[Federal Register Volume 78, Number 20 (Wednesday, January 30, 2013)]
[Rules and Regulations]
[Pages 6218-6221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02013]



[[Page 6218]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 120717247-3029-02]
RIN 0648-BC37


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Amendment 38

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 management measures 
described in Amendment 38 to the Fishery Management Plan for the Reef 
Fish Resources of the Gulf of Mexico (FMP) prepared by the Gulf of 
Mexico (Gulf) Fishery Management Council (Council). This final rule 
modifies post-season accountability measures (AMs) that affect the 
recreational harvest of shallow-water grouper species (SWG), changes 
the trigger for recreational sector AMs for gag and red grouper, and 
revises the Gulf reef fish framework procedure. The intent of this 
final rule is to achieve optimum yield (OY) while ensuring the Gulf 
reef fish fishery resources are utilized efficiently.

DATES: This rule is effective March 1, 2013.

ADDRESSES: Electronic copies of Amendment 38, which includes an 
environmental assessment, fishery impact statement, regulatory 
flexibility act 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: Susan Gerhart, Southeast Regional 
Office, NMFS, telephone: 727-824-5305; email: [email protected].

SUPPLEMENTARY INFORMATION: The reef fish fishery of the 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).
    On October 12, 2012, NMFS published a notice of availability for 
Amendment 38 to the FMP and requested public comments (77 FR 62209). On 
October 19, 2012, NMFS published a proposed rule for Amendment 38 to 
the FMP and requested public comments (77 FR 64300). Amendment 38 was 
approved by the Secretary of Commerce on January 9, 2013. Amendment 38 
and the proposed rule for Amendment 38 outlined the rationale for the 
actions contained in this final rule. A summary of the actions 
implemented by this final rule are provided below.

Management Measures Contained in This Final Rule

    This rule modifies the recreational sector post-season AMs for gag 
and red grouper, which currently affects all SWG species (i.e., gag, 
red grouper, black grouper, scamp, yellowfin grouper, and yellowmouth 
grouper), changes the trigger for recreational sector AMs for gag and 
red grouper, and revises the Gulf reef fish framework procedure. The 
intent of this final rule is to achieve OY while ensuring the fishery 
resources are utilized efficiently.
    This final rule revises the post-season recreational sector AMs for 
gag and red grouper so that the shortening of the recreational fishing 
season following a fishing year with a recreational sector ACL overage 
applies only to the species with landings that exceeded the 
recreational ACL the prior year. Revising the recreational sector AMs 
should improve the likelihood of achieving OY for red grouper and avoid 
unnecessary closures of all SWG species.
    This rule also revises the trigger for post-season AMs for gag and 
red grouper, so that AMs are based on a comparison of the current 
year's recreational sector landings to the recreational ACL. These 
recreational sector AM revisions should provide greater protection to 
the gag and red grouper stocks, be easier for fishermen to understand, 
and be less burdensome to administer.

Additional Measures Contained in Amendment 38

    Amendment 38 adds AMs to the list of measures that may be revised 
through the Gulf reef fish framework process. No changes to the 
regulatory text are required to implement the Amendment 38 action to 
add AMs to the framework process, because NMFS previously erroneously 
included AMs in Sec.  622.48(d) in the rule implementing the Generic 
ACL/AM Amendment (76 FR 82044, December 29, 2011). Amendment 38 also 
updates language in the framework procedure related to Council advisory 
panels and committees. More general language in reference to Council 
committees and advisory panels replaces specific references that are no 
longer accurate. There is no regulatory text associated with this 
measure.

