[Federal Register Volume 77, Number 67 (Friday, April 6, 2012)]
[Proposed Rules]
[Pages 20775-20778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8376]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 100217095-2197-05]
RIN 0648-AY56


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Amendment 32 Supplement

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

ACTION: Supplemental proposed rule; request for comments.

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SUMMARY: NMFS proposes to supplement the regulations that implemented 
management measures described in Amendment 32 to the Fishery Management 
Plan (FMP) for the Reef Fish Resources of the Gulf of Mexico (Amendment 
32) prepared by the Gulf of Mexico Fishery Management Council 
(Council). After publication of the final rule for Amendment 32, 
published on February 10, 2012, NMFS identified inconsistencies in the 
regulatory text regarding the quotas and annual catch limits (ACLs) for 
``other shallow water grouper'' (Other SWG) that need correction. This 
rule would revise the regulatory text regarding the quotas and ACLs for 
Other SWG. Additionally, NMFS proposes revisions to improve clarity of 
the regulations.

DATES: Written comments must be received on or before April 23, 2012.

ADDRESSES: You may submit comments on the supplemental proposed rule 
identified by ``NOAA-NMFS-2011-0135'' 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: Peter Hood, 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-2011-0135'' in the keyword search and click on ``search''. To view 
posted comments during the comment period, enter ``NOAA-NMFS-2011-
0135'' 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 Amendment 32, which includes a final 
environmental impact statement (FEIS), 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/GrouperSnapperandReefFish.htm.

FOR FURTHER INFORMATION CONTACT: Peter Hood, Southeast Regional Office, 
NMFS, telephone 727-824-5305; email: [email protected].

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico 
(Gulf) 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
    A final rule to implement management measures described in 
Amendment 32 was published on February 10, 2012 (77 FR 6988). That 
final rule included measures to:

--Adjust the commercial gag quota and recreational annual catch target 
(ACT) for 2012 through 2015 and subsequent fishing years, consistent 
with the gag rebuilding plan established in Amendment 32;
--Adjust the shallow-water grouper (SWG) quota;
--Adjust the commercial and recreational sector's ACLs for gag and red 
grouper;
--Adjust the commercial ACL for SWG;
--Establish a formula-based method for setting gag and red grouper 
multi-use allocation for the grouper/tilefish individual fishing quota 
program in the Gulf;
--Set the recreational gag fishing season from July 1 through October 
31;
--Reduce the gag commercial size limit to 22 inches (59 cm) total 
length (TL); and
--Modify the gag and red grouper accountability measures (AMs).


[[Page 20776]]


