[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Proposed Rules]
[Pages 82264-82267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33601]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 100812345-1789-01]
RIN 0648-AY73


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Comprehensive Annual Catch Limit Amendment for the South Atlantic

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

ACTION: Amended proposed rule; request for comments.

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

SUMMARY: NMFS hereby amends a proposed rule published on December 1, 
2011, to implement the Comprehensive Annual Catch Limit Amendment 
(Comprehensive ACL Amendment) to the Fishery Management Plans (FMPs) 
for the Snapper-Grouper Fishery of the South Atlantic Region (Snapper-
Grouper FMP), the Golden Crab Fishery of the South Atlantic Region, the 
Dolphin and Wahoo Fishery off the Atlantic States, and the Pelagic 
Sargassum Habitat of the South Atlantic Region as prepared and 
submitted by the South Atlantic Fishery Management Council (Council). 
In November 2011, the Council's Scientific and Statistical Committee 
(SSC) met and determined the allowable biological catch (ABC) for 
wreckfish should be reduced to prevent overfishing from occurring. The 
proposed rule that was published on December 1, 2011 contained a 
variety of actions unrelated to the wreckfish ABC and those actions did 
not need to be delayed by further Council decisions with respect to the 
revised wreckfish

[[Page 82265]]

ABC. During its December 5-9, 2011 meeting, the Council concurred with 
the SSC's determination for a revised wreckfish ABC and to develop an 
amended proposed rule for the Comprehensive ACL Amendment to notify the 
public of this change to the wreckfish ABC. Based on the new 
recommended ABC, this rule proposes to reduce the commercial and 
recreational annual catch limits (ACLs) for wreckfish. The intent of 
this rule is to specify sector ACLs for wreckfish while maintaining a 
catch level consistent with achieving optimum yield for the resource.

DATES: Written comments must be received on or before January 17, 2012.

ADDRESSES: You may submit comments on the proposed rule identified by 
``NOAA-NMFS-2011-0087'' 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: Rick DeVictor, Southeast Regional Office, NMFS, 263 
13th Avenue South, St. Petersburg, FL 33701.
    Instructions: 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, click on ``submit a comment,'' then enter ``NOAA-
NMFS-2011-0087'' in the keyword search and click on ``search''. To view 
posted comments during the comment period, enter ``NOAA-NMFS-2011-
0087'' in the keyword search and click on ``search''. NMFS will accept 
anonymous comments (enter N/A in the required 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 through means not specified in this rule will not be 
accepted.
    Electronic copies of the Comprehensive ACL Amendment, which 
includes a final environmental impact statement, a regulatory 
flexibility analysis, and a regulatory impact review, may be obtained 
from the Southeast Regional Office Web Site at http://sero.nmfs.noaa.gov/sf/pdfs/Comp%20ACL%20Am%20101411%20FINAL.pdf. 
Electronic copies of the additional analyses prepared for this proposed 
rule may be obtained from the same Web site.

FOR FURTHER INFORMATION CONTACT: Rick DeVictor, Southeast Regional 
Office, NMFS, telephone: (727) 824-5305; email: [email protected].

SUPPLEMENTARY INFORMATION: Wreckfish are managed under the Snapper-
Grouper FMP. The Snapper-Grouper 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

