[Federal Register Volume 76, Number 15 (Monday, January 24, 2011)]
[Proposed Rules]
[Pages 4084-4087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1370]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 110103005-1005-01]
RIN 0648-BA48


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

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS issues this proposed rule that would 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 June through July seasonal closure of the recreational 
sector for greater amberjack in or from the Gulf of Mexico (Gulf) 
exclusive economic zone (EEZ). The intended effect of the proposed rule 
is to maintain the rebuilding plan targets for the overfished greater 
amberjack resource, reduce the likelihood of exceeding the recreational 
quota for greater amberjack, minimize in-season quota closures for 
greater amberjack during peak recreational fishing months, and increase 
social and economic benefits for Gulf recreational fishers by 
maximizing the number of fishing days available to the recreation 
sector. This rule also proposes revisions to the codified text to 
clarify the definition of a venting device used to deflate the 
abdominal cavity of a Gulf reef fish.

DATES: Written comments must be received on or before February 23, 
2011.

ADDRESSES: You may submit comments on the proposed rule identified by 
0648-BA48 by any of the following methods:
     Electronic submissions: Submit electronic comments via the 
Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
     Mail: Rich Malinowski, Southeast Regional Office, NMFS, 
263 13th Avenue South, St. Petersburg, FL 33701.
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. All comments received are a part 
of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    To submit comments through the Federal e-rulemaking portal: http://www.regulations.gov, enter ``NOAA-NMFS-2010-0281'' in the keyword 
search, then check the box labeled ``Select to find documents accepting 
comments or submissions'', then select ``Send a comment or 
submission''. NMFS will accept anonymous comments (enter N/A in the 
required

[[Page 4085]]

field if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Comments received through means not specified in this rule will not 
be considered.
    Copies of the regulatory amendment, which includes an environmental 
assessment (EA), an initial regulatory flexibility analysis (IRFA), and 
a regulatory impact review, may be obtained from the Gulf of Mexico 
Fishery Management Council, 2203 North Lois Avenue, Suite 1100, Tampa, 
FL 33607; telephone 813-348-1630; fax 813-348-1711; e-mail 
[email protected]; or may be downloaded from the Council's 
Web site at http://www.gulfcouncil.org/.

FOR FURTHER INFORMATION CONTACT: Rich Malinowski, 727-824-5305; fax: 
727-824-5308.

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 through regulations at 50 CFR part 622 under the authority 
of the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act).

Background

    Greater amberjack is currently overfished and undergoing 
overfishing and has been under a rebuilding plan since 2003. In 2006, a 
new stock assessment was completed and determined the stock was not 
recovering at the rate previously projected. The Council initiated a 
stock assessment update in 2010 with the Scientific and Statistical 
Committee (SSC) review occurring in January 2011.
    During the February 2010 Council meeting, the Council requested 
that the greater amberjack recreational fishing season be reviewed and 
analyzed by Council staff and NMFS to potentially establish a 
recreational season closure. Currently, the recreational sector is open 
to harvest all year while the commercial sector has a seasonal closure 
of March through May each year.
    In 2008, Amendment 30A to the FMP was approved for greater 
amberjack. NMFS issued a final rule on July 3, 2008 (73 FR 38139), to 
implement Amendment 30A. Amendment 30A established recreational and 
commercial quotas of 1,368,000 lb (620,514 kg) and 503,000 lb (228,157 
kg), respectively. In 2008, the recreational sector remained open 
throughout the year with an estimated harvest of 88,731 lb (40,248 kg) 
under the quota. In 2008, the commercial sector harvested an estimated 
412,516 lb (187,114 kg) round weight, 82 percent of the available 
quota.
    In 2009, the greater amberjack recreational sector was projected to 
reach its quota and closed on October 24, 2009, which resulted in an 
estimated harvest overage of 124,817 lb (56,616 kg) round weight. The 9 
percent overage in 2009 by the recreational sector was achieved in 69 
fewer fishing days than in 2008. Accountability measures established in 
Amendment 30A reduced the 2010 recreational quota to 1,243,184 lb 
(563,899 kg) round weight, which was projected to be met in late August 
2010. However, these projections were completed prior to the fishery 
closures implemented as a result of the Deepwater Horizon MC252 oil 
spill in the Gulf. Recent projections, completed by NMFS in October of 
2010, indicate the 2010 quota for Gulf recreational greater amberjack 
is unlikely to be exceeded, primarily because of the Deepwater Horizon 
MC252 oil spill fishery closures and the associated reductions in 
recreational fishing effort. Final 2010 recreational harvest data will 
be available in the spring of 2011.
    The commercial sector was closed on November 7, 2009 after 
harvesting an estimated 632,928 lb (287,091 kg), which accounts for a 
25.8-percent overage of the 503,000 lb (228,157 kg) commercial quota. 
The 129,928-lb (58,934-kg) overage was deducted from the 2010 
commercial quota resulting in a quota of 373,072 lb (169,223 kg) round 
weight for the 2010 fishing year, as prescribed in the accountability 
measures of Amendment 30A.
    The greater amberjack rebuilding plan is scheduled to increase the 
total allowable catch (TAC) or annual catch limit of 2,547,000 lb 
(1,155,300 kg) round weight for the recreational sector and 938,000 lb 
(425,470 kg) round weight for the commercial sector in the years 2011-
2013. These increases would only take place if the 2010 stock 
assessment reveals the greater amberjack stock is on schedule to be 
rebuilt in 2012. Should the 2010 stock assessment reveal that greater 
amberjack is not rebuilding on target, the quotas would remain at the 
current levels.

