[Federal Register Volume 84, Number 96 (Friday, May 17, 2019)]
[Rules and Regulations]
[Pages 22389-22392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10322]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 190213109-9385-02]
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: Final temporary rule; emergency action.
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SUMMARY: NMFS issues an emergency rule as requested by the Gulf of
Mexico Fishery Management Council (Council) to address concerns that
the Gulf of Mexico (Gulf) red grouper stock may be in decline. This
emergency rule reduces the commercial and recreational annual catch
limits (ACLs) and annual catch targets (ACTs). This emergency rule is
effective for 180 days, although NMFS may extend this emergency rule's
effectiveness for a maximum of an additional 186 days. The intended
effect of this emergency rule is to provide a temporary reduction in
Gulf red grouper harvest levels to protect the stock from overharvest
while the Council develops a framework action to reduce the red grouper
catch limits on a more long-term basis.
DATES: This final temporary rule is effective on May 17, 2019, through
November 13, 2019.
ADDRESSES: Electronic copies of the documents in support of this
emergency rule, which include an environmental assessment (EA), may be
obtained from the Southeast 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)).
On March 5, 2019, NMFS published a proposed temporary rule for
emergency action in the Federal Register and requested public comment
(84 FR 7864). The proposed emergency rule and the EA outline the
rationale for the actions contained in this final emergency rule. A
summary of the management measures described in the EA and implemented
through this emergency rule is provided below.
All weights in this emergency rule are in gutted weight. The
current red grouper commercial and recreational ACLs and ACTs 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).
Currently, the red grouper stock is not considered to be overfished
or undergoing overfishing. However, recent information suggests the
condition of the red grouper stock has declined. Information supporting
this conclusion includes reduced commercial and recreational landings,
an interim analysis of the stock, testimony from fishermen at Council
meetings, and recent red tide events in the eastern Gulf. These factors
caused the Council to request emergency action to reduce the red
grouper ACLs and ACTs while it considers a longer-term reduction
through a framework action to the FMP. The Council requested that NMFS
reduce the Gulf red grouper stock ACL for the 2019 fishing year to 4.60
million lb (2.09 million kg), as recommended by the Council's
Scientific and Statiscal Committee (SSC), or the 2017 total red grouper
landings, whichever is less.
The 2017 combined red grouper commercial and recreational landings
(approximately 4.16 million lb (1.89 million kg)) are less than the
SSC's recommendation. Therefore, NMFS implements this final 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 is effective for 180 days, although NMFS may extend
the emergency rule's
[[Page 22390]]
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 Final Emergency Rule
For red grouper, this emergency rule revises the red grouper stock
ACL to 4.16 million lb (1.89 million kg). Applying the commercial
allocation of 76 percent to the stock ACL of 4.16 million lb (1.89
million kg) results in a commercial ACL of 3.16 million lb (1.43
million kg). The commercial ACT is set at 95 percent of the commercial
ACL, or 3.00 million lb (1.36 million kg).
Because commercial red grouper is managed under an individual
fishing quota (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.
Therefore, in anticipation of this final emergency rule reducing the
commercial quota, NMFS withheld distribution of 59.4 percent,
equivalent to 4.78 million lb (2.17 million kg) of red grouper IFQ
allocation through a temporary rule effective on January 1, 2019 (83 FR
64480, December 17, 2018). If the commercial quota reduction
implemented through this final 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) revised total stock ACL results in a recreational ACL
of 1.00 million lb (0.45 million kg). The recreational ACT is 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 final emergency rule is 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 NMFS Southeast Fisheries Science Center (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 Southeast Data Assessment and Review (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 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 reduction in the commercial ACT
(quota)(83 FR 64480). This final 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 protection to
the red grouper stock while the Council and NMFS develop and implement
a framework action that will address the new information about the
stock, including the SEDAR 61 assessment, for the 2020 fishing year and
beyond.
Comments and Responses
NMFS received 17 comments on the proposed temporary rule for
emergency action. The majority of the comments supported the action.
Some comments supporting the action also contained suggestions for
additional management measures that are outside the scope of the
Council's request for interim or emergency action such as seasonal
closures, reduced recreational bag limits, and state management of the
red grouper recreational sector. No changes to this final rule were
made as a result of public comment. Comments that were specific to the
proposed temporary rule for emergency action are summarized and
responded to below.
Comment 1: The emergency action is not of a long enough duration to
provide sufficient protection to the red grouper stock.
