[Federal Register Volume 84, Number 43 (Tuesday, March 5, 2019)]
[Proposed Rules]
[Pages 7864-7867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03829]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 190213109-9109-01]
RIN 0648-BI63


Temporary Rule To Establish Management Measures for Red Grouper 
in the Gulf of Mexico

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

ACTION: Proposed temporary rule; emergency action.

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SUMMARY: NMFS proposes to issue an emergency rule as requested by the 
Gulf of Mexico Fishery Management Council (Council) to address concerns 
regarding the Gulf of Mexico (Gulf) red grouper stock. The Council made 
this request after receiving new information that indicates the stock 
may be in decline. This proposed emergency rule would reduce the 
commercial and recreational annual catch limits (ACLs) and annual catch 
targets (ACTs). This emergency rule would be effective for 180 days, 
although NMFS may extend the emergency rule's effectiveness for a 
maximum of an additional 186 days. The intended effect of this 
emergency rule is to provide a temporary rapid reduction in Gulf red 
grouper harvest levels to protect the stock from overharvest while the 
Council develops permanent rulemaking.

DATES: Written comments must be received by March 20, 2019.

ADDRESSES: You may submit comments on the proposed emergency rule, 
identified by ``NOAA-NMFS-2018-0142,'' by either of the following 
methods:
     Electronic submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal: http://www.regulations.gov. Go to www.regulations.gov/#!docketDetail;D=NOAA-
NMFS-2018-0142 click the ``Comment Now!'' icon, complete the required 
fields, and enter or attach your comments.
     Mail: Submit written comments to Peter Hood, NMFS 
Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 
33701.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in required fields if you wish to remain 
anonymous).
    Electronic copies of the documents in support of this emergency 
rule, which include an environmental assessment, may be obtained from 
the Southeast

[[Page 7865]]

Regional Office website at http://sero.nmfs.noaa.gov.

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

SUPPLEMENTARY INFORMATION: NMFS and the Council manage Gulf reef fish, 
including red grouper, under the Fishery Management Plan for Reef Fish 
Resources of the Gulf (FMP). The Council prepared the FMP and NMFS 
implements the FMP through regulations at 50 CFR part 622 under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act). The Magnuson-Stevens Act provides the legal 
authority for the promulgation of emergency regulations under section 
305(c) (16 U.S.C. 1855(c)).

Background

    All weights in this emergency rule are in gutted weight. The 
current red grouper commercial and recreational ACLs and ACT were 
implemented through a framework action to the FMP in 2016 (81 FR 70365, 
October 12, 2016). These values were based on a red grouper stock ACL 
equal to 10.70 million lb (4.85 million kg). The current sector 
allocation for red grouper is 76 percent commercial and 24 percent 
recreational, and the commercial and recreational ACTs reduce the 
sector-specific ACLs by 95 percent and 92 percent, respectively. The 
current red grouper commercial ACL is 8,190,000 lb (3,714,922 kg) and 
the commercial ACT (commercial quota) is 7,780,000 lb (3,528,949 kg). 
The current red grouper recreational ACL is 2,580,000 lb (1,170,268 kg) 
and the recreational ACT is 2,370,000 lb (1,075,014 kg).
    The commercial sector is managed under an individual fishing quota 
(IFQ) program. The commercial red grouper quota equals the commercial 
ACT, and is allocated to red grouper shareholders each year. The 
commercial IFQ program also serves as the accountability measure (AM) 
for the commercial sector.
    The current recreational AMs specify that if the recreational ACL 
is reached or projected to be reached, red grouper fishing will be 
closed to the recreational sector for the remainder of the fishing 
year. If the ACL is exceeded in the following fishing year the level of 
harvest will be set at the prior year's recreational ACT and the length 
of the recreational red grouper fishing season will be adjusted based 
on the amount necessary to ensure red grouper recreational landings do 
not exceed the recreational ACT. If the stock is overfished and an 
overage occurs, NMFS will reduce the recreational ACL by the amount of 
the ACL overage in the prior fishing year. The overage adjustment will 
also apply to the following year's recreational ACT.

Status of Stock

    The stock status of Gulf red grouper was last evaluated in 2015 
through the Southeast Data Assessment Review (SEDAR) 42 stock 
assessment. The Council's Scientific and Statistical Committee (SSC) 
reviewed the assessment results and agreed with the assessment's 
determination that red grouper were not overfished or experiencing 
overfishing. At that time, the SSC recommended increases in the 
overfishing limit and the acceptable biological catch (ABC), which were 
the basis for the current commercial and recreational ACLs and ACTs.