Provisions of This Proposed Rule

    This proposed rule would establish a 2-month seasonal closure of 
the recreational sector for greater amberjack within the Gulf reef fish 
fishery. Harvest and possession of recreational greater amberjack would 
be prohibited in or from the Gulf EEZ during the months of June and 
July each year. In 2009, the recreational sector demonstrated it has 
the capacity to exceed the recreational quota, thus requiring an in-
season quota closure and prompting the Council to review the 
recreational fishing season. At its October 2010 meeting, the Council 
voted to establish a 2-month seasonal closure, from June 1 through July 
31, beginning in 2011. This seasonal closure is intended to minimize 
in-season quota closures for greater amberjack during peak economic 
fishing months and maximize social and economic benefits for Gulf 
recreational fishers by maximizing the number of fishing days available 
to the recreational sector.
    This 2-month closure coincides with the open recreational seasons 
for other managed reef fish species, including red snapper. Dividing 
the recreational greater amberjack season into two portions of the year 
that bracket the red snapper season provides recreational fishers the 
opportunity to fish for at least one of the targeted species year round 
(provided the recreational quota for greater amberjack is not 
exceeded). A closed season for Gulf greater amberjack that overlaps 
with an open season for Gulf red snapper is intended to minimize the 
social and economic impacts to recreational fishers in the Gulf.

Additional Measure Contained in This Proposed Rule

    NMFS implemented a ``venting device'' gear requirement for the Gulf 
reef fish fishery through Amendment 27 to the FMP. A final rule 
implementing this amendment published on January 29, 2008 (73 FR 5117). 
The venting device requirement became effective on June 1, 2008. The 
requirement states, ``At least one venting tool is required and must be 
used to deflate the swim bladders of Gulf reef fish to release the fish 
with minimum damage.'' NMFS recently became aware that this requirement 
as well as the definition for ``venting device'' incorrectly specifies 
venting the ``swim bladders'' of fish. Instead, the regulation should 
require venting the ``abdominal cavities'' of fish. Venting the swim 
bladder of a fish could result in the mortality of the fish. However, 
venting the abdominal cavity of the fish allows the gases in the fish 
to escape, without causing harm to the fish. Therefore, through this 
rulemaking, NMFS proposes to revise the definition of ``venting 
device'' in Sec.  622.2 and Sec.  622.41 of the regulations, to more 
accurately characterize the part of the fish's anatomy where venting 
should occur. The venting tool should be used to vent the ``abdominal 
cavity'' of the fish, not the ``swim bladder'' of the fish.

[[Page 4086]]

