[Federal Register Volume 86, Number 39 (Tuesday, March 2, 2021)]
[Proposed Rules]
[Pages 12163-12166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04178]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 210219-0026]
RIN 0648-BK01


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Framework Action

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to implement management measures described in a 
framework action to the Fishery Management Plan for the Reef Fish 
Resources of the Gulf of Mexico (Reef Fish FMP), as prepared and 
submitted by the Gulf of Mexico Fishery Management Council (Council). 
This proposed rule would prohibit certain fishing activities and, with 
one exception, the possession of Gulf of Mexico (Gulf) reef fish within 
the Madison-Swanson and Steamboat Lumps Marine Protected Areas (MPAs). 
The purpose of this proposed rule and the framework action is to 
protect spawning aggregations of mature reef fish species by reducing 
the potential for illegal fishing activities within these MPAs.

[[Page 12164]]


DATES: Written comments on the proposed rule must be received by April 
1, 2021.

ADDRESSES: You may submit comments on the proposed rule, identified by 
``NOAA-NMFS-2020-0142,'' by either of the following methods:
     Electronic submission: Submit all electronic comments via 
the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/docket/NOAA-NMFS-2020-0142, click the ``Comment Now!'' icon, complete 
the required fields, and enter or attach your comments.
     Mail: Submit all written comments to Rich Malinowski, 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 framework action may be obtained from 
www.regulations.gov or the Southeast Regional Office website at https://www.fisheries.noaa.gov/action/modification-fishing-access-eastern-gulf-mexico-marine-protected-areas. The framework action includes an 
environmental assessment, regulatory impact review, and Regulatory 
Flexibility Act (RFA) analysis.

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

SUPPLEMENTARY INFORMATION: NMFS and the Council manage the reef fish 
fishery under the Reef Fish FMP. The Reef Fish FMP was prepared by the 
Council and is implemented by NMFS through regulations at 50 CFR part 
622 under the authority of the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.).

Background

    The Madison-Swanson and Steamboat Lumps MPAs were established on 
June 19, 2000 (65 FR 31827, May 19, 2000). The two MPAs combined cover 
219 square nautical miles (nmi\2\) (751 square kilometers (km\2\)) near 
the 240-foot (73-meter) contour, also known as the 40-fathom contour, 
off northwest and west Florida. The area of Madison-Swanson is 115 
nmi\2\ (394 km\2\) and the area of Steamboat Lumps is 104 nmi\2\ (357 
km\2\). The distance between these MPAs is approximately 69 nmi (127 
km). The Council and NMFS created the MPAs to provide protection to 
spawning aggregations of gag, which is a species of grouper, and other 
reef fish. When the MPAs were implemented, all fishing inside the MPAs 
was prohibited, except for Atlantic highly migratory species (HMS) such 
as tunas, billfishes, and oceanic sharks, which are managed separately 
by NMFS' Atlantic HMS Management Division. Since 2004, surface trolling 
has been allowed for non-reef fish species in the MPAs from May 1 
through October 31 annually (69 FR 24532, May 4, 2004). In 2006, NMFS 
implemented complementary management measures to prohibit fishing for 
Atlantic HMS except by surface trolling from May 1 through October 31 
annually (71 FR 58058, October 2, 2006). In addition, the possession of 
Gulf reef fish while inside the MPAs is prohibited, except on a vessel 
in transit with fishing gear stowed as specified in Sec.  622.34(a)(4).
    At its October 2019 meeting, the Council's Reef Fish Advisory Panel 
(AP) discussed observations of illegal harvest of reef fish species 
under the appearance of trolling within the boundaries of the MPAs. 
Reef Fish AP members believed that the MPAs are not a legitimate 
trolling destination for non-reef fish species and that the illegal 
harvest of reef fish is occurring in these areas. Reef Fish AP members 
also acknowledged that it was possible to drift through the MPAs with 
fishing tackle weighted deep below the vessel to increase the 
probability of hooking a reef fish. At this meeting, an enforcement 
officer from the Florida Fish and Wildlife Conservation Commission 
noted that enforcement of the MPAs is challenging due to the remote 
locations.
    At its January 2020 meeting, the Council discussed the Reef Fish 
AP's recommendation to prohibit all fishing (other than for Atlantic 
HMS) in the MPAs year-round to reduce the potential for targeting reef 
fish while bottom fishing under the guise of trolling within the MPAs. 
The U.S. Coast Guard representative on the Council agreed that 
enforcement in the MPAs can be difficult due to the distance from port.
    In response to these concerns, the Council developed a framework 
action that would modify the restrictions on fishing in, and transiting 
through, the Madison-Swanson and Steamboat Lumps MPAs in the eastern 
Gulf. The framework action would prohibit all fishing, except for HMS, 
year-round in the Madison-Swanson and Steamboat Lumps MPAs, and 
prohibit the possession of Gulf reef fish year-round in these areas 
unless a vessel has a valid Federal commercial permit for Gulf reef 
fish, an operating satellite-based VMS, and is in transit with fishing 
gear appropriately stowed. The Council determined that eliminating 
surface trolling from May 1 through October 31, which would effectively 
close the MPAs to fishing year-round, would make it easier for law 
enforcement to detect whether a vessel was fishing within the MPAs and 
result in direct positive effects for mature spawning gag that are 
known to inhabit the MPAs, as well as other resident federally managed 
reef fish. The Council also determined that a prohibition on possession 
Gulf reef fish would aid law enforcement. However, in response to 
concerns raised by fishermen who hold Federal commercial reef fish 
permits, the Council made an exception to this prohibition for vessels 
issued these permits because those vessels are easily tracked through 
the required VMS.
    These prohibitions would not apply to Atlantic HMS. However, on 
July 20, 2020, the Council sent a letter that requested the NMFS 
Atlantic HMS Management Division consider developing compatible 
regulations for HMS to the proposed management measures in the 
framework action. Federal regulations currently applicable to Atlantic 
HMS in the MPAs are located at 50 CFR 635.

