[Federal Register Volume 87, Number 85 (Tuesday, May 3, 2022)]
[Proposed Rules]
[Pages 26178-26182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09389]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 220427-0107]
RIN 0648-BL22


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Catch Limits for Red Grouper

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 under the Fishery Management Plan for the Reef Fish 
Resources of the Gulf of Mexico (FMP) as prepared by the Gulf of Mexico 
Fishery Management Council (Council). If implemented, this proposed 
rule would increase commercial and recreational catch levels for red 
grouper in the Gulf of Mexico (Gulf). The purposes of this proposed 
rule are to prevent overfishing of red grouper and to achieve optimum 
yield (OY).

DATES: Written comments must be received by May 18, 2022.

ADDRESSES: You may submit comments on the proposed rule identified by 
``NOAA-NMFS-2022-0029'' by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov 
and enter ``NOAA-NMFS-2022-0029'' in the Search box. Click the 
``Comment'' icon, complete the required fields, and enter or attach 
your comments.
     Mail: Submit all written comments to Dan Luers, 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), 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 the required fields if you wish to remain anonymous.
    Electronic copies of the framework action may be obtained from the 
Southeast Regional Office website at https://www.fisheries.noaa.gov/action/modification-gulf-mexico-red-grouper-catch-limits. The framework 
action includes an environmental assessment, a fishery impact 
statement, a Regulatory Flexibility Act analysis, and a regulatory 
impact review.

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

SUPPLEMENTARY INFORMATION: NMFS and the Council manage the Gulf reef 
fish fishery, which includes red grouper, under the 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).

Background

    The Magnuson-Stevens Act requires NMFS and regional fishery 
management councils to prevent overfishing and achieve, on a continuing 
basis, the OY from federally managed fish stocks. These mandates are 
intended to ensure fishery resources are managed for the greatest 
overall benefit to the nation, particularly with respect to providing 
food production and recreational opportunities, and protecting marine 
ecosystems.
    All weights described in this proposed rule are in gutted weight.
    Red grouper in the Gulf exclusive economic zone are found primarily 
in offshore areas of the eastern Gulf with hard bottom, that is, bottom 
structure with relief that attracts fish. Red grouper is managed as a 
single stock with commercial and recreational annual catch limits 
(ACLs) and annual catch targets (ACTs). Since 2009, the stock ACL has 
been allocated 76 percent to the commercial sector and 24 percent to 
the recreational sector as set in Amendment 30B to the FMP (74 FR 
17603, April 16, 2009). However, on March 9, 2022, NMFS approved 
Amendment 53 to the FMP, which

[[Page 26179]]

modifies the allocation to 59.3 percent for the commercial sector and 
40.7 percent for the recreational sector. Amendment 53 also adjusts the 
red grouper catch level based on the results of a 2019 stock assessment 
(Southeast Data, Assessment, and Review (SEDAR) 61). NMFS published the 
proposed rule for Amendment 53 on January 19, 2022 (87 FR 2737), in the 
Federal Register and is developing the final rule.
    Commercial red grouper fishing is managed under the Grouper-
Tilefish Individual Fishing Quota (IFQ) program, which began January 1, 
2010, through Amendment 29 to the FMP (74 FR 44732, August 31, 2009, 
and 75 FR 9116, March 1, 2010). Under the IFQ program, the commercial 
red grouper quota is equal to the commercial ACT. The annual allocation 
of red grouper is distributed on January 1 of each year to those who 
hold red grouper shares.
    Recreational red grouper harvest is managed with catch limits, in-
season and post-season accountability measures (AMs), season and area 
closures, a minimum size limit, and recreational bag and possession 
limits. The in-season AM for red grouper requires NMFS to close the 
recreational sector for the remainder of the fishing year when red 
grouper landings reach or are projected to reach the recreational ACL. 
If recreational landings of red grouper exceed the recreational ACL in 
a fishing year, the post-season AM requires NMFS to shorten the length 
of the following recreational fishing season by the amount necessary to 
ensure landings do not exceed the recreational ACT. If the red grouper 
stock is overfished, NMFS must also reduce the ACL and ACT by the 
amount of the recreational ACL overage in the prior year.
    Subsequent to the management measures the Council recommended in 
Amendment 53, the Council and its advisory groups recommended further 
revisions to red grouper catch levels based on an interim analysis 
conducted by the NMFS Southeast Fishery Science Center (SEFSC).
    In May 2021, the Council's Scientific and Statistical Committee 
(SSC) reviewed the results of the interim analysis, which indicated 
Gulf red grouper harvest levels could be increased. However, this 
result was considered preliminary because the catch level projections 
were dependent on the sector allocations being evaluated in Amendment 
53. The Council requested an updated interim analysis based on the 
preferred allocation in Amendment 53 at its June 2021 meeting, which 
the SEFSC prepared. This interim analysis also applied a new 
methodology for adjusting recreational harvest weight estimates and 
used the NMFS Bottom Longline Survey as the index of abundance.
    The SSC reviewed the new interim analysis at its August 2021 
meeting and agreed with the changes made by the SEFSC. Based on the 
results of the interim analysis, the SSC recommended an OFL of 5.99 
million lb (2.72 million kg) and an ABC of 4.96 million lb (2.25 
million kg). The revised ABC is based on a 3-year moving average 
relative to the OFL. The SSC chose to use the 3-year moving average as 
opposed to a 5-year moving average because it was slightly more 
conservative and thought to be more representative of recent population 
trends, and because of uncertainty regarding the impacts of the 2021 
red tide event on the West Florida Shelf. Based on the SSC 
recommendations, the Council chose to update the catch limits and 
approved this framework action at its October 2021 meeting. The 
proposed OFL and ABC are greater than those specified in Amendment 53, 
which are an OFL of 4.66 million lb (2.11 million kg) and an ABC of 
4.26 million lb (1.93 million kg).

