[Federal Register Volume 87, Number 141 (Monday, July 25, 2022)]
[Rules and Regulations]
[Pages 44027-44031]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15862]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 220720-0159]
RIN 0648-BL63


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Greater Amberjack Management 
Measures

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

ACTION: Final temporary rule; emergency action; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS issues this final temporary rule to promulgate emergency 
measures, due to recently discovered circumstances that present serious 
conservation issues for the greater amberjack stock in the Gulf of 
Mexico (Gulf). As requested by the Gulf of Mexico Fishery Management 
Council (Council), NMFS issues this final temporary rule to reduce 
overfishing, conserve the resource of greater amberjack in the Gulf, 
and reduce the likelihood of adverse socio-economic impacts that would 
occur if additional reductions in harvest were required to rebuild the 
stock. This final temporary rule modifies the greater amberjack 
recreational fixed closed season for the 2022-2023 fishing year in the 
Gulf exclusive economic zone (EEZ) to be August 1-31, 2022, and 
November 1, 2022-July 31, 2023 (open September 1, 2022-October 31, 
2022). The final temporary rule will be effective for 180 days unless 
superseded by subsequent rulemaking; however, the rule's effectiveness 
may be extended for an additional 186 days, pursuant to provisions in 
the Magnuson-Stevens Act. The purpose of this emergency action for Gulf 
greater amberjack is to protect the greater amberjack resources by 
reducing the likelihood of overfishing and helping ensure that the 
greater amberjack stock rebuilds within the current rebuilding time, as 
well as to reduce the severity of any post-season recreational 
accountability measure overage adjustment as a result of the 
recreational annual catch limit (ACL) being exceeded.

DATES: This final temporary rule is effective July 25, 2022, through 
January 23, 2023. Comments on the final temporary rule may be submitted 
through August 24, 2022.

[[Page 44028]]


ADDRESSES: You may submit comments on this document, identified by 
Federal Docket Management System (FDMS) Docket Number NOAA-NMFS-2022-
0070, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2022-0070 in the Search box. 
Click on the ``Comment'' icon, complete the required fields, and enter 
or attach your comments.
     Mail: Submit written comments to Kelli O'Donnell, 
Southeast Regional Office, NMFS, 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 the required fields if you wish to remain 
anonymous).
    Comments received through means not specified in this rule will not 
be considered.

FOR FURTHER INFORMATION CONTACT: Kelli O'Donnell, telephone: 727-824-
5305 or email: [email protected].

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf is managed 
under the Fishery Management Plan for the Reef Fish Resources of the 
Gulf of Mexico (FMP). The FMP was prepared by the Council and is 
implemented through regulations at 50 CFR part 622 under the authority 
of the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act). 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

    The Magnuson-Stevens Act requires NMFS and regional fishery 
management councils to prevent overfishing and achieve, on a continuing 
basis, the optimum yield (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. To further this goal, the Magnuson-
Stevens Act requires fishery managers to end overfishing and rebuild 
overfished stocks. At its June 2022 meeting, in accordance with Section 
305(c)(3) of the Magnuson-Stevens Act, the Council requested NMFS 
promulgate an emergency rule to protect the greater amberjack resource, 
due to recently discovered circumstances which present serious 
conservation issues to the stock.
    All weights provided in this final temporary rule, unless otherwise 
noted, are given in round weight.