Additional Measures Contained in This Final Rule

    In addition to the other changes to the FMP, this final rule 
revises the management measures contained in the regulations that may 
be established or modified by the framework procedure to match those 
that are contained in the FMP. In the final rule implementing the 
Generic ACL/AM Amendment, NMFS erroneously included sale and purchase 
restrictions, and transfer at sea provisions, in the list of management 
measures at Sec.  622.48(d). Thus, NMFS is removing these two items 
from the list of management measures in Sec.  622.48(d). Additionally, 
NMFS is removing total allowable catch (TAC) from Sec.  622.48(d). TAC 
has been included in the Federal regulations since the adjustment of 
management measures was first codified in 1992 (57 FR 11914, April 8, 
1992). With the implementation of ACLs and ACTs, TAC is no longer used 
in the management of Gulf reef fish.
    In Sec.  622.49, paragraphs (a)(4)(ii)(C) and (a)(5)(ii)(C), NMFS 
clarifies language regarding the management of a recreational sector 
ACL overage. If gag or red grouper are overfished, and the recreational 
ACL is exceeded, the recreational ACL overage is deducted from the 
recreational ACL established for the following year and from the ACT, 
as determined in Sec.  622.49, paragraph (a)(4)(ii)(B) or 
(a)(5)(ii)(B). If the recreational ACT is scheduled to increase in the 
year following a recreational ACL overage, the recreational ACT could 
be maintained at the current level and the overage would be deducted 
from that prior year's ACT. However, if the best scientific information 
available determines that maintaining the prior year's recreational ACT 
is unnecessary, the recreational ACT could increase as scheduled and 
the recreational overage would be deducted from the increased ACT in 
the following fishing year. This distinction was not made in the final 
rule for Amendment 32 to the FMP (77 FR 6988, February 10, 2012); 
however, this clarification is consistent with not allowing the 
recreational ACT to increase above the recreational ACL after an 
overage occurs, maintains a larger buffer between the recreational ACT 
and recreational ACL when an overage occurs, and is what the Council 
intended in Amendment 32.
    NMFS moves the following sentence in the regulations from Sec.  
622.49, paragraph (a)(4)(ii)(A) to paragraph (a)(4)(ii)(B): ``In 
addition, the

[[Page 6219]]

notification will reduce the length of the recreational gag fishing 
season the following fishing year by the amount necessary to ensure gag 
recreational landings do not exceed the recreational ACT in the 
following fishing year.'' This change will keep only recreational in-
season AMs in paragraph (a)(4)(ii)(A), and include the recreational 
post-season AMs in paragraph (a)(4)(ii)(B).
    Additionally, NMFS identified an inadvertent inconsistency between 
the regulatory text in the proposed rule for Amendment 32 to the FMP 
(76 FR 67656, November 2, 2011) and the second proposed rule for 
Amendment 32 to the FMP (77 FR 1910, January 12, 2012). To correct this 
mistake, in Sec.  622.49, paragraph (a)(4)(ii)(B), NMFS revises the 
phrase ``If gag are not overfished'' to read ``Without regard to 
overfished status,'' and in paragraph (a)(5)(ii)(B), NMFS revises the 
phrase ``If red grouper are not overfished'' to read ``Without regard 
to overfished status.''