    In planning the publication of the final rule for Amendment 32, 
NMFS anticipated it would publish before the final rule to implement 
the ACLs and Accountability Measures Amendment for Reef Fish, Red Drum, 
Shrimp, and Coral Fisheries of the Gulf of Mexico (Generic ACL 
Amendment). However, due to a delay in publishing the final rule for 
Amendment 32, the Generic ACL Amendment final rule published first (76 
FR 82044, December 29, 2011) with implementation effective on January 
30, 2012. The final rule for the Generic ACL Amendment removed the 
commercial SWG quotas and commercial SWG ACL and replaced them with 
separate multi-year commercial Other SWG quotas and stock complex ACLs 
for Other SWG. Inadvertently, the regulatory text in the Amendment 32 
final rule setting the commercial SWG quotas and the commercial ACL for 
SWG was not modified to reflect the measures established in the Generic 
ACL Amendment. To correct this inconsistency, the subject supplemental 
proposed rule would reinstate the commercial Other SWG quotas and the 
stock complex commercial ACLs for Other SWG, as established in the 
final rule which implemented the Generic ACL Amendment, as well as 
remove the commercial SWG quotas and commercial SWG ACL implemented 
through Amendment 32. In addition, some minor revisions to improve the 
clarity of the regulations were identified and this rule would correct 
these issues. First, NMFS proposes to revise the term ``other SWG'' to 
read ``Other SWG'' throughout the 50 CFR part 622 regulations to 
improve the clarity of the regulations. If implemented, the definition 
of SWG would be amended to include the definition for Other SWG. In the 
Gulf, Other SWG would still include black grouper, scamp, yellowfin 
grouper, and yellowmouth grouper. Second, in two instances in the 
regulations, sentences within a paragraph are reordered to improve 
clarity. Third, a sentence is deleted in the regulations, because it is 
already stated in the preceding paragraph and therefore is redundant.
    NMFS requests comments for a period of 15 days regarding these 
revisions. These revisions will be addressed in a second final rule to 
implement Amendment 32. No other revisions or changes to the final rule 
implementing Amendment 32 are included here. All discussion of the 
management measures contained in Amendment 32, including the AMs, are 
provided in the proposed rule published on November 2, 2011 (76 FR 
67656), the final rule published on February 10, 2012 (77 FR 6988), and 
in Amendment 32, 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 supplemental 
proposed rule is consistent with the FMP, Amendment 32, 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.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this supplemental proposed rule, if implemented, 
would not have a significant economic impact on a substantial number of 
small entities. The factual basis for this determination is as follows:
    The purpose of this supplemental proposed rule is discussed in the 
preamble and not repeated here. The Magnuson-Stevens Act provides the 
statutory basis for this supplemental proposed rule.
    This supplemental proposed rule, if implemented, would be expected 
to directly affect commercial fishing vessels that harvest Other SWG. 
Commercial harvest of Other SWG in the Gulf is managed under the 
Grouper-Tilefish Individual Fishing Quota (IFQ) program. The IFQ 
program manages harvest through shares and allocation. Shares are a 
percentage of the commercial quota assigned to each IFQ shareholder and 
allocation is the actual poundage that each IFQ shareholder or 
allocation holder is given the opportunity to possess, land, or sell, 
during a given calendar year. Shareholders are the initial recipients 
of allocation, which can be transferred (sold) to and used by anyone 
with a valid commercial Gulf reef fish permit. Because anyone with a 
valid commercial Gulf reef fish permit can obtain and use Other SWG 
allocation, all commercial Gulf reef fish permit holders could be 
affected by this supplemental proposed rule. On February 28, 2012, 908 
entities possessed a valid or renewable commercial Gulf reef fish 
permit. In 2010, however, only 282 commercial entities landed Other SWG 
in the Gulf. Comparable data for 2011 were not available at the time of 
this assessment.
    No other small entities that would be expected to be directly 
affected by this supplemental proposed rule have been identified.
    The Small Business Administration has established size criteria for 
all major industry sectors in the U.S. including fish harvesters and 
recreational services. 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. Average receipts data for all entities 
potentially affected by this rule are not available. The average 
commercial vessel in the Gulf reef fish fishery is estimated to earn 
approximately $48,000 (2010 dollars) per year in ex-vessel revenue. 
Based on this average revenue estimate, all commercial vessels expected 
to be directly affected by this supplemental proposed rule are 
determined for the purpose of this analysis to be small business 
entities.
    This supplemental proposed rule, if implemented, would revise the 
regulatory text regarding the commercial quotas and the stock complex 
ACLs for Other SWG and would not be expected to reduce profits for a 
substantial number of small entities. Revision of the commercial quotas 
for Other SWG would increase the Other SWG commercial quotas by an 
average of 108,750 lb (49,328 kg), gutted weight (gw), per year over 
the period 2012-2015, or a total of 435,000 lb (197,312 kg), gw, 
relative to the status quo. These quota increases would be expected to 
result in an increase in ex-vessel revenue by an average of 
approximately $425,000 (2010 dollars) per year, or approximately $1.7 
million (2010 dollars) total, for all affected commercial fishing 
businesses. As a result, this supplemental proposed rule, if 
implemented, would be expected to increase profits to all directly 
affected small business entities.
    Because this supplemental proposed rule, if implemented, would not 
be expected to have any direct adverse economic impact on any small 
entities, an initial regulatory flexibility analysis is not required 
and none has been prepared.
    This supplemental proposed rule does not establish any new 
reporting, record-keeping, or other compliance requirements.

List of Subjects in 50 CFR Part 622

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


[[Page 20777]]


    Dated: April 3, 2012.
Alan D. Risenhoover,
Acting 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 ``Shallow-water grouper 
(SWG)'' is revised to read as follows:


Sec.  622.2  Definitions and acronyms.

* * * * *
    Shallow-water grouper (SWG) means, in the Gulf, gag, red grouper, 
black grouper, scamp, yellowfin grouper, and yellowmouth grouper. Other 
shallow-water grouper (Other SWG) means, in the Gulf, SWG excluding gag 
and red grouper (i.e., black grouper, scamp, yellowfin grouper, and 
yellowmouth grouper). In addition, for the purposes of the IFQ program 
for Gulf groupers and tilefishes in Sec.  622.20, speckled hind and 
warsaw grouper are also included as Other SWG as specified in Sec.  
622.20(a)(6).
* * * * *
    3. In Sec.  622.20, paragraph (a) introductory text, the second 
sentence of paragraph (a)(4), paragraphs (a)(5)(i) and (a)(5)(ii), the 
second sentence of paragraphs (a)(6), (a)(7), (b)(3)(i), and the first 
sentence of paragraph (b)(6)(i) are revised to read as follows:


Sec.  622.20  Individual fishing quota (IFQ) program for Gulf groupers 
and tilefishes.