Management Measures Contained in This Proposed Rule

    This proposed rule would increase catch levels for Gulf red grouper 
relative to those established in Amendment 53. The catch levels in this 
proposed rule would be set consistent with the sector allocations 
established in Amendment 53. Therefore, the catch levels in this 
proposed rule would not be implemented until the final rule to 
implement Amendment 53 is published in the Federal Register and is 
effective.
    If implemented, this proposed rule would revise the ACLs and ACTs 
for the Gulf red grouper stock. This proposed rule would increase the 
total ACL for Gulf red grouper from 4.26 million lb (1.93 million kg) 
to 4.96 million lb (2.25 million kg).
    Using the sector allocations approved in Amendment 53, this 
proposed rule would increase the commercial ACL and ACT from 2.53 
million lb (1.15 million kg) and 2.40 million lb (1.09 million kg) to 
2.94 million lb (1.33 million kg) and 2.79 million lb (1.27 million 
kg), respectively.
    For the recreational sector, this proposed rule would increase the 
recreational ACL and ACT from 1.73 million lb (0.78 million kg) and 
1.57 million lb (0.71 million kg) to 2.02 million lb (0.92 million kg) 
and 1.84 million lb (0.83 million kg), respectively.

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 action, the FMP, 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 Magnuson-Stevens Act provides the legal basis for this proposed 
rule. No duplicative, overlapping, or conflicting Federal rules have 
been identified. The objectives of this proposed rule are to revise the 
ACLs and ACTs for Gulf red grouper consistent with the best scientific 
information available, and to continue to achieve OY consistent with 
the requirements of the Magnuson-Stevens Act.
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed rule, if adopted, will not have 
a significant economic impact on a substantial number of small 
entities. A description of the factual basis for this determination 
follows. All monetary estimates in the following analysis are in 2019 
dollars.
    This proposed rule would increase catch limits and catch targets 
for Gulf red grouper relative to those established in Amendment 53, 
consistent with the sector allocations established in Amendment 53. 
This proposed rule cannot be implemented before a final rule to 
implement Amendment 53 is published in the Federal Register and is 
effective. Amendment 53 set the OFL, ABC, total ACL, commercial ACL, 
recreational ACL, commercial ACT (quota) and recreational ACT for Gulf 
red grouper at the following values: 4.66 million lb (2.11 million kg), 
4.26 million lb (1.93 million kg), 4.26 million lb (1.93 million kg), 
2.53 million lb (1.15 million kg), 1.73 million lb (0.78 million kg), 
2.40 million lb (1.09 million kg), and 1.57 million lb (0.71 million 
kg), respectively. This proposed rule, if implemented, would increase 
those values to 5.99 million lb (2.72 million kg), 4.96 million lb 
(2.25 million kg), 4.96 million lb (2.25 million kg), 2.94 million lb 
(1.33 million kg), 2.02 million lb (0.92 million kg), 2.79 million lb 
(1.27 million kg), and 1.84 million lb (0.83 million kg), respectively. 
Thus, this proposed rule is expected to directly regulate commercial 
fishing businesses that possess Gulf red grouper shares in