Management Measures Contained in This Proposed Rule

    This proposed rule would prohibit fishing year-round in the 
Madison-Swanson and Steamboat Lumps MPAs. Additionally, the possession 
of any Gulf reef fish would be prohibited year-round in the MPAs, with 
a limited exception.
    This proposed rule would revise current fishing restrictions in the 
MPAs. Currently, surface trolling is the only allowable fishing 
activity and is only permitted from May through October each year. 
Surface trolling is defined in Sec.  622.34(a)(5) as fishing with lines 
trailing behind a vessel which is in constant motion at speeds in 
excess of four knots (4.6 mph) with a visible wake, and the use of 
downriggers, wire lines, planers, or similar devices is not allowed. 
Federally managed species that may be targeted by surface trolling in 
the MPAs include the Gulf CMP species

[[Page 12165]]

king mackerel and Spanish mackerel, and HMS.
    This proposed rule would prohibit fishing year-round for all 
species except HMS. However, as stated earlier, NMFS may implement 
compatible regulations for HMS later, as requested by the Council.
    Currently, fishing vessels with Gulf reef fish on board may transit 
through the MPAs as long as all fishing gear is appropriately stowed. 
This provision allows transiting fishing vessels to proceed between 
destinations, without the need to reroute to avoid a specific area even 
if they are in possession of reef fish. For these MPAs, transit means 
non-stop progression through the area and fishing gear appropriately 
stowed is defined in 50 CFR 622.34(a)(4)(i) through (iv). This proposed 
rule would prohibit the possession of Gulf reef fish in the MPAs even 
when transiting unless the vessel was issued a valid Federal commercial 
permit for Gulf reef fish, which requires an operating satellite-based 
VMS. As with the current regulation, all fishing gear would need to be 
appropriately stowed.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the framework amendment, the FMP, the Magnuson-Stevens 
Act, and other applicable laws, 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 proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this certification is as follows. A copy of the 
full analysis is available from NMFS (see ADDRESSES).
    A description of the action, why it is being considered, and the 
objectives of and legal basis for this action are contained at the 
beginning of this SUPPLEMENTARY INFORMATION section and in the SUMMARY 
section of the preamble.
    The Magnuson-Stevens Act provides the statutory basis for this 
proposed rule. No duplicative, overlapping, or conflicting Federal 
rules have been identified. In addition, no new reporting or 
recordkeeping compliance requirements are introduced in this proposed 
rule.
    The proposed rule concerns recreational and commercial fishing 
within the Madison-Swanson and Steamboat Lumps MPAs within the Gulf 
exclusive economic zone (EEZ). Currently, the possession of Gulf reef 
fish in these MPAs is generally prohibited, and surface trolling is the 
only allowable fishing activity during May through October. As stated 
previously, this proposed rule does not affect Atlantic HMS. Therefore, 
the proposed rule directly affects both anglers (recreational fishers) 
and commercial fishing businesses that harvest non-reef fish species, 
such as king mackerel, Spanish mackerel, or cobia within the MPAs by 
surface trolling and both anglers, and charter vessels and headboats 
(for-hire) fishing businesses that operate vessels that transit through 
the MPAs with reef fish onboard. Because of the proximity of the MPAs 
to the west coast of Florida, NMFS expects that any entity that may 