Comments and Responses

    NMFS received a total of five public comments on Amendment 38 and 
the proposed rule, including three comments from individuals. One 
Federal agency stated they had no comment on the proposed rule. Two 
commenters submitted suggestions for the reef fish fishery that were 
outside the scope of Amendment 38 and the proposed rule. Specific 
comments related to the actions contained in Amendment 38 and the 
proposed rule, as well as NMFS' respective responses, are summarized 
below.
    Comment 1: In southwest Florida, a year-round open season for red 
grouper is needed. There are plenty of legal red grouper within 40 
nautical miles (74 km) of the coast that can be targeted with little or 
no gag bycatch. If red grouper harvest is prohibited, fishermen will 
target snapper at wrecks and ledges. However, gag also occur at these 
wrecks and ledges, and, therefore, fishing in these locations results 
in continual catch and release of gag, which is contrary to the Council 
and NMFS' intent.
    Response: Amendment 38 and this rule do not address the length of 
the recreational red grouper season and this comment is therefore 
beyond the scope of this rule. However, this final rule will remove the 
requirement to shorten the season for all SWG if the gag ACL is 
reached. This will allow the red grouper recreational season to remain 
open even if gag ACL is reached, except during the 2-month gag spawning 
season closure that applies to all SWG.
    We also note that a separate framework action approved by the 
Council at its October 2012 meeting would modify the 2-month gag 
spawning season closure as it applies to SWG other than gag. That 
action has not been implemented yet; however, if that action is 
implemented, the recreational sector for SWG other than gag, in or from 
the Gulf EEZ, would be open for harvest in February and March shoreward 
of the 20-fathom contour line. That action, combined with those in 
Amendment 38, could allow year-round recreational red grouper harvest 
in shallow-water areas, unless the red grouper recreational ACL is 
reached.
    Comment 2: NMFS should reject Action 1, Preferred Alternative 3, 
which would remove the portion of the AMs that require an adjustment of 
the fishing season for all SWG in the year following a gag or red 
grouper recreational ACL overage until further bycatch practicability 
analyses can be performed. After gag, red grouper is the main species 
caught in the SWG complex. Although gag and red grouper occupy slightly 
different habitats, they are generally found in the same areas and 
depths and have a broader depth range of occurrence than the other SWG. 
Also, the proportion of annual gag fishing mortality due to dead 
discards is unknown.
    Response: NMFS disagrees that it should reject Action 1, Preferred 
Alternative 3, until further bycatch practicability analyses can be 
performed. Amendment 38 includes a bycatch practicability analysis that 
concludes there would be no adverse biological impacts associated with 
modifying the gag recreational post-season AMs. NMFS agrees with this 
conclusion. NMFS acknowledges that some gag bycatch will occur if the 
gag recreational season is shortened and fishermen target other species 
in the SWG complex, including red grouper. However, the recreational 
gag ACL has not been reached since the AM was established in 2009 
through Amendment 30B to the FMP (74 FR 17603, April 16, 2009), and the 
AM has not been triggered. Thus, no change in bycatch is expected from 
implementation of this final rule relative to the historical discard 
levels.
    Further, the Council analyzed the impacts to gag bycatch when it 
established a 4-month recreational gag open season in Amendment 32 to 
the FMP, while continuing to allow recreational fishing for SWG other 
than gag year-round (except for the February-March gag spawning season 
closure). That analysis accounted for dead discards and concluded that 
even with an effort increase of 1.5 times what it would have been with 
year-round gag fishing, reductions in total removals would be at the 
level necessary to rebuild the stock. If the recreational gag AM is 
triggered in the future, the changes implemented in this final rule are 
expected to result in only a minimal increase in gag bycatch beyond the 
current level because of the already limited 4-month gag season.
    With respect to the proportion of annual gag fishing mortality due 
to dead discard, this is known and was included in the bycatch 
practicability analysis for Amendment 38. These data were originally 
produced during the 2010 re-run of the gag stock assessment. Although 
the discard and landings numbers are estimates, they are the best 
scientific information available.
    Comment 3: NMFS should approve and implement Action 1, Preferred 
Alternative 4, which replaces the 3-year moving average AM trigger with 
an annual AM trigger.
    Response: NMFS agrees. Comparing the recreational ACL to a single-
year average of recreational landings is a more practical method of 
determining if recreational AMs should be triggered. The Council chose 
Alternative 4 as one of the two preferred alternatives in Action 1.
    Comment 4: NMFS should reject Action 2, Preferred Alternative 2, 
which would modify the Gulf reef fish framework procedure to include 
changes to AMs through the standard documentation process for open 
framework actions. The existing framework procedure, as proposed and 
finalized in the Generic ACL/AM Amendment (76 FR 82044, December 29, 
2011), already includes AMs as an appropriate action under the closed 
framework process. The framework procedure may only be used to take 
actions that have been anticipated and analyzed in the associated FMP. 
Prior to implementing such AMs for a fishery, those specific AMs must 
be fully analyzed in the context of the FMP.
    Response: NMFS disagrees that it should reject Action 2, Preferred 
Alternative 2. The commenter apparently misunderstands the effect of 
the alternative chosen by the Council. The current AMs were established 
by plan amendment and are codified in the regulations at 50 CFR 622.49. 
When one of these AMs is triggered (e.g., the annual catch limit is 
met), then that AM (e.g., closing of the fishery) is implemented by 
NMFS under the closed framework procedure specified in the FMP by 
filing an appropriate notification in the Federal Register. The change 
in framework procedure described in Action 2, Preferred Alternative 2, 
would not change the