Response: NMFS agrees that long-term measures may be needed to
protect Gulf red grouper stock. The Council requested emergency action
to address concerns regarding the Gulf red grouper stock and reduce the
catch levels for 2019. The Council developed more long-term measures
through a framework action that would continue the ACL and ACT
reductions contained in this emergency rule in 2020 and beyond. The
Council approved this framework action at its April 2019 meeting. NMFS
will evaluate the framework action for consistency with the FMP,
Magnuson-Stevens Act, and other applicable law, and will publish a
proposed rule if appropriate.
Comment 2: The red grouper stock is healthy and so neither the
commercial nor recreational catch levels need to be reduced.
Response: NMFS disagrees. Several factors support this emergency
action. At their October 2018 meeting, the Council received a
recommendation from its SSC to reduce the red grouper commercial and
recreational ACLs and ACTs beginning in the 2019 fishing year. This
recommendation was based on a NMFS SEFSC analysis that suggested the
Gulf red snapper stock may be in decline. In addition, fishermen
expressed concern about the condition of the red grouper stock because
recent harvests have been well below the current catch levels. Finally,
the Council noted the severe red tide conditions that occurred in the
summer and fall of 2018 off the Florida west coast. The red grouper
stock has been shown to be adversely affected by past red tide events
similar to the event that occurred in 2018. Therefore, the Council
concluded, and NMFS agrees, that this action should be taken to reduce
the red grouper catch levels for 2019.
Comment 3: NMFS should not reduce catch levels through this
emergency rule. If the red grouper stock cannot support a two-fish
daily recreational bag limit, then NMFS should close commercial fishing
for red grouper.
[[Page 22391]]
Response: A complete closure of the commercial sector is beyond the
scope of the action requested by the Council and implemented through
this emergency rule. The commercial sector is managed under an IFQ
program, which allows for the harvest of red grouper as long as IFQ
participants have allocation available. However, NMFS notes that the
catch levels established through this rule are equal to 2017 harvest
levels and recreational red grouper fishing did not close in 2017.
Therefore, NMFS expects the recreational season to remain open
throughout 2019 under the current 2-fish red grouper recreational bag
limit.
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 published the proposed temporary emergency rule on March 5,
2019 (84 FR 7864), and prepared an Initial Regulatory Flexibility
Analysis (IRFA) to accompany the proposed action. The IRFA concluded
that the action would have a significant adverse impact on the average
annual 330 small commercial fishing businesses and their combined 376
federally permitted fishing vessels that harvest red grouper from the
Gulf. The comment period for the proposed rulemaking closed on March
20, 2019.
A final regulatory flexibility analysis (FRFA) parallels the IRFA
and must also include a summary of significant issues raised by public
comments in response to the IRFA, any changes in the action in response
to those comments or new information, a description of the steps the
agency took to minimize the adverse economic impact on small entities,
and why it selected the alternative adopted.
No comments were received on the IRFA or on the economic impacts of
the rule on small entities more generally. NMFS has not received any
new information that would affect its previous determination. As a
result, the estimates and conclusions of the IRFA have not changed.
This rule will reduce the red grouper quota in 2019 to 3.00 million
lb (1.36 million kg). NMFS considered two other alternatives to the
rule: either no change in the quota or a reduction to 3.32 million lb
(1.51 million kg). The no-action alternative has no short-term impacts
on small businesses, but was not selected because it allows for
declining status of the stock. The second non-selected alternative has
smaller short-term costs than the selected alternative, but it may not
provide for sufficient protection of the stock.
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as small entity compliance
guides. As part of the rulemaking process, NMFS prepared a fishery
bulletin, which also serves as a small entity compliance guide. The
fishery bulletin will be sent to all interested parties.
This final emergency rule responds to the best scientific
information available. The AA finds that the need to immediately
implement this action constitutes good cause to waive the 30-day delay
in this final emergency rule's effectiveness, pursuant to the authority
set forth in 5 U.S.C. 553(d)(3), as such procedure for this final
emergency rule would be contrary to the public interest.
Delaying the effectiveness of this emergency rule for 30 days would
be contrary to the public interest because of the need to implement
this action before June 1, 2019, in order to protect the red grouper
stock. If the reduction in the ACL is not effective by June 1,
additional allocation will be released to the current red grouper
shareholders. Once released, the allocation cannot be recalled, and the
reduction in the catch levels cannot be implemented for 2019.
Accordingly, the 30-day delay in effectiveness of the measures
contained in this emergency rule is waived.
List of Subjects in 50 CFR Part 622
Annual catch limits, Fisheries, Fishing, Gulf of Mexico, Red
grouper, Quotas.
Dated: May 14, 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 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
[[Page 22392]]
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. 2019-10322 Filed 5-16-19; 8:45 am]
BILLING CODE 3510-22-P