closed season are provided under the Classification section of this 
document.

Comments and 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: A 34- to 45-percent reduction is needed to return 
recreational red grouper landings to levels specified in the rebuilding 
plan. The February 15 to March 15 closure, when combined with bag limit 
provisions published in a final rule (71 FR 34534) on June 15, 2006, is 
estimated to reduce red grouper landings by 34 percent and gag and 
black grouper landings by 7 percent. The closure includes important 
spawning seasons for all three species and would overlap the 1-month 
commercial fishery grouper closure. Prohibiting harvest of all three 
species will prevent effort shifting from occurring and reduce fishing 
mortality. Relative to the other closure alternatives considered by the 
Council, this alternative would result in the fewest cancelled trips 
and forgone revenues of the closure alternatives considered by the 
Council.
    Comment 2: 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

[[Page 66879]]

because the commercial seasonal closure occurs at this time and 
includes important spawning seasons for gag, red grouper, and black 
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 
harvest than the preferred February 15 to March 15 seasonal closure. 
However, a closure during fall would not provide the added benefits of 
protecting gag, red grouper, and black grouper during spawning seasons 
or closing the recreational fishery at the same time as the commercial 
fishery.

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. As discussed in the proposed rule (71 FR 16275, March 31, 
2006), NMFS separated the management measures into two final rules -one 
addressing the bag limit provisions which published June 15, 2006 (71 
FR 34534), and this final rule which addresses the recreational 
seasonal closures. The IRFA addressed all of the proposed management 
measures. The FRFA for the June 15, 2006 final rule included discussion 
of all alternatives for the bag limit provisions and the seasonal 
closure but focused primarily on the impacts of the bag limit 
provisions. The following FRFA summary for this final rule restates the 
discussion of all alternatives but focuses primarily on the analysis of 
the seasonal closure contained in this final rule.
    This final rule will establish a February 15 to March 15 
recreational seasonal closure for red grouper, gag, and black grouper. 
The purpose of 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.
    Eight comments were received from the public on the economic 
impacts of the closed season component of the proposed rule. As 
previously discussed, although consideration of the seasonal closure 
was deferred, no changes were made in the final rule as a result of 
these comments. The comments stated that the closure would severely 
impact the livelihood of charter boat captains, crew, and their 
families. NMFS agrees that the closure will likely result in reduced 
bookings and trip receipts. Estimates of the expected impacts have been 
provided in the assessment and are summarized below. The low red 
grouper bag limit and bycatch problems associated with adjusting the 
minimum size limit, however, necessitate closure to achieve the harvest 
reduction goals. Single species closure raises additional bycatch 
problems. The seasonal closure specified by the final rule is expected 
to result in the fewest cancelled trips and forgone revenues of the 
closure alternatives considered by the Council while providing the 
added unquantifiable benefits of spawning season protection for the 
three species.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified.
    In June 2003, a moratorium was placed on the issuance of new 
charter vessel/headboat (for-hire) permits for reef fish. The 
moratorium was replaced by a limited access system which became 
effective on June 15, 2006. 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. Sufficient data are not available 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 or take 
excessive time, 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. 
The seasonal closure contained in this final rule is estimated to 
result in a reduction of for-hire fees of up to $2.52 million 
(approximately $1,550 per vessel) due to cancellation of trips during 
the closed season, or approximately 2 percent of average gross revenues 
and 4 percent of average

[[Page 66880]]

net revenues per vessel. Sufficient data are not available to determine 
the precise impact of this final rule on associated industries, but it 
can be expected that some decline in revenues would occur.
    As mentioned in the introduction to this FRFA summary, the 
following discussion of alternatives includes discussion of the bag 
limit provisions implemented via the June 15, 2006 final rule (71 FR 
34534) and the seasonal closure implemented by this final rule. 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.
    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: November 13, 2006.
Samuel D. Rauch III
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.  622.34, paragraph (o) is revised and paragraph (u) is added 
to read as follows:


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

    (o) Seasonal closure of the commercial fishery for gag, red 
grouper, and black grouper. From February 15 to March 15, each year, no 
person aboard a vessel for which a valid Federal commercial permit for 
Gulf reef fish has been issued may possess gag, red grouper, or black 
grouper in the Gulf, regardless of where harvested. From February 15 
until March 15, each year, the sale or purchase of gag, red grouper, or 
black grouper is prohibited as specified in Sec.  622.45(c)(4).
* * * * *
    (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.
[FR Doc. E6-19481 Filed 11-16-06; 8:45 am]
BILLING CODE 3510-22-S