Justification and Need for This Emergency Rule

    At the October 2018 meeting, the Council requested that NMFS 
implement an emergency or interim rule to reduce the Gulf red grouper 
stock ACL for the 2019 fishing year to 4.60 million lb (2.09 million 
kg), or the 2017 total red grouper landings, whichever is less. The 
Council also began work on a red grouper framework action to reduce the 
red grouper catch limits on a more permanent basis. The Council took 
these actions based on recent information regarding the health of the 
stock. Since 2014, combined commercial and recreational Gulf red 
grouper landings have trended downwards from over 7.26 million lb (3.29 
million kg) in 2014 to approximately 4.16 million lb (1.89 million kg) 
in 2017, an indication that the stock may be in decline. The most 
recent red grouper stock assessment, SEDAR 61, will not be completed 
until mid-2019. Therefore, the NMFS Southeast Fisheries Science Center 
(SEFSC) conducted an interim red grouper stock analysis to assist the 
SSC in developing harvest advice for 2019. The interim analysis used an 
index from a fishery-independent survey to compare the current stock 
condition with the stock condition forecast by the previous assessment 
(SEDAR 42). This analysis suggested that the stock may be declining. 
The Council's SSC reviewed the analysis and concluded that it contained 
too much uncertainty to use for a new ABC recommendation but did 
support recommending that the Council reduce the 2019 Gulf red grouper 
total ACL to 4.60 million lb (2.09 million kg). The Council received 
this advice at its meeting in October 2018.
    In addition to the SSC's advice based on the interim analysis, the 
Council heard public testimony at the October 2018 meeting primarily 
from commercial fishermen. These fishermen expressed concern about the 
status of the red grouper stock, noting that red grouper are harder to 
catch than in previous years and that there appears to be a scarcity of 
legal-size and larger fish throughout the species' range on the west 
Florida shelf.
    The Council also discussed the severe red tide conditions that 
occurred off the Florida west coast in the summer and fall of 2018, 
which may have adversely affected the red grouper stock. Although the 
impacts of this recent red tide are unknown, the 2009 SEDAR 12 update 
assessment indicated that a similar red tide event in 2005 reduced the 
red grouper spawning stock biomass.
    The 2017 combined red grouper commercial and recreational landings 
(approximately 4.16 million lb (1.89 million kg)) are less than the SSC 
recommended combined ACL of 4.60 million lb (2.09 million kg). 
Therefore, NMFS has developed this proposed emergency rule to reduce 
the red grouper commercial and recreational ACLs and ACTs consistent 
with a stock ACL of 4.16 million lb (1.89 million kg). This emergency 
rule would be effective for 180 days, although NMFS may extend the 
emergency rule's effectiveness for a maximum of an additional 186 days. 
This would allow for sufficient time for the Council and NMFS to 
develop and implement a new framework action to manage the red grouper 
stock for the 2020 fishing year and beyond.

Measures Contained in This Proposed Emergency Rule

    For red grouper, this emergency rule would revise the red grouper 
stock ACL to 4.16 million lb (1.89 million kg), which is equal to the 
combined red grouper commercial and recreational landings. Applying the 
commercial allocation of 76 percent to the stock ACL of 4.16 million lb 
(1.89 million kg) results in a proposed commercial ACL of 3.16 million 
lb (1.43 million kg). The commercial ACT would be set at 95 percent of 
the commercial ACL, or 3.00 million lb (1.36 million kg). This would be 
an approximate 60 percent reduction from the current commercial ACL and 
ACT.
    Because commercial red grouper is managed under an IFQ program, 
NMFS distributes IFQ allocation to the program shareholders on January 
1 of each year. After NMFS distributes the applicable commercial quota 
to shareholders, it cannot be recalled.

[[Page 7866]]

Therefore, in anticipation of this proposed emergency rule reducing the 
commercial quota, NMFS has withheld distribution of 59.4 percent, 
equivalent to 4.78 million lb (2.17 million kg) of red grouper IFQ 
allocation effective on January 1, 2019, through a temporary rule (83 
FR 64480, December 17, 2018). If the commercial quota reduction 
implemented through this proposed emergency rule is not effective by 
June 1, 2019, the withheld commercial quota will be redistributed to 
the shareholders.
    For the recreational sector, 24 percent of the 4.16 million lb 
(1.89 million kg) proposed total stock ACL results in a recreational 
ACL of 1.00 million lb (0.45 million kg). The recreational ACT would be 
set at 92 percent of the recreational ACL, or 0.92 million lb (0.42 
million kg).