Historical Status of the Greater Amberjack Stock

    The first stock assessment for Gulf greater amberjack was completed 
in 2000 (Stock assessment of Gulf of Mexico greater amberjack using 
data through 1998. Turner, S.C., N.J. Cummings, and C.P. Porch. 2000. 
NOAA, NMFS, SEFSC. http://sedarweb.org/docs/suar/SEDAR%202010%20GAJ%20Stock%20Assessment%20Update%20Including%20Appendices%20I-III.pdf). That assessment showed that as of 1998, the greater 
amberjack stock was overfished and undergoing overfishing. Secretarial 
Amendment 2 established a rebuilding plan for greater amberjack that 
was expected to rebuild the stock within 7 years (by the end of 2009) 
(68 FR 39898, July 3, 2003). In 2006, Southeast Data, Assessment, and 
Review (SEDAR) 9 was completed and showed the greater amberjack stock 
was not recovering as previously projected in Secretarial Amendment 2. 
Instead, the stock continued to be overfished and was experiencing 
overfishing. The Council subsequently developed Amendment 30A to the 
FMP and set sector catch limits and accountability measures (AMs) to 
end overfishing and rebuild the stock by 2010 (73 FR 16830, March 31, 
2008), which was consistent with the time frame of the original 
rebuilding plan implemented with Secretarial Amendment 2. In 2010, 
SEDAR 9 Update was completed, and it again showed the stock was 
overfished and was experiencing overfishing. The Council then developed 
Amendment 35 to the FMP, which set sector annual catch targets (ACTs), 
and again reduced the overfishing limit (OFL), acceptable biological 
catch (ABC), and sector ACLs to end overfishing and rebuild the stock 
(77 FR 67574, November 13, 2012). In March 2014, the SEDAR 33 benchmark 
stock assessment showed that greater amberjack had remained overfished 
and was experiencing overfishing (as of 2012) and did not meet the 
rebuilding timeline set by Secretarial Amendment 2. The Council then 
developed a framework action to the FMP to reduce the ACLs for the 
purpose of ending overfishing, and set a new rebuilding deadline of 
2019 (80 FR 75432, December 2, 2015).
    In 2016, the SEDAR 33 Update assessment was completed, and showed 
that the stock was still undergoing overfishing and was overfished and 
would not be rebuilt by 2019. In response to SEDAR 33 Update, in 2017, 
the Council approved two other framework actions to the FMP: the first 
reduced the OFL, ABC, and sector-specific ACLs and ACTs to end 
overfishing and set a new rebuilding plan with completion time of 2027 
(82 FR 61485, December 27, 2017); while the second modified the 
recreational fishing year and fixed closed season (83 FR 134268, March 
29, 2018).

Current Status of Greater Amberjack Stock

    In October 2020, SEDAR 70 was completed and showed that the greater 
amberjack stock has been overfished and has been undergoing overfishing 
almost continuously since 1980. NMFS informed the Council of these 
determinations in a letter dated April 7, 2021. The Magnuson-Stevens 
Act specifies that measures to end overfishing and rebuild the stock 
must be implemented within 2 years of such notification; in this case, 
no later than April 7, 2023.
    The Council's Scientific and Statistical Committee (SSC) reviewed 
the SEDAR 70 results at its January 2021 meeting, accepted the 
assessment as the best scientific information available, and agreed 
that greater amberjack was still overfished and undergoing overfishing. 
The SSC provided recommendations for a reduced OFL and ABC so that the 
stock could rebuild by 2027, the current target rebuilding time. The 
Council discussed the SSC's recommendations at its January 2021 meeting 
and instructed staff to begin work on an FMP amendment (Amendment 54) 
to update the rebuilding plan for greater amberjack. The Council also 
discussed the implications of incorporating into SEDAR 70 the updated 
historical recreational landings estimates that are calibrated to the 
Marine Recreational Information Program (MRIP) Fishing Effort Survey 
(FES).
    The use of MRIP-FES data in SEDAR 70 had two primary effects on the 
results of the assessment and subsequent management actions. First, the 
MRIP-FES estimates of historical recreational effort and catch are 
substantially greater than previous