    A notice of availability for the Comprehensive ACL Amendment was 
published on October 20, 2011 (76 FR 65153), with a comment period 
ending December 19, 2011. A proposed rule for the Comprehensive ACL 
Amendment was published on December 1, 2011 (76 FR 74757), with a 
comment period ending December 19, 2011. That proposed rule included 
measures to: Specify ACLs and accountability measures for species in 
the FMPs for Snapper-Grouper, Dolphin and Wahoo, Golden Crab, and 
Sargassum; revise the snapper-grouper fishery management unit; 
establish a daily vessel limit for the recreational possession of 
wreckfish; create a closed season for the wreckfish recreational 
sector; prohibit recreational bag limit sales of dolphin from for-hire 
vessels; and set a minimum size limit for dolphin off most of the South 
Atlantic states.
    The Council's SSC met November 8-10, 2011, and evaluated the ABC 
for wreckfish. NMFS Southeast Regional Office staff gave a presentation 
at that meeting regarding a depletion-corrected average catch analysis 
of the wreckfish population. Based on that analysis, the SSC determined 
the ABC of 250,000 lb (113,398 kg), round weight, was too large and 
could lead to overfishing. The SSC recommended a smaller ABC of 235,000 
lb (106,594 kg), round weight. The Council agreed to this lower ABC at 
its December 5-9, 2011 meeting, and because the Comprehensive ACL 
Amendment proposes an ACL for wreckfish equal to the ABC for wreckfish, 
the Council voted to revise the sector ACLs for wreckfish through a 
second proposed rule to implement the Comprehensive ACL Amendment. The 
allocation percentages proposed in the Comprehensive ACL Amendment are 
95 percent for the commercial sector and 5 percent for the recreational 
sector. Based on these allocation percentages, the commercial ACL 
proposed in this rule is 223,250 lb (101,264 kg), round weight, and the 
recreational ACL is 11,750 lb (5,330 kg), round weight. The commercial 
ACL would be equivalent to the commercial quota. The codified text 
contained in this amended proposed rule only includes the further 
revisions to the wreckfish sector ACLs. The codified text for all other 
measures in the Comprehensive ACL Amendment is contained in the 
proposed rule published on December 1, 2011 (76 FR 74757) and is not 
repeated here.
    The most recent recommendation developed by the Council's SSC at 
their November 2011 meeting retains the use of an ABC Control Rule 
proposed in the Comprehensive ACL Amendment to determine the wreckfish 
ABC. The proposed ABC Control Rule contains four levels to characterize 
the methodologies available to compute the ABC. Each level computes the 
ABC differently depending on the available information such as landings 
and life history information. At their August 2010 meeting, the SSC 
concluded that a control rule based on catch-only data (Level 4) should 
be used for wreckfish. The SSC also recommended, at their August 2010 
meeting, the development of a Depletion-Based Stock Reduction Analysis 
(Level 2) or Depletion-Corrected Average Catch (DCAC) analysis (Level 
3) in the next year to compare with the current catch-only 
recommendation for wreckfish. A DCAC analysis was completed and the SSC 
reviewed that analysis and adopted the methodology at their November 
2011 meeting to develop a new ABC recommendation for wreckfish, in 
accordance with the proposed ABC Control Rule contained in the 
Comprehensive ACL Amendment.
    Additionally, at its December meeting, the Council voted to approve 
Amendment 20A to the Snapper-Grouper FMP (Amendment 20A). Amendment 20A 
includes actions to revise certain aspects of the individual 
transferable quota (ITQ) system for the wreckfish sector of the 
snapper-grouper fishery. Specifically, Amendment 20A proposes to define 
and revert inactive wreckfish shares, redistribute reverted shares to 
remaining shareholders, establish a cap on the number of shares a 
single entity may own, and establish an appeals process for 
redistribution of reverted shares. The regulatory flexibility act 
analysis (RFAA) contained in that amendment examines the effects the 
proposed actions in Amendment 20A would have on wreckfish shareholders 
within the snapper-grouper fishery, in combination

[[Page 82266]]