Emergency Rule Criteria

    NMFS' Policy Guidelines for the Use of Emergency Rules (62 FR 
44421, August 21, 1997) list three criteria for determining whether an 
emergency exists, and this proposed emergency rule would be promulgated 
under these criteria. Specifically, NMFS' policy guidelines require 
that an emergency:
    (1) Result from recent, unforeseen events or recently discovered 
circumstances; and
    (2) Present serious conservation or management problems in the 
fishery; and
    (3) Can be addressed through emergency regulations for which the 
immediate benefits outweigh the value of advance notice, public 
comment, and deliberative consideration of the impacts on participants 
to the same extent as would be expected under the normal rulemaking 
process.
    NMFS has determined that reducing the red grouper 2019 commercial 
and recreational ACLs and ACTs for 2019 meets the three criteria 
required for an emergency rule. The new red grouper interim analysis 
developed by the SEFSC and subsequent SSC recommendation were presented 
to the Council at its October 2018 meeting and constitute recently 
discovered circumstances. In addition, public testimony at the October 
Council meeting expressed concern about the status of the red grouper 
stock, noting that red grouper appear to be scarcer in abundance than 
in previous years. The severe red tide event that occurred in summer 
and fall 2018 off the Florida west coast was also unforeseen and may 
have adversely affected the red grouper stock. Although the impacts of 
this recent red tide are unknown, the 2009 SEDAR 12 update assessment 
and 2015 SEDAR 42 assessment indicated that a similar 2005 red tide 
event depressed the red grouper spawning stock biomass. The SEDAR 61 
red grouper stock assessment is presently underway and NMFS expects to 
present the results to the Council's SSC in July 2019.
    Without this emergency rule, the red grouper ACLs and ACTs could 
not be effectively reduced for the 2019 fishing year. This could 
present a serious conservation problem if the red grouper stock is in 
decline, as the reduction in landings, public comment, and interim 
analysis may suggest.
    Based on the Council's request for an interim or emergency rule, in 
its December 17, 2018 temporary rule, NMFS withheld the IFQ allocation 
equal to this emergency rule's proposed reduction in the commercial ACT 
(quota) (83 FR 64480). This proposed emergency rule meets the third 
criteria for an emergency because it would reduce the commercial quota 
to be effective prior to June 1, 2019. This would provide the Council 
and NMFS sufficient time to develop and implement a framework action 
that will address the new information about the red grouper stock, 
including the SEDAR 61 assessment, for the 2020 fishing year and 
beyond. However, NMFS is proposing this emergency reduction because 
there is sufficient time to include a 15-day comment period and 
implement any final emergency rule by June 1, 2019.

Classification

    This action is issued pursuant to section 305(c) of the Magnuson-
Stevens Act, 16 U.S.C. 1855(c). The Assistant Administrator for 
Fisheries, NOAA (AA), has determined that this emergency rule is 
necessary to provide increased protection for the Gulf red grouper 
stock and is consistent with the Magnuson-Stevens Act and other 
applicable laws.
    This action is being taken pursuant to the emergency provision of 
Magnuson-Stevens Act and is exempt from review by the Office of 
Management and Budget.
    NMFS prepared an initial Regulatory Flexibility Analysis (IRFA) as 
required by section 603 of the Regulatory Flexibility Act (RFA), for 
this emergency rule. The IRFA describes the economic impact this rule, 
if adopted, would have on small entities. A description of the action, 
why it is being considered, 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 NMFS (see ADDRESSES). A summary of the IRFA follows.
    The Magnuson-Stevens Act provides the statutory basis for this 
proposed rule. No duplicative, overlapping, or conflicting Federal 
rules have been identified. A description of this proposed rule and its 
purpose and need are contained in the SUMMARY section of the preamble.
    This proposed rule would directly apply to recreational fishers 
(anglers) and commercial fishing businesses that harvest red grouper in 
Federal waters of the Gulf. Anglers are not considered small entities 
as that term is defined in 5 U.S.C. 601(6), whether fishing from for-
hire fishing, private, or leased vessels. Therefore, estimates of the 
number of anglers directly affected by the rule and the impacts on them 
are not provided here. For-hire fishing businesses that harvest red 
grouper in Federal waters would be indirectly affected if the rule were 
to cause changes in angler demand for their services. However, The RFA 
does not consider such indirect impacts on small entities.
    This proposed rule would directly affect commercial fishing 
businesses (NAICS code 11411) that harvest red grouper in Federal 
waters of the Gulf by decreasing the commercial quota for red grouper.
    An annual average of 376 vessels land red grouper and an estimated 
330 businesses own the vessels. All of these businesses operate in the 
commercial fishing industry (NAICS code 11411) and some also in related 
industries, such as fish and seafood merchant wholesalers (NAICS code 
424460) and fish and seafood (retail) markets (NAICS code 445220). All 
are expected to operate primarily in the commercial fishing industry.
    For RFA purposes, NMFS has established a small business size 
standard for businesses, including their affiliates, whose primary 
industry is commercial fishing (see 50 CFR 200.2). A business primarily 
involved in commercial fishing 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 its combined annual receipts 
are not in excess of $11 million (in 2017 dollars) for all of its 
affiliated operations worldwide. The average vessel that used bottom 
longline gear to harvest red grouper from 2013 through 2017 had average 
total annual revenue of $309,737 (in 2018 dollars), whereas the average 
total annual revenue for vessels that used other gear types to harvest 
red grouper were considerably lower. Additional examination of