[[Page 44029]]

assessments. The use of MRIP-FES recreational data leads to higher 
estimates of historical removals for this stock. Second, the proportion 
of landings from the recreational sector is higher than previously 
thought when the allocation of the total allowable harvest between the 
commercial and recreational sectors was established in Amendment 30A 
(GMFMC 2008). Therefore, the Council requested that the SSC provide 
catch level recommendations for various allocation alternatives.
    In preparing the requested catch level projections for SSC review, 
the Southeast Fishery Science Center (SEFSC) updated its projection 
methodology. The SEFSC also updated the recruitment estimates and 
biomass targets that were used to inform the original results presented 
at the January 2021 meeting. This information was presented to the SSC 
in September 2021. The SSC determined that the updates were appropriate 
and requested the sector allocation specific projections be presented 
at its November 2021 meeting. The SEFSC provided updated projections 
and the SSC affirmed its prior determination that greater amberjack is 
overfished and experiencing overfishing, and recommended new rebuilding 
catch limits. The Council reviewed an overview of this new information 
in January 2022 and more detailed alternative catch level projections 
in April 2022.
    In April 2022, it became clear that because the recreational 
fishing year occurs over 2 calendar years and the reduced catch levels 
would not be implemented until the later part of the fishing year, more 
immediate action might be necessary to constrain recreational harvest 
while the Council works to finalize the new catch limits. Therefore, in 
June 2022, the Council reviewed options to modify the recreational 
fixed closed season to help constrain harvest to the reduced catch 
levels under consideration in Amendment 54.
    The Council is considering management measures in Amendment 54 that 
would reduce catch limits consistent with the SSC's recommendation. 
However, because of the time needed for the Council to complete 
development of the amendment and for NMFS to implement the subsequent 
rulemaking, these measures will not likely be implemented until the 
spring of 2023. That projected implementation date for Amendment 54 
will not align with the start of the 2022-2023 recreational fishing 
year, which runs August 1, 2022, through July 31, 2023. However, 
landings that occur during this time will be compared to the reduced 
2023 ACL. Therefore, at its June 2022 meeting, the Council decided to 
request emergency action for the 2022-2023 greater amberjack 
recreational fishing year to reduce the likelihood of substantial 
recreational overharvest. NMFS received the Council request in a letter 
dated July 5, 2022. The Council did not include in its request any 
action related to the commercial sector because NMFS projected that the 
harvest by the commercial sector would not exceed any of the reduced 
commercial ACL or ACT alternatives under consideration in Amendment 54 
prior to implementation of the amendment.
    The current recreational AMs for greater amberjack were implemented 
through Amendment 30A to the FMP in 2008 (73 FR 16830, March 31, 2008). 
The AMs specify that if the recreational ACT is reached or is projected 
to be reached, greater amberjack fishing will be closed to the 
recreational sector for the remainder of the fishing year. In addition, 
if the ACL is exceeded, NMFS will reduce the recreational ACL and the 
recreational ACT by the amount of the recreational ACL overage in the 
prior fishing year.
    Currently, recreational harvest of greater amberjack is closed from 
November through April and June through July. This means that harvest 
is permitted during the months of August through October, and the month 
of May. The fixed closed season, which was implemented through a 
framework action to the FMP in 2018 (83 FR 14202, April 3, 2018), is in 
place during peak spawning in the majority of the Gulf (March and 
April) and allows for both a fall and spring recreational season. The 
Council requested that NMFS modify the fixed closed season for the 
2022-2023 fishing year by allowing harvest only during the months of 
September and October.
    The current recreational ACL is 1,309,620 lb (594,034 kg) and the 
current recreational ACT is 1,086,985 lb (493,048 kg). Under the 
alternatives the Council is considering in Amendment 54, if the current 
recreational sector allocation of 73 percent and the current buffer 
between the ACL and ACT of 17 percent are retained, the reduced 2022-
2023 recreational ACL and ACT would be 473,770 lb (214,899 kg) and 
315,674 lb (143,187 kg), respectively, for the 2022-2023 fishing year. 
The current catch limits are not directly comparable to the catch 
limits that the Council is considering in Amendment 54 because those 
proposed catch limits are based on an assessment that incorporated 
MRIP-FES data. As explained above, MRIP-FES estimates more recreational 
harvest than previously thought. Thus, had MRIP-FES estimates been 
available when the current catch limits were put into place, the 
current recreational ACL and ACT would have been greater.
    NMFS projects that the reduced ACT would be met by August 23, 2022. 
However, NMFS cannot close the recreational sector based on an ACT that 
has not been implemented. If the current fixed closed season was to 
remain in effect, NMFS projects that recreational harvest would exceed 
the reduced recreational ACL by approximately 948,708 lb (430,327 kg). 
If this were to occur, the recreational sector would be required to pay 
back the overage during the 2023-2024 fishing year, which would result 
in a complete closure. In addition, approximately 400,000 lb (181,437 
kg) of the projected overage would not be paid back because NMFS does 
not have the authority to carry the overage adjustment forward to a 
second year. This could have serious conservation impacts including 
failure to meet the greater amberjack stock's rebuilding timeline of 
2027, which could result in the need to further reduce catch levels and 
also could result in negative socio-economic effects in the long-term.