[[Page 6220]]

implementation of AMs through this closed framework procedure. Rather, 
Action 2, Preferred Alternative 2, would amend the FMP to allow the 
Council through an open framework action to modify the existing AMs or 
to establish new AMs. The new AMs that could be established would be 
limited to the list of potential AMs in the FMP's open framework 
procedure as amended by this Action. Once an existing AM is modified, 
or a new AM is established for a species through the open framework, 
the modified or new AM will be codified in the regulations and may then 
be implemented annually via a closed framework action. The primary 
difference between an open framework action and a plan amendment is 
that the open framework action may be implemented with a shorter review 
process than that required for a plan amendment. However, any AMs 
established or modified through the open framework procedure would be 
fully analyzed, in the context of the FMP, the MSA, and all other 
applicable laws. The open framework procedure requires that the Council 
develop documentation to support the action and that the Regional 
Administrator review the Council's recommendations and supporting 
information and notify the Council of the determinations, in accordance 
with the MSA and other applicable law. The open framework procedure 
also includes the opportunity for public participation, during both the 
Council's development of the action and NMFS's rulemaking to implement 
the action.

Classification

    The Regional Administrator, Southeast Region, NMFS has determined 
that the actions contained in this final rule and Amendment 38 are 
necessary for the conservation and management of the reef fish fishery 
and are 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.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for this certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding the certification and NMFS has not received any new 
information that would affect its determination. No changes to the 
final rule were made in response to public comments. As a result, a 
regulatory flexibility analysis was not required and none was prepared.

List of Subjects in 50 CFR Part 622

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

    Dated: January 25, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    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.  622.48, paragraph (d) is revised to read as follows:


Sec.  622.48  Adjustment of management measures.

* * * * *
    (d) Gulf reef fish. For a species or species group: reporting and 
monitoring requirements, permitting requirements, bag and possession 
limits (including a bag limit of zero), size limits, vessel trip 
limits, closed seasons or areas and reopenings, annual catch limits 
(ACLs), annual catch targets (ACTs), quotas (including a quota of 
zero), accountability measures (AMs), MSY (or proxy), OY, management 
parameters such as overfished and overfishing definitions, gear 
restrictions (ranging from regulation to complete prohibition), gear 
markings and identification, vessel markings and identification, 
allowable biological catch (ABC) and ABC control rules, rebuilding 
plans, and restrictions relative to conditions of harvested fish 
(maintaining fish in whole condition, use as bait).
* * * * *

0
3. In Sec.  622.49, paragraphs (a)(4)(ii), (a)(5)(ii)(B), 
(a)(5)(ii)(C), and (a)(5)(ii)(D) are revised to read as follows:


Sec.  622.49  Annual catch limits (ACLs), annual catch targets (ACTs), 
and accountability measures (AMs).