surface troll for CMP species within the MPAs or operate a vessel that 
transits through the MPAs with reef fish onboard lands its catch in 
Florida.
    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, neither estimates of the number of anglers, 
nor the impacts on them are required or provided in this analysis.
    Any business that operates a commercial fishing vessel that 
harvests either king mackerel or Spanish mackerel in the Gulf EEZ must 
have a valid Federal permit for these Gulf CMP species issued to that 
vessel. From 2014 through 2018, an annual average of 2,081 vessels had 
Federal commercial permits for one or both of those CMP species, and 77 
(3.7 percent) of those permitted vessels used surface trolling to 
harvest the CMP species and land their catch in Florida. An estimated 
74 businesses operate the 77 vessels, and all of these businesses are 
expected to operate primarily in the commercial fishing industry (NAICS 
code 11411).
    No Federal permit is required for the commercial harvest and sale 
of Gulf cobia. However, from 2014 through 2018, an annual average of 5 
of the above 77 commercial fishing vessels reported harvesting Gulf 
cobia by surface trolling.
    For Regulatory Flexibility Act 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 (NAICS 
11411) 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 for all of its affiliated operations worldwide. The average 
annual revenue per vessel for the 77 vessels that harvest CMP species 
by surface trolling and land those fish in Florida is $14,707 (2018 
dollars). Therefore, the 74 commercial fishing businesses that operate 
the 77 vessels are classified as small.
    Any business that operates a for-hire fishing vessel that has reef 
fish onboard in the Gulf EEZ must have a valid Federal charter vessel/
headboat permit for Gulf reef fish. As of June 23, 2020, there were 770 
such permits held by entities residing in Florida. That figure is also 
consistent with the average annual number of Federal charter vessel/
headboat permits for Gulf reef fish held by entities residing in 
Florida from 2014 through 2018. The proposed rule would not directly 
affect for-hire vessels with both valid Federal charter vessel/headboat 
permits and commercial permits for Gulf reef fish, and approximately 24 
percent (183) of the for-hire vessels have both permits. Therefore, 587 
vessels with a Federal charter vessel/headboat permit for Gulf reef 
fish could be directly affected by the proposed rule. An estimated 411 
businesses operate these 587 vessels.
    A business in the for-hire fishing industry (NAICS code 487210) is 
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 that are no more than $8.0 million for all of 
its affiliated operations worldwide. The average charter vessel 
operating in the Gulf with a Federal reef fish permit is estimated to 
receive approximately $88,095 (2018 dollars) in gross revenue annually. 
The average headboat operating in the Gulf with a Federal reef fish 
permit is estimated to receive approximately $267,358 (2018 dollars) in 
gross revenue annually. From that, NMFS concludes that the above 411 
for-hire fishing businesses are classified as small.
    Currently, from May through October, surface trolling is allowed 
within the MPAs. The proposed rule would prohibit surface trolling 
within the MPAs year-round.
    Average annual dockside revenue from CMP species landed by 
federally permitted commercial vessels from May through October of 2014 
through 2018 accounted for 20 percent ($2,948 in 2018 dollars) of the 
annual dockside revenue from all landings by the average federally 
permitted vessel that used surface trolling and landed CMP species in 
Florida. If all May through October