Council Emergency Action Request

    In June 2022, the Council requested that NMFS implement an 
emergency rule that modifies the recreational fixed closed season for 
greater amberjack from November through April and June through July, to 
August 1 through August 31 and November through July. This would allow 
harvest to occur in September and October of 2022, and NMFS projects 
this harvest would not exceed the reduced 2022-2023 recreational ACL. 
However, a shift in fishing effort could occur, which makes the 
projections uncertain.
    Although the action in this final temporary rule would likely have 
adverse socio-economic effects beginning in the 2022-2023 fishing year, 
the Council and NMFS have determined that the short-term socio-economic 
effects are outweighed by the need to minimize additional long-term 
reductions in harvest and resulting long-term adverse socio-economic 
effects, which may otherwise occur. If the projected recreational ACL 
overage occurs under the current recreational fixed closed season, the 
Council and NMFS expect it to reduce the biomass of the greater 
amberjack stock, which could prevent rebuilding of the stock by 2027.

[[Page 44030]]

Criteria and Justification for Emergency Action

    NMFS' Policy Guidelines for the Use of Emergency Rules (62 FR 
44421; August 21, 1997) list three criteria for determining whether an 
emergency exists. 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 issues this emergency rule in 
compliance with these guidelines to prevent serious conservation issues 
to the stock that would increase the probability of not meeting the 
rebuilding timeline of 2027.
    With respect to the first criterion, the recently discovered 
circumstances include the new stock assessment (SEDAR 70) results that 
indicate the greater amberjack stock in the Gulf continues to 
experience overfishing and is not making adequate progress towards 
rebuilding, the SSC catch level recommendations presented to the 
Council in January 2022, and the analyses presented to the Gulf Council 
in April and June 2022, that indicate that harvest by the recreational 
sector during the 2022-2023 fishing year is expected to significantly 
exceed the reduced recreational ACLs that the Council is considering in 
Amendment 54.
    The second criterion, which requires a present serious conservation 
or management problem in the fishery, is satisfied because the measures 
in this emergency rule are necessary to avoid a significant overage of 
the recreational ACL, which would likely require NMFS to close 
recreational harvest for the entire 2023-2024 recreational fishing year 
and negatively affect the current rebuilding timeline. If this 
emergency rule is not implemented, the greater amberjack stock may not 
rebuild as projected.
    To address the third criterion, NMFS has determined that the 
immediate benefit of implementing the emergency rule outweighs the 
value of advance notice, public comment, and deliberative consideration 
of the impacts to the same extent as would be expected under the normal 
rulemaking process. Continued harvest at levels similar to the last 3 
years' average landings would negatively affect the health of the 
greater amberjack stock and likely require greater long-term reductions 
in harvest. The 2022-2023 recreational fishing year begins on August 1, 
2022. By foregoing the normal rulemaking process, this emergency rule 
will minimize adverse biological effects on the stock and minimize 
long-term adverse socio-economic effects to fishermen and fishing 
communities that utilize the greater amberjack resource.