with the effects of the proposed actions in this amended proposed rule 
to implement the Comprehensive ACL Amendment.
    NMFS requests comments regarding these additional revisions to the 
codified text. These management measures, as well as the management 
measures contained in the proposed rule published on December 1, 2011, 
would be addressed in one final rule to implement the Comprehensive ACL 
Amendment, if it is approved. No other revisions or changes to the 
proposed rule to implement the Comprehensive ACL Amendment published on 
December 1, 2011, are included here. All discussion of the management 
measures contained in the Comprehensive ACL Amendment are provided in 
the proposed rule that published on December 1, 2011 (76 FR 74757), and 
in the Comprehensive ACL Amendment, and are not repeated here.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this amended proposed 
rule is consistent with the amendment, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed rule to amend the Comprehensive 
ACL Amendment, if adopted, would not have a significant economic impact 
on a substantial number of small entities (76 FR 74757). The factual 
basis for this determination is as follows.
    The RFAA for the Comprehensive ACL Amendment analyzed all of the 
measures contained therein and in the rule that published on December 
1, 2011. Therefore, the results of that analysis are not repeated here. 
A copy of the full analysis is available from NMFS (see ADDRESSES).
    The purpose of the amendment is to specify an ABC Control Rule, 
ACLs, and AMs where needed to comply with Magnuson-Stevens Act 
requirements. The objective of the amendment is to specify measures 
expected to prevent overfishing and achieve optimum yield while 
minimizing, to the extent practicable, adverse social and economic 
effects.
    The Magnuson-Stevens Act provides the statutory basis for this 
rule. This rule would amend the proposed rule to implement the 
Comprehensive ACL Amendment by reducing the proposed commercial ACL for 
wreckfish from 237,500 lb (107,728 kg) to 223,250 lb (101,264 kg), 
round weight, and the proposed recreational ACL for wreckfish from 
12,500 lb (5,670 kg) to 11,750 lb (5,330 kg), round weight, the 
rationale for which is provided in the preamble and is not repeated 
here.
    This rule is expected to directly affect shareholders that possess 
quota shares and are active in the commercial wreckfish sector of the 
snapper-grouper fishery. This rule is also expected to directly affect 
for-hire vessels that possess for-hire snapper-grouper permits in the 
South Atlantic. The SBA has established size criteria for all major 
industry sectors in the U.S. including fish harvesters. A 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 $4.0 million (NAICS code 114111, finfish fishing) for 
all its affiliated operations worldwide.
    The snapper-grouper fishery in the South Atlantic is a limited 
access fishery with a cap on the total number of snapper-grouper 
permits available. In 2010, 598 vessels possessed snapper-grouper 
unlimited permits and 136 vessels possessed limited snapper-grouper 
permits. Thus, a total of 734 vessels possessed limited access permits 
to harvest snapper-grouper species. Unlimited permit holders may 
harvest snapper-grouper in unlimited quantities per trip, subject to 
quotas and ACLs, while limited permit holders may only harvest up to 
225 lb (102.1 kg) of snapper-grouper per trip.
    The commercial wreckfish sector of the snapper-grouper fishery is 
managed under an ITQ system. As of November 17, 2011, there were 20 
shareholders in the commercial wreckfish ITQ system. The current 
minimum quota share held by a shareholder is 0.06 percent, the maximum 
quota share is 20.63 percent, and the average quota share is 
approximately 5 percent. With respect to the distribution of shares, 13 
shareholders own less than 5 percent, 4 shareholders own between 5 
percent and 10 percent, 2 shareholders own between 10 percent and 15 
percent, and 1 shareholder owns more than 20 percent of the quota 
shares.
    Based on landings data from the 5 most recent fishing years (i.e., 
2006/2007 to 2010/2011), 13 of the 20 shareholders had no commercial 
wreckfish landings during this time and thus are considered inactive. 
Further, 11 of these 13 inactive shareholders were not commercially 
active in any fisheries, and thus earned no gross revenue or profit 
from commercial fishing activities, between 2006 and 2010. The other 
two inactive shareholders commercially harvested species other than 
wreckfish during this time. The extent to which these two shareholders 
were involved in other commercial harvesting activities differs 
greatly, as one was only minimally involved and the other significantly 
involved in such activities. Specific information regarding their 
landings and gross revenue is confidential and thus cannot be provided, 
while information regarding their profits is currently not available.
    Seven of the 20 shareholders had at least 1 lb (0.45 kg) of 
commercial wreckfish landings during the five most recent fishing years 
and thus are considered active. More specifically, these active 
shareholders' annual wreckfish landings and gross revenue were 32,804 
lb (14,880 kg) and $82,085 on average during this time, respectively. 
On average, these active shareholders also earned $90,582 in annual 
gross revenue from other species during this time. Thus, annual gross 
revenue from commercial fishing was $172,668 per active shareholder on 
average during the 5 most recent fishing years. Information regarding 
these active shareholders' profits is not currently available. The 
maximum gross revenue earned by a single active shareholder is 
confidential information and cannot be reported. However, this figure 
is less than the SBA threshold for a small business.
    Between 2005 and 2009, approximately 2,018 vessels possessed for-
hire snapper-grouper permits. For-hire permits do not distinguish 
charterboats from headboats and thus the specific number of 
charterboats with for-hire snapper-grouper permits cannot be estimated. 
Because wreckfish could not be legally retained by vessels operating 
under hire during this time, they had no wreckfish landings associated 
with for-hire harvest. Producer surplus represents profit in the for-
hire sector. Producer surplus estimates for snapper-grouper vessels are 
not currently available. However, because for-hire vessels could not 
legally retain wreckfish, by definition, producer surplus due to the 
harvest of wreckfish is zero.
    A study on the for-hire sector in the Southeast Region presented 
two sets of average gross revenue estimates for the charter and 
headboat sectors in the South Atlantic. The first set of estimates was 
as follows: $51,000 for charterboats

[[Page 82267]]