[[Page 7867]]

annual revenues indicates the total annual revenue of each business to 
be less than $11 million. Consequently, all of the 330 businesses 
directly affected by the proposed action are identified as small.
    The commercial quota would be reduced from 7.78 million lb 
(3,528,949 kg) to 3.00 million lb (1.36 million kg). The commercial 
sector landed only 3.33 million lb (1.51 million kg) in 2017. However, 
an average of approximately 4.56 million lb (2.07 million kg) of red 
grouper were landed annually from 2013 through 2017, and that average 
is used as the baseline landings for the analysis below. As such, the 
330 small businesses would incur combined losses of red grouper 
landings that total approximately 1.56 million lb (0.71 million kg) and 
have an estimated dockside value of approximately $6.43 million (in 
2018 dollars) in 2019.
    The average loss per vessel is expected to vary by the gear used to 
harvest red grouper. The average longline vessel would incur the 
largest average loss of red grouper revenue ($86,857), followed in turn 
by the average bandit-gear vessel ($8,970), average hand hook-and-line 
vessel ($5,361) and average other-gear vessel ($3,079). These decreases 
in 2019 revenue from red grouper landings represent a 28.0 percent 
reduction in the average longline vessel's total revenue, a 7.3 percent 
reduction in the average bandit-gear vessel's total revenue, a 16.6 
percent reduction in the average hand hook-and-line vessel's total 
revenue, and a 15.2 percent reduction in the average other-gear 
vessel's total revenue.
    Two alternatives were considered, but not selected for red grouper 
commercial harvest limit revisions. The first alternative, the no 
action alternative, would maintain the current commercial quota. 
Although the no-action alternative would have no adverse economic 
impact in 2019, it would have the largest long-term costs to small 
businesses because it could allow for the largest decline of the status 
of the stock. The second non-selected alternative would reduce the 
commercial quota to 3.32 million lb (1.51 million kg), and have a 
smaller adverse economic impact than the selected alternative. However, 
this alternative could have smaller long-term benefits than the 
selected alternative because it may allow for less improvement of the 
stock's status.

List of Subjects in 50 CFR Part 622

    Annual catch limits, Fisheries, Fishing, Gulf of Mexico, Red 
grouper, Quotas.

    Dated: February 26, 2019.
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 OF MEXICO, 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.  622.39, suspend paragraph (a)(1)(iii)(C) and add paragraph 
(a)(1)(iii)(D) to read as follows:


Sec.  622.39  Quotas.

* * * * *
    (a) * * *
    (1) * * *
    (iii) * * *
    (D) Red grouper--3.00 million lb (1.36 million kg)
* * * * *
0
3. In Sec.  622.41, suspend paragraph (e) and add paragraph (r) to read 
as follows:


Sec.  622.41  Annual catch limits (ACLs), annual catch targets (ACTs), 
and accountability measures (AMs).

* * * * *
    (r) Red grouper--(1) Commercial sector. The IFQ program for 
groupers and tilefishes in the Gulf of Mexico serves as the 
accountability measure for commercial red grouper. The applicable 
commercial ACL for red grouper, in gutted weight, is 3.16 million lb 
(1.43 million kg).
    (2) Recreational sector. (i) Without regard to overfished status, 
if red grouper recreational landings, as estimated by the SRD, reach or 
are projected to reach the applicable ACL specified in paragraph 
(r)(2)(iv) 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 red grouper 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.
    (ii) Without regard to overfished status, and in addition to the 
measures specified in paragraph (r)(2)(i) of this section, if red 
grouper recreational landings, as estimated by the SRD, exceed the 
applicable ACL specified in paragraph (r)(2)(iv) 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 (r)(2)(iv) 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 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.
    (iii) 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 (r)(2)(iv) of this section, the following 
measures will apply. In addition to the measures specified in 
paragraphs (r)(2)(i) and (ii) 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 (r)(2)(ii) 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.
    (iv) The recreational ACL for red grouper, in gutted weight, is 
1.00 million lb (0.45 million kg). The recreational ACT for red 
grouper, in gutted weight, is 0.92 million lb (0.42 million kg).

[FR Doc. 2019-03829 Filed 3-4-19; 8:45 am]
 BILLING CODE 3510-22-P