Emergency Measures

    This final temporary rule would modify the greater amberjack 
recreational fixed closed season to be August 1-31 and November 1-July 
31 (open September 1-October 31) for the 2022-2023 fishing year in the 
Gulf EEZ. The fixed closed season will be effective for 180 days after 
publication in the Federal Register, as authorized by section 305(c) of 
the Magnuson-Stevens Act. This temporary final rule for emergency 
action could be extended for an additional 186 days, once the public 
has had an opportunity to comment on the rule. If the emergency action 
were to be extended, NMFS would respond to any public comments received 
on this final temporary rule in the extension temporary rule in the 
Federal Register. The Council and NMFS will continue to develop more 
permanent measures to reduce overfishing of greater amberjack through 
Amendment 54 to the FMP.

Classification

    This action is issued pursuant to section 305(c) of the Magnuson-
Stevens Act, 16 U.S.C. 1855(c). The Assistant Administrator (AA) for 
Fisheries, NOAA has determined that this emergency action is consistent 
with the Magnuson-Stevens Act, the Reef Fish FMP, and other applicable 
law. This action is being taken pursuant to the emergency provisions of 
the Magnuson-Stevens Act and is exempt from Office of Management and 
Budget review.
    The AA finds good cause to waive the requirements to provide prior 
notice and opportunity for public comment pursuant to the authority set 
forth in 5 U.S.C. 553(b)(B). Providing prior notice and opportunity for 
public comment on this action would be contrary to the public interest. 
The greater amberjack stock in the Gulf was assessed through SEDAR 70 
in 2020. The assessment indicates that the stock continues to undergo 
overfishing and is not making adequate progress towards rebuilding. The 
Council's SSC made final catch level recommendations in November 2021, 
which the Council reviewed in January 2022. In April 2022, the Council 
reviewed additional information that indicated that recreational 
harvest could significantly exceed the reduced recreational ACL 
alternatives under consideration in Amendment 54. In June 2022, the 
Council reviewed options for modifying the recreational fixed closed 
season in an effort to avoid a significant overage of those reduced 
recreational ACL alternatives, and voted to request that NMFS implement 
this emergency rule to change the recreational closed season to 
prohibit harvest in August 2022. NMFS received the Council's request on 
July 5, 2022.
    This change in the recreational fixed closed season requires 
immediate implementation. If NMFS were to provide prior notice and 
comment, NMFS would be unable to implement the change by August 1, 
2022, and projects recreational harvest would otherwise greatly exceed 
all of the 2022-2023 recreational ACLs that the Council is considering 
in Amendment 54. NMFS projects that no harvest would be allowed in the 
2023-2024 fishing season and that the entire amount of the overharvest 
would not be paid back under current recreational AMs. As a result, 
there would be a reduction in the biomass of the greater amberjack 
stock and more severe long-term reductions in harvest may be required 
to rebuild the stock. Therefore, the new recreational fixed closed 
season for greater amberjack must be implemented immediately and prior 
notice and opportunity for public comment would be contrary to the 
public interest. The need to implement these measures immediately for 
the reasons stated above also constitutes good cause under authority 
contained in 5 U.S.C. 553(d)(3) to waive the 30-day delay in 
effectiveness of the rule.
    This final temporary rule for emergency action is exempt from the 
procedures of the Regulatory Flexibility Act because the rule is issued 
without opportunity for prior notice and opportunity for public comment 
pursuant to 5 U.S.C. 553 or other law. Accordingly, no regulatory 
flexibility analysis is required and none has been prepared.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing season, Greater amberjack, Gulf of Mexico, 
Recreational, Reef fish.

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


[[Page 44031]]


    Dated: July 20, 2022.
Kimberly Damon-Randall,
Acting 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.  622.34, suspend paragraph (c) and add paragraph (h) to read 
as follows:


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

* * * * *
    (h) Seasonal closure of the recreational sector for greater 
amberjack. The recreational sector for greater amberjack in or from the 
Gulf EEZ is closed from August 1 through August 31, and November 1 
through July 31. During the closure, the bag and possession limit for 
greater amberjack in or from the Gulf EEZ is zero.

[FR Doc. 2022-15862 Filed 7-22-22; 8:45 am]
BILLING CODE 3510-22-P