[[Page 26180]]

the grouper-tilefish IFQ program and for-hire fishing businesses that 
target red grouper.
    The commercial red grouper quota is allocated annually based on the 
percentage of red grouper shares in each IFQ account (e.g., if an 
account possesses 1 percent of the red grouper shares and the 
commercial quota is 1 million lb (0.45 million kg), then that account 
would receive 10,000 lb (4,536 kg) of commercial red grouper quota). 
Although it is common for a single IFQ account with red grouper shares 
to be held by a single business, some businesses have multiple IFQ 
accounts with red grouper shares. As of February 19, 2020, 495 IFQ 
accounts held red grouper shares. These accounts and red grouper shares 
were owned by 436 businesses. Thus, NMFS assumes this proposed rule 
would directly regulate 436 commercial fishing businesses.
    A valid Federal charter vessel/headboat (for-hire) permit for Gulf 
reef fish is required to legally harvest red grouper in the Gulf from a 
for-hire vessel. NMFS does not possess complete ownership data 
regarding for-hire businesses that hold these permits, and thus 
potentially harvest red grouper. Therefore, it is not currently 
feasible to accurately determine affiliations between vessels and the 
businesses that own them. As a result, for purposes of this analysis, 
NMFS assumes each for-hire vessel is independently owned by a single 
business, which is expected to result in an overestimate of the actual 
number of for-hire fishing businesses directly regulated by this 
proposed rule.
    NMFS also does not have data indicating how many for-hire vessels 
actually harvest Gulf red grouper in a given year. However, in 2019, 
there were 1,277 vessels with valid Federal charter vessel/headboat 
permits for Gulf reef fish. Of these 1,277 vessels, 90 vessels are used 
primarily for commercial fishing purposes and thus are not considered 
for-hire fishing businesses in this analysis. Further, Gulf red grouper 
is only targeted and almost entirely harvested in waters off the west 
coast of Florida. Of the 1,277 vessels with valid Federal charter 
vessel/headboat permits for Gulf reef fish, 799 were homeported in 
Florida. Of these permitted vessels, 60 are primarily used for 
commercial fishing rather than for-hire fishing purposes and thus are 
not considered for-hire fishing businesses. In addition, 48 of these 
permitted vessels are considered headboats. Compared to charter 
vessels, headboats take a larger group of anglers to harvest a diverse 
range of species on a trip, and therefore do not typically target a 
particular species. Therefore, NMFS assumes that no headboats would be 
directly affected as a result of this proposed rule. However, charter 
vessels often target red grouper. Of the 799 vessels with valid Federal 
charter vessel/headboat permits for Gulf reef fish that are homeported 
in Florida, 691 vessels are charter vessels. A recent study reported 
that 76 percent of charter vessels with valid Federal charter vessel/
headboat permits for Gulf reef fish were active in the Gulf during 2017 
(i.e., 24 percent were not fishing). A charter vessel would only be 
directly affected by this proposed rule if it is fishing. Given this 
information, our best estimate of the number of charter vessels that 
are likely to harvest Gulf red grouper in a given year is 525, and thus 
this proposed rule is estimated to directly affect 525 for-hire fishing 
businesses.
    For RFA purposes, NMFS has established a small business size 
standard for businesses, including their affiliates, whose primary 
industry is commercial fishing (50 CFR 200.2). A business primarily 
involved in the commercial fishing industry 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 (revenue) are not in excess of $11 million for all of 