    (a) * * *
    (4) * * *
    (ii) Recreational sector. (A) Without regard to overfished status, 
if gag recreational landings, as estimated by the SRD, reach or are 
projected to reach 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 close the recreational sector for 
the remainder of the fishing year. On and after the effective date of 
such a notification, the bag and possession limit of gag in or from the 
Gulf EEZ is zero. This bag and possession limit applies in the Gulf on 
board a vessel for which a valid Federal charter vessel/headboat permit 
for Gulf reef fish has been issued, without regard to where such 
species were harvested, i.e. in state or Federal waters.
    (B) Without regard to overfished status, 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 ACT is unnecessary. In addition, the 
notification will reduce the length of the recreational gag fishing 
season the following fishing year by the amount necessary to ensure gag 
recreational landings do not exceed the recreational ACT in the 
following fishing year.
    (C) If gag are overfished, based on the most recent status of U.S. 
Fisheries Report to Congress, and gag recreational landings, as 
estimated by the SRD, exceed the applicable ACL specified in paragraph 
(a)(4)(ii)(D) of this section, the following measures will apply. In 
addition to the measures specified in paragraphs (a)(4)(ii)(A) and (B) 
of this section, the AA will file a notification with the Office of the 
Federal Register, at or near the beginning of the following fishing 
year to reduce the ACL for that following year by the amount of the ACL 
overage in the prior fishing year, and reduce the ACT, as determined in 
paragraph (a)(4)(ii)(B)of this section, by the amount of the ACL 
overage in the prior fishing year, unless the best scientific 
information available determines that a greater, lesser, or no overage 
adjustment is necessary.
    (D) The applicable recreational ACLs for gag, in gutted weight, are 
1.232 million lb (0.559 million kg) for 2012, 1.495 million lb (0.678 
million kg) for 2013, 1.720 million lb (0.780 million kg) for 2014, and 
1.903 million lb (0.863 million kg) for 2015 and subsequent fishing 
years. The recreational ACTs for gag, in gutted weight, are 1.031 
million

[[Page 6221]]

lb (0.468 million kg) for 2012, 1.287 million lb (0.584 million kg) for 
2013, 1.519 million lb (0.689 million kg) for 2014, and 1.708 million 
lb (0.775 million kg) for 2015 and subsequent fishing years.
    (5) * * *
    (ii) * * *
    (B) Without regard to overfished status, and in addition to the 
measures specified in paragraph (a)(5)(ii)(A) of this section, if red 
grouper recreational landings, as estimated by the SRD, exceed the 
applicable ACL specified in paragraph (a)(5)(ii)(D) of this section, 
the AA will file a notification with the Office of the Federal Register 
to maintain the red grouper ACT, specified in paragraph (a)(5)(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 ACT is unnecessary. In 
addition, the notification will reduce the bag limit by one fish and 
reduce the length of the recreational red grouper fishing season the 
following fishing year by the amount necessary to ensure red grouper 
recreational landings do not exceed the recreational ACT in the 
following fishing year. The minimum red grouper bag limit for 2014 and 
subsequent fishing years is two fish.
    (C) If red grouper are overfished, based on the most recent Status 
of U.S. Fisheries Report to Congress, and red grouper recreational 
landings, as estimated by the SRD, exceed the applicable ACL specified 
in paragraph (a)(5)(ii)(D) of this section, the following measures will 
apply. In addition to the measures specified in paragraphs 
(a)(5)(ii)(A) and (B) of this section, the AA will file a notification 
with the Office of the Federal Register, at or near the beginning of 
the following fishing year to reduce the ACL for that following year by 
the amount of the ACL overage in the prior fishing year, and reduce the 
ACT, as determined in paragraph (a)(5)(ii)(B) of this section, by the 
amount of the ACL overage in the prior fishing year, unless the best 
scientific information available determines that a greater, lesser, or 
no overage adjustment is necessary.
    (D) The recreational ACL for red grouper, in gutted weight, is 1.90 
million lb (0.862 million kg) for 2012 and subsequent fishing years. 
The recreational ACT for red grouper, in gutted weight, is 1.730 
million lb (0.785 million kg) for 2012 and subsequent fishing years.
* * * * *
[FR Doc. 2013-02013 Filed 1-29-13; 8:45 am]
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