    (a) General. This section establishes an IFQ program for the 
commercial sectors of the Gulf reef fish fishery for groupers 
(including DWG, red grouper, gag, and Other SWG) and tilefishes 
(including goldface tilefish, blueline tilefish, and tilefish). For the 
purposes of this IFQ program, DWG includes yellowedge grouper, warsaw 
grouper, snowy grouper, speckled hind, and scamp, but only as specified 
in paragraph (a)(7) of this section. For the purposes of this IFQ 
program, Other SWG includes black grouper, scamp, yellowfin grouper, 
yellowmouth grouper, warsaw grouper, and speckled hind, but only as 
specified in paragraph (a)(6) of this section. Under the IFQ program, 
the RA initially will assign eligible participants IFQ shares, in five 
share categories. These IFQ shares are equivalent to a percentage of 
the annual commercial quotas for DWG, red grouper, gag, Other SWG, and 
tilefishes, based on their applicable historical landings. Shares 
determine the amount of IFQ allocation for Gulf groupers and 
tilefishes, in pounds gutted weight, a shareholder is initially 
authorized to possess, land, or sell in a given calendar year. Shares 
and annual IFQ allocation are transferable. See Sec.  622.4(a)(2)(ix) 
regarding a requirement for a vessel landing groupers or tilefishes 
subject to this IFQ program to have an IFQ vessel account for Gulf 
groupers and tilefishes. See Sec.  622.4(a)(4)(ii) regarding a 
requirement for a Gulf IFQ dealer endorsement. Details regarding 
eligibility, applicable landings history, account setup and transaction 
requirements, constraints on transferability, and other provisions of 
this IFQ system are provided in the following paragraphs of this 
section.
* * * * *
    (4) * * * IFQ allocation for the five respective share categories 
is derived at the beginning of each year by multiplying a shareholder's 
IFQ share times the annual commercial quota for gag, red grouper, DWG, 
Other SWG and tilefishes. * * *
    (5) * * *
    (i) Red grouper multi-use allocation. (A) At the time the 
commercial quota for red grouper is distributed to IFQ shareholders, a 
percentage of each shareholder's initial red grouper allocation will be 
converted to red grouper multi-use allocation. Red grouper multi-use 
allocation, determined annually, will be based on the following 
formula:

Red Grouper multi-use allocation (in percent) = 100 * [Gag ACL--Gag 
commercial quota]/Red grouper commercial quota

    (B) Red grouper multi-use allocation may be used to possess, land, 
or sell either red grouper or gag under certain conditions. Red grouper 
multi-use allocation may be used to possess, land, or sell red grouper 
only after an IFQ account holder's (shareholder or allocation holder's) 
red grouper allocation has been landed and sold, or transferred; and to 
possess, land, or sell gag, only after both gag and gag multi-use 
allocation have been landed and sold, or transferred. However, if gag 
is under a rebuilding plan, the percentage of red grouper multi-use 
allocation is equal to zero.
    (ii) Gag multi-use allocation. (A) At the time the commercial quota 
for gag is distributed to IFQ shareholders, a percentage of each 
shareholder's initial gag allocation will be converted to gag multi-use 
allocation. Gag multi-use allocation, determined annually, will be 
based on the following formula:

Gag multi-use allocation (in percent) = 100 * [Red grouper ACL--Red 
grouper commercial quota]/Gag commercial quota