its affiliated operations worldwide.
    NMFS does not collect revenue data specific to commercial fishing 
businesses that have IFQ accounts; rather, revenue data are collected 
for commercial fishing vessels in general. It is not possible to assign 
revenues earned by commercial fishing vessels back to specific IFQ 
accounts and the businesses that possess them because quota is often 
transferred across many IFQ accounts before it is used by a vessel for 
harvesting purposes, and specific units of quota cannot be tracked. 
However, from 2014 through 2018, the maximum annual gross revenue 
earned by a single vessel was about $2.39 million, which occurred in 
2015. The average gross revenue per vessel was about $143,000 in that 
year. By 2018, the maximum and average gross revenue per vessel had 
decreased to about $1.04 million and $96,000, respectively. Based on 
this information, all commercial fishing businesses directly regulated 
by this proposed rule are determined to be small entities for the 
purpose of this analysis.
    For other industries, the SBA has established size standards for 
all major industry sectors in the U.S., including for-hire businesses 
(NAICS code 487210). A business primarily involved in for-hire 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 has annual receipts (revenue) not in excess of $8 
million for all its affiliated operations worldwide. The maximum annual 
gross revenue for a single headboat in the Gulf was about $1.38 million 
in 2017. On average, annual gross revenue for headboats in the Gulf is 
about three times greater than annual gross revenue for charter 
vessels, reflecting the fact that businesses that own charter vessels 
are typically smaller than businesses that own headboats. Based on this 
information, all for-hire fishing businesses directly regulated by this 
proposed rule are determined to be small businesses for the purpose of 
this analysis.
    If implemented, NMFS expects this proposed rule to directly 
regulate 436 of the 532 businesses with IFQ accounts, or approximately 
82 percent of those commercial fishing businesses. Further, NMFS 
expects this proposed rule to directly regulate 525 of the 1,187 for-
hire fishing businesses with valid Federal charter vessel/headboat 
permits in the Gulf reef fish fishery, or approximately 44 percent of 
those for-hire fishing businesses. NMFS has determined that, for the 
purpose of this analysis, all directly regulated commercial and for-
hire fishing businesses are small entities. Based on this information, 
NMFS expects the proposed rule to affect a substantial number of small 
entities.
    Because revenue and cost data are not collected for the commercial 
fishing businesses that are expected to be directly regulated by this 
proposed rule, direct estimates of their economic profits are not 
available. However, economic theory suggests that annual allocation 
(quota) prices should reflect expected annual economic profits, which 
allows economic profits to be estimated indirectly. Further, the 436 
commercial fishing businesses that own red grouper shares, and 
therefore receive red grouper quota at the beginning of each calendar 
year, also own shares and receive quota in the other IFQ share 
categories, i.e., red snapper, gag, shallow-water grouper, deep-water 
grouper, and tilefish. These businesses earn economic profits because 
of their ownership of these shares as well their red grouper shares.
    However, economic profits are only realized if the quota allocated 
to these businesses with shares is actually used for harvesting 
purposes (i.e., no economic profits will accrue unless the quota 
results in the production and sale of seafood). Because the average 
annual