on the Atlantic coast of Florida; $60,135 for charterboats in North 
Carolina; $26,304 for charterboats in South Carolina; $56,551 for 
charterboats in Georgia; $140,714 for headboats in Florida; and 
$123,000 for headboats in the other South Atlantic states. The second 
set of estimates was as follows: $69,268 for charterboats and $299,551 
for headboats across all South Atlantic states. Because the second set 
of estimates were considerably higher than the first set, a new 
approach was employed that generated the following estimates of average 
gross revenue: $73,365 for charterboats in North Carolina, $32,091 for 
charterboats in South Carolina; $68,992 for charterboats in Georgia; 
and $261,990 for headboats across all South Atlantic states. Data for 
Florida were unavailable in the second set of estimates.
    Based on the figures above, all active shareholders expected to be 
directly affected by this rule are determined, for the purpose of this 
analysis, to be small business entities. Similarly, and regardless of 
which estimates are used, based on these figures, all for-hire fishing 
vessels expected to be directly affected by this rule are determined, 
for the purpose of this analysis, to be small business entities.
    For the action to reduce the proposed commercial ACL for wreckfish, 
the commercial sector's ACL and quota would be reduced from 237,500 lb 
(107,728 kg) to 223,250 lb (101,264 kg), or by 14,250 lb (6,464 kg), 
which represents a 6 percent reduction. Thus, in turn, each 
shareholder's annual allocation of wreckfish would also be reduced by 6 
percent. However, due to proposed actions in Amendment 20A to the 
Snapper-Grouper FMP, the quota shares currently held by the 13 inactive 
shareholders would be expected to be reverted and redistributed to the 
7 active shareholders. As such, the reduction in the commercial 
sector's ACL and quota would not be expected to directly affect these 
13 inactive shareholders and, thus, they are not considered further in 
this analysis.
    With respect to the 7 active shareholders, the expected 
distribution of shares resulting from the proposed actions in Amendment 
20A is as follows: 3.55 percent, 9.05 percent, 11.24 percent, 11.62 
percent, 18.38 percent, 23 percent, and 23.16 percent, respectively. 
Under the original proposed commercial ACL of 237,500 lb (107,728 kg), 
the average annual allocation of wreckfish per active shareholder is 
33,929 lb (15,390 kg). Under the 223,250 lb (101,264 kg) commercial ACL 
proposed in this rule, the annual allocation per active shareholder 
would be reduced to 31,893 lb (14,466 kg), or by 2,036 lb (924 kg), 
reflecting the 6 percent reduction. Thus, the expected loss in annual 
gross revenue due to the reduction in the commercial ACL is estimated 
to be $6,027 on average per active shareholder. This decrease in the 
active shareholders' gross revenue from wreckfish landings represents a 
decrease of approximately 3.5 percent in gross revenue from all of 
their commercial fishing activities on average. Expected reductions in 
gross revenue overestimate the expected reduction in profits because 
costs are not taken into account. Thus, this action would be expected 
to decrease the profits of the seven active shareholders, though likely 
not significantly, relative to the profits they would earn if the 
commercial ACL were not reduced.
    For the action to reduce the proposed recreational ACL for 
wreckfish, the recreational sector's ACL would be reduced from 12,500 
lb (5,670 kg) to 11,750 lb (5,330 kg), or by 750 lb (340 kg). Although 
the percent reduction in the recreational ACL is also 6 percent, a 
reduction of 750 lb (340 kg) is trivial overall and, given that there 
are 2,018 vessels with for-hire snapper-grouper permits, on a per 
vessel basis would be approximately 3 lb (1.4 kg). None of these 
vessels have earned any producer surplus from recreational landings of 
wreckfish in the past. Further, it is highly likely that only a 
relatively small number of for-hire vessels may have earned a small 
amount of producer surplus under the originally proposed recreational 
ACL, and the proposed reduction would not alter that result. Thus, the 
reduction in the recreational ACL is not expected to significantly 
reduce producer surplus for for-hire vessels.
    As a result of the information above, a reduction in profits for a 
substantial number of small entities is not expected. Because this 
rule, if implemented, is not expected to have a significant direct 
adverse economic effect on the profits of a substantial number of small 
entities, an initial regulatory flexibility analysis is not required 
and none has been prepared.

List of Subjects in 50 CFR Part 622

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

    Dated: December 27, 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, as 
proposed to be amended at 76 FR 74757, December 1, 2011, is proposed to 
be further 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.  622.42, the first sentence of paragraph (f) is revised 
to read as follows:


Sec.  622.42  Quotas.

* * * * *
    (f) Wreckfish. The quota for wreckfish applies to wreckfish 
shareholders, or their employees, contractors, or agents, and is 
223,250 lb (101,264 kg), round weight. * * *
* * * * *
    3. In Sec.  622.49, paragraph (b)(18)(ii) is revised to read as 
follows:


Sec.  622.49  Annual Catch Limits (ACLs) and Accountability Measures 
(AMs).

    (b) * * *
    (18) * * *
    (ii) Recreational sector. If recreational landings for wreckfish, 
as estimated by the SRD, exceed the recreational ACL of 11,750 lb 
(5,330 kg), round weight, then during the following fishing year, 
recreational landings will be monitored for a persistence in increased 
landings and, if necessary, the AA will file a notification with the 
Office of the Federal Register, to reduce the length of the following 
recreational fishing season by the amount necessary to ensure 
recreational landings do not exceed the recreational ACL in the 
following fishing year. However, the length of the recreational season 
will also not be reduced during the following fishing year if the RA 
determines, using the best scientific information available, that a 
reduction in the length of the following fishing season is unnecessary.
* * * * *
[FR Doc. 2011-33601 Filed 12-29-11; 8:45 am]
BILLING CODE 3510-22-P