This is a mere technical correction to appropriately identify the area 
on the fish to be vented. It in no other way alters the existing 
regulatory requirements.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the regulatory amendment, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    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, 5 U.S.C. 603, for this proposed rule. The IRFA 
describes the economic impact that this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the objectives of, and 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 copy of the full analysis 
is available from the Council (see ADDRESSES). A summary of the IRFA 
follows.
    The proposed rule would implement an annual seasonal closure for 
the recreational sector to the harvest of greater amberjack for the 
months of June through July in or from the Gulf EEZ. The purpose of 
this proposed rule is to maintain the rebuilding plan targets for the 
overfished greater amberjack resource, reduce the likelihood of 
exceeding the recreational quota for greater amberjack, minimize in-
season quota closures for greater amberjack during peak recreational 
fishing months, and increase social and economic benefits for Gulf 
recreational fishers by maximizing the number of fishing days available 
to the recreational sector. The proposed rule also revises the 
definition of a venting device from one used to deflate the swim 
bladders of fish to one used to deflate the abdominal cavities of fish. 
This is a mere technical correction to align the definition of venting 
to its true intent of reducing mortality when releasing the fish.
    The Magnuson-Stevens Act provides the statutory basis for the 
proposed rule.
    This proposed rule would not establish any new reporting, record-
keeping, or other compliance requirements. No duplicative, overlapping, 
or conflicting Federal rules have been identified for this proposed 
rule.
    The proposed rule is expected to directly affect for-hire fishing 
vessels that harvest greater amberjack in the Gulf. The for-hire sector 
is comprised of charterboats, which charge a fee on a vessel basis, and 
headboats, which charge a fee on an individual angler (head) basis. 
For-hire vessels are required to have a Gulf reef fish for-hire permit 
to harvest greater amberjack in the Gulf. The Small Business 
Administration has established size criteria for all major industry 
sectors in the U.S. including fish harvesters. A for-hire business 
involved in fish harvesting is classified as a small business if it is 
independently owned and operated, is not dominant in its field of 
operation (including its affiliates), and has combined annual receipts 
not in excess of $7.0 million (NAICS code 713990, recreational 
industries).
    In 2009, there were 1,422 unique for-hire vessels that were 
permitted to operate in the Gulf reef fish fishery. These vessels were 
distributed as follows: 140 vessels in Alabama, 877 vessels in Florida, 
101 vessels in Louisiana, 54 vessels in Mississippi, and 232 vessels in 
Texas. The for-hire permit does not distinguish between headboats and 
charter boats, but in 2009, the headboat survey program included 79 
headboats. The majority of headboats were located in Florida (43), 
followed by Texas (22), Alabama (10), and Louisiana (4). It cannot be 
determined with available data how many of the 1,422 for-hire vessels 
permitted to operate in the Gulf reef fish fishery harvest greater 
amberjack, so all permitted for-hire vessels are assumed to comprise 
the universe of potentially affected vessels. The average charterboat 
is estimated to earn approximately $88,000 (2008 dollars) in annual 
revenues, while the average headboat is estimated to earn approximately 
$461,000 (2008 dollars).
    Based on these revenue estimates, all for-hire vessels expected to 
be directly affected by this proposed rule are determined for the 
purpose of this analysis to be small business entities. Some fleet 
activity (i.e., multiple vessels owned by a single entity) may exist in 
the for-hire sector but its extent is unknown, and all vessels are 
treated as independent entities in this analysis.
    All entities expected to be directly affected by the proposed rule 
are determined for the purpose of this analysis to be small business 
entities, so no disproportionate effects on small entities relative to 
large entities are expected because of this action.
    The proposed rule would establish a June 1 through July 31 seasonal 
closure of the recreational greater amberjack sector of the Gulf reef 
fish fishery. On the other hand, the no action alternative would likely 
result in a recreational sector closure commencing on August 27, 2011, 
as a result of the quota being met or exceeded. Relative to the no 
action alternative, the proposed rule is expected, for the first year, 
to result in an increase in profits by $52,526 for the charterboat 
sector as a whole, or by $39 per charterboat. Conversely, the proposed 
rule is expected, in the first year, to result in a decrease in profits 
by $59,832 for the headboat sector as a whole, or by $757 per headboat. 
Relative to the average revenues of $88,000 per charterboat and 
$461,000 per headboat, the estimated effects of the proposed rule may 
be deemed relatively small. Considering the effects on charterboats and 
headboats as a whole, the proposed rule, in the first year is expected 
to result in a net decrease in overall for-hire vessel profits of 
$7,306. This net amount is deemed small, particularly when spread over 
all 1,422 for-hire vessels. In addition, it is expected that net 
profits for both charterboats and headboats would not deteriorate as 
much as they would under an unplanned quota closure associated with the 
no action alternative. Based on the resulting net effects on profits, 
it is concluded that the proposed rule would not have a significant 
economic impact on a substantial number of small entities.
    Four alternatives, including the proposed action, were considered 
in this amendment. The first alternative to the proposed action is the 
no action alternative. This alternative resulted in quota closure and 
overages in 2009, prompting a reduction in the following year's (2010) 
quota. In April 2010, the recreational sector requested the Council to 
consider a seasonal closure to minimize the adverse effects of the 
quota closure. The second alternative to the proposed action would 
establish a March through May seasonal closure. This alternative is 
expected to result in larger overall adverse economic effects than the 
proposed action. While this alternative would result in less adverse 
economic effects on headboats, the adverse economic effects on 
charterboats would be substantially larger. The third alternative to 
the proposed action would establish a May through June seasonal 
closure. This third alternative has been estimated to result in larger 
adverse economic effects than the proposed action. Similar to the 
second alternative to the proposed action, this third alternative would 
result in less adverse economic effects on headboats but substantially 
larger

[[Page 4087]]

adverse economic effects on charterboats.
    The proposed rule to correct the definition of venting device would 
have no additional economic effects on small entities because this tool 
is already required to be used, and this correction merely clarifies 
how it should be used.

List of Subjects in 50 CFR Part 622

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

    Dated: January 19, 2011.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, 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.  622.2, the definition for ``venting device'' is revised 
to read as follows:


Sec.  622.2  Definitions and acronyms.

* * * * *
    Venting device means a device intended to deflate the abdominal 
cavity of a fish to release the fish with minimum damage.
* * * * *
    3. In Sec.  622.34, paragraph (o) is added to read as follows:


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

* * * * *
    (o) Seasonal closure of the recreational sector for greater 
amberjack. The recreational sector for greater amberjack in or from the 
Gulf EEZ is closed from June 1 through July 31, each year. During the 
closure, the bag and possession limit for greater amberjack in or from 
the Gulf EEZ is zero.
* * * * *
    4. In Sec.  622.41, the first sentence of paragraph (m)(3) is 
revised to read as follows:


  622.41 Species Specific Limitations.

* * * * *
    (m) * * *
    (3) Venting tool. At least one venting tool is required and must be 
used to deflate the abdominal cavities of Gulf reef fish to release the 
fish with minimum damage. * * *
* * * * *
[FR Doc. 2011-1370 Filed 1-21-11; 8:45 am]
BILLING CODE 3510-22-P