[[Page 12166]]

landings of CMP species by these vessels were entirely of CMP species 
harvested from the MPAs, the average adverse economic impact of the 
proposed rule would be $2,948 annually per vessel for 77 CMP federally 
permitted vessels. However, that is highly unlikely. The MPAs are small 
and represent a relatively small percentage of the Gulf EEZ. Madison-
Swanson is 115 nmi\2\ (394 km\2\) and Steamboat Lumps is 104 nmi\2\ 
(357 km\2\). Moreover, the MPAs are considered as relatively poor 
destinations for successful surface trolling. Therefore, NMFS expects 
any adverse economic impact of a year-round surface trolling 
prohibition on the 74 small commercial fishing businesses to be 
minimal.
    Currently, possession of Gulf reef fish year-round or any other 
species of fish from November through April, including CMP species, is 
prohibited in the MPAs, except on a vessel in transit with fishing gear 
appropriately stowed. Under the proposed rule, the possession of any 
species of Gulf reef fish would be prohibited year-round in the MPAs, 
except for a vessel with a valid Federal commercial Gulf reef fish 
permit, which is required to have an operating satellite-based VMS, 
that is in transit with fishing gear stowed.
    Under the proposed rule, the 411 small businesses that operate the 
587 for-hire fishing vessels that have a for-hire reef fish permit, but 
do not have a Gulf commercial reef fish permit, would no longer be able 
to transit through the MPAs with reef fish onboard. It is unknown how 
many, if any, of the 587 for-hire vessels transit through the MPAs with 
reef fish onboard. However, because of the relatively small size of the 
MPAs and the distance between them, NMFS expects that any of those 
vessels could relatively easily avoid transiting through the MPAs if 
they have reef fish on board and any additional cost to transit around 
the MPAs would be minimal.
    From the above, NMFS expects any impacts from the proposed rule on 
small businesses in the commercial fishing and for-hire fishing 
industries to be minimal. Therefore, NMFS concludes that this proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. As a result, an initial regulatory 
flexibility analysis is not required and none has been prepared.
    This proposed rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Gulf of Mexico, Marine protected area, Reef 
fish.

    Dated: February 22, 2021.
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. Amend Sec.  622.34 by:
0
a. Revising paragraph (a) introductory text and paragraphs (a)(2) and 
(3), and
0
b. Removing paragraphs (a)(5) and (6).
    The revisions read as follows:


Sec.  622.34  Seasonal and area closures designed to protect Gulf reef 
fish.

    (a) Closure provisions applicable to the Madison and Swanson sites, 
Steamboat Lumps, and the Edges. For the purpose of this paragraph (a), 
fish means finfish, mollusks, crustaceans, and all other forms of 
marine animal and plant life other than marine mammals and birds. The 
provisions of this paragraph (a) do not apply to Atlantic highly 
migratory species, such as tunas, billfishes, and oceanic sharks. See 
50 CFR part 635 for any provisions applicable to fishing for or 
possession of Atlantic highly migratory species in these areas.
* * * * *
    (2) Within the Madison and Swanson sites and Steamboat Lumps: 
Fishing is prohibited year-round; possession of Gulf reef fish is 
prohibited year-round except when such possession is on a vessel that 
has been issued a valid Federal commercial permit for Gulf reef fish, 
has an operating satellite-based VMS unit, and is in transit with 
fishing gear stowed as specified in paragraph (a)(4) of this section; 
and possession of any non-Gulf reef fish species is prohibited year-
round, except for such possession on a vessel in transit with fishing 
gear stowed as specified in paragraph (a)(4) of this section.
    (3) Within the Edges during January through April each year, all 
fishing is prohibited and the possession of any fish species is 
prohibited, except for such possession on a vessel in transit with 
fishing gear appropriately stowed as specified in paragraph (a)(4) of 
this section.
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[FR Doc. 2021-04178 Filed 3-1-21; 8:45 am]
BILLING CODE 3510-22-P