[[Page 26181]]

commercial landings of red grouper from 2015-2019 exceeds the proposed 
red grouper commercial quota, NMFS assumes that all of the red grouper 
commercial quota will be harvested in the foreseeable future. 
Similarly, because practically all of the commercial red snapper quota 
has been used for harvesting in recent years, NMFS assumes that all of 
the commercial red snapper quota allocated to these businesses will be 
harvested in the foreseeable future. However, based on 2015-2019 data, 
NMFS expects that only 84 percent of the deep-water grouper commercial 
quota, 50 percent of the gag commercial quota, 35 percent of the 
shallow-water grouper commercial quota, and 78 percent of the tilefish 
commercial quota allocated to these businesses will be used for 
harvesting in the foreseeable future. Given these quota utilization 
rates in combination with average annual allocation prices in 2019 and 
annual commercial quotas in 2020 by share category, total annual 
economic profits for commercial fishing businesses with red grouper 
shares are estimated to be at least $18.61 million. This estimate does 
not account for any economic profits that may accrue to commercial 
fishing businesses that own red grouper shares from the harvest of non-
IFQ species. Such profits are likely to be small because harvest of IFQ 
species accounts for around 85 percent of commercial IFQ vessels' 
average annual gross revenue, and economic profits from the harvest of 
non-IFQ species tend to be much smaller than those from IFQ species. 
Given that there are 436 commercial fishing businesses that own red 
grouper shares, the average annual expected economic profit per 
commercial fishing business is at least $42,700.
    However, most of these economic profits (82 percent) are the result 
of owning red snapper shares. Only approximately $1.77 million (or 9.5 
percent) of the 436 commercial fishing businesses' economic profits are 
due to the ownership of red grouper shares. NMFS expects this proposed 
rule only to affect economic profits from the ownership of red grouper 
shares. Specifically, this rule proposes to increase the commercial red 
grouper ACT (quota) from 2.40 million lb (1.09 million kg) to 2.79 
million lb (1.27 million kg). Given an annual allocation price of $0.59 
per lb ($1.30 per kg) in 2019 for red grouper, the proposed increase in 
the commercial red grouper quota is expected to increase annual 
economic profits to these commercial fishing businesses by $223,610 or 
about $513 per business per year. Thus, annual economic profit is 
expected to increase by about 1.2 percent on average per commercial 
fishing business.
    Based on the most recent information available, average annual 
profit is $26,514 per charter vessel. The proposed rule would increase 
the recreational ACL for Gulf red grouper from 1.73 million lb (0.78 
million kg) to 2.02 million lb (0.92 million kg). NMFS expects the 
recreational ACL increase to increase the recreational season length by 
12 days by extending the season through the end of year. Without the 
ACL increase, NMFS projects that the season would end on December 19. 
NMFS expects the 12-day increase in season length to increase the 
number of trips targeting red grouper on charter vessels by 665 angler 
trips. Net Cash Flow per Angler Trip (CFpA) is the best available 
estimate of profit per angler trip by charter vessels. CFpA on charter 
vessels is estimated to be $141 per angler trip. Thus, the estimated 
increase in charter vessel profits from this proposed rule is expected 
to be $93,723, or $179 per charter vessel, if the recreational sector 
is managed to its ACL.
    The proposed rule would also increase the recreational ACT for Gulf 
red grouper from 1.57 million lb (0.71 million kg) to 1.84 million lb 
(0.83 million kg). The ACT is only germane if the recreational sector 
exceeds its ACL in the future, as that would trigger the post-season 
AM, causing the recreational sector to be constrained to the 
recreational ACT rather than the recreational ACL. Average annual 
landings in the recreational sector from 2016 through 2019 are slightly 
below the proposed recreational ACL. However, the recreational sector 
for Gulf red grouper closed on September 15 in 2021 (86 FR 51276, 
September 15, 2021). Therefore, it is possible that the post-season AM 
may be triggered in the future, causing the recreational sector, 
including the for-hire component, to be constrained to the ACT. If the 
post-season AM is triggered and the recreational sector is managed 
under the ACT, this proposed rule would increase the recreational 
season length by 45 days by extending the season through the end of the 
year. Without the ACT increase, NMFS projects that the season would end 
on November 16. NMFS expects the 45-day increase in the season length 
to increase the number of trips targeting red grouper on charter 
vessels by 2,352 angler trips. Thus, if the post-season AM is 
triggered, the estimated increase in charter vessel profits from this 
proposed rule would be $331,637 or $632 per charter vessel.
    Based on the information above, although a substantial number of 
small entities would be affected by this proposed rule, this proposed 
rule would not have a significant economic impact on those entities. 
Because this proposed rule, if implemented, would not have a 
significant economic impact on a substantial number of small entities, 
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, Red grouper, Reef fish.

(Authority: 16 U.S.C. 1801 et seq.)


     Dated: April 27, 2022.
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, revise paragraph (a)(1)(iii)(C) to read as follows:


Sec.  622.39  Quotas.

* * * * *
    (a) * * *
    (1) * * *
    (iii) * * *
    (C) Red grouper--2.79 million lb (1.27 million kg).
* * * * *
0
3. In Sec.  622.41, revise the last sentence of paragraph (e)(1) and 
revise paragraph (e)(2)(iv) to read as follows:

[[Page 26182]]

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

* * * * *
    (e) * * *
    (1) * * * The commercial ACL for red grouper in gutted weight is 
2.94 million lb (1.33 million kg).
    (2) * * *
    (iv) The recreational ACL for red grouper in gutted weight is 2.02 
million lb (0.92 million kg). The recreational ACT for red grouper in 
gutted weight is 1.84 million lb (0.83 million kg).
* * * * *

[FR Doc. 2022-09389 Filed 5-2-22; 8:45 am]
BILLING CODE 3510-22-P