    (B) Gag multi-use allocation may be used to possess, land, or sell 
either gag or red grouper under certain conditions. Gag multi-use 
allocation may be used to possess, land, or sell gag only after an IFQ 
account holder's (shareholder or allocation holder's) gag allocation 
has been landed and sold, or transferred; and to possess, land, or sell 
red grouper, only after both red grouper and red grouper multi-use 
allocation have been landed and sold, or transferred. Multi-use 
allocation transfer procedures and restrictions are specified in 
paragraph (b)(4)(iv) of this section. However, if red grouper is under 
a rebuilding plan, the percentage of red grouper multi-use allocation 
is equal to zero.
    (6) * * * For the purposes of the IFQ program for Gulf groupers and 
tilefishes, once all of an IFQ account holder's DWG allocation has been 
landed and sold, or transferred, or if an IFQ account holder has no DWG 
allocation, then Other SWG allocation may be used to land and sell 
warsaw grouper and speckled hind.
    (7) * * * For the purposes of the IFQ program for Gulf groupers and 
tilefishes, once all of an IFQ account holder's Other SWG allocation 
has been landed and sold, or transferred, or if an IFQ account holder 
has no SWG allocation, then DWG allocation may be used to land and sell 
scamp.
* * * * *
    (b) * * *
    (3) * * *
    (i) * * * The owner or operator of a vessel landing IFQ groupers or 
tilefishes is responsible for ensuring that NMFS is contacted at least 
3 hours, but no more than 12 hours, in advance of landing to report the 
time and location of landing, estimated grouper and tilefish landings 
in pounds gutted weight for each share category (gag, red grouper, DWG, 
Other SWG, tilefishes), vessel identification number (Coast Guard 
registration number or state registration number), and the name and 
address of the IFQ dealer where the groupers or tilefishes are to be 
received. * * *
* * * * *
    (6) * * *
    (i) IFQ share cap for each share category. No person, including a 
corporation or other entity, may individually or collectively hold IFQ 
shares in any share category (gag, red grouper, DWG, Other SWG, or 
tilefishes)

[[Page 20778]]

in excess of the maximum share initially issued for the applicable 
share category to any person at the beginning of the IFQ program, as of 
the date appeals are resolved and shares are adjusted accordingly. * * 
*
* * * * *
    4. In Sec.  622.42, paragraph (a)(1)(iii) introductory text and 
paragraph (a)(1)(iii)(A) are revised to read as follows:


Sec.  622.42  Quotas.

* * * * *
    (a) * * *
    (1) * * *
    (iii) Shallow-water groupers (SWG) have separate quotas for gag and 
red grouper and a combined quota for other shallow-water grouper (Other 
SWG) species (including black grouper, scamp, yellowfin grouper, and 
yellowmouth grouper), as specified in paragraphs (a)(1)(iii)(A) through 
(C) of this section. These quotas are specified in gutted weight, that 
is, eviscerated but otherwise whole.
    (A) Other SWG combined. (1) For fishing year 2012--509,000 lb 
(230,879 kg).
    (2) For fishing year 2013--518,000 lb (234,961 kg).
    (3) For fishing year 2014--523,000 lb (237,229 kg).
    (4) For fishing year 2015 and subsequent fishing years--525,000 lb 
(238,136 kg).
* * * * *
    5. In Sec.  622.49, paragraphs (a)(3) and (a)(4)(ii)(B) are revised 
to read as follows:


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

    (a) * * *
    (3) Other shallow-water grouper (Other SWG) combined (including 
black grouper, scamp, yellowfin grouper, and yellowmouth grouper)--(i) 
Commercial sector. The IFQ program for groupers and tilefishes in the 
Gulf of Mexico serves as the accountability measure for commercial 
Other SWG. The commercial ACL for Other SWG is equal to the applicable 
quota specified in Sec.  622.42(a)(1)(iii)(A).
    (ii) Recreational sector. If the sum of the commercial and 
recreational landings, as estimated by the SRD, exceeds the stock 
complex ACL specified in paragraph (a)(3)(iii) of this section, then 
during the following fishing year, if the sum of the commercial and 
recreational landings reaches or is projected to reach the applicable 
ACL specified in (a)(3)(iii) of this section, the AA will file a 
notification with the Office of the Federal Register to close the 
recreational sector for the remainder of that fishing year.
    (iii) The stock complex ACLs for Other SWG, in gutted weight, are 
688,000 lb (312,072 kg) for 2012, 700,000 lb (317,515 kg) for 2013, 
707,000 lb (320,690 kg) for 2014, and 710,000 lb (322,051 kg) for 2015 
and subsequent years.
    (4) * * *
    (ii) * * *
    (B) If gag are not overfished, and in addition to the measures 
specified in paragraph (a)(4)(ii)(A) of this section, if gag 
recreational landings, as estimated by the SRD, exceed the applicable 
ACLs specified in paragraph (a)(4)(ii)(D) of this section, the AA will 
file a notification with the Office of the Federal Register to maintain 
the gag ACT, specified in paragraph (a)(4)(ii)(D) of this section, for 
that following fishing year at the level of the prior year's ACT, 
unless the best scientific information available determines that 
maintaining the prior year's target catch (ACT) is unnecessary.
* * * * *
[FR Doc. 2012-8376 Filed 4-5-12; 8:45 am]
BILLING CODE 3510-22-P