[Federal Register Volume 77, Number 195 (Tuesday, October 9, 2012)]
[Rules and Regulations]
[Pages 61295-61299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24791]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 120403249-2492-02]
RIN 0648-BC03
Snapper-Grouper Fishery off the Southern Atlantic States;
Snapper-Grouper Management Measures
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this final rule to implement a regulatory
amendment (Regulatory Amendment 12) to the Fishery Management Plan for
the Snapper-Grouper Fishery of the South Atlantic Region (FMP), as
prepared by the South Atlantic Fishery Management Council (Council).
Regulatory Amendment 12 revises the optimum yield (OY) for golden
tilefish in the South Atlantic exclusive economic zone (EEZ) and
modifies the golden tilefish annual catch limit (ACL) to be equal to
the OY. Regulatory Amendment 12 also revises the recreational
accountability measures (AMs). This rule specifies the revised
commercial and recreational ACLs for golden tilefish and the revised
recreational AMs for golden tilefish. Additionally, through this final
rule, NMFS announces the reopening of the golden tilefish commercial
sector with a commercial trip limit of 300 lb (136 kg) for the 2012
fishing year. The intent of this rule is to modify management measures
for golden tilefish in the commercial and recreational sectors in the
South Atlantic based on new stock assessment analyses.
DATES: This rule is effective October 9, 2012 except regulations at
Sec. 622.49(b)(1)(ii) which will be effective November 8, 2012. The
commercial
[[Page 61296]]
sector for golden tilefish will reopen at 12:01 a.m. on October 9, 2012
and will remain open until the end of the fishing year or until further
notice is published in the Federal Register.
ADDRESSES: Electronic copies of Regulatory Amendment 12, which includes
an environmental assessment, regulatory flexibility analysis,
regulatory impact review, and fishery impact statement, may be obtained
from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov/sf/SASnapperGrouperHomepage.htm.
FOR FURTHER INFORMATION CONTACT: Karla Gore, Southeast Regional Office,
NMFS, telephone: 727-824-5305, or email: [email protected].
SUPPLEMENTARY INFORMATION: The snapper-grouper fishery of the South
Atlantic is managed under the 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).
On July 20, 2012, NMFS published a proposed rule in the Federal
Register for Regulatory Amendment 12 and requested public comment (77
FR 42688). The proposed rule and Regulatory Amendment 12 explained the
rationale for the actions contained in this final rule, and they are
not repeated here.
Management Measures Contained in This Final Rule
This final rule increases the South Atlantic golden tilefish
commercial ACL from 316,757 lb (143,679 kg), round weight, or 282,819
lb (128,285 kg), gutted weight, to 606,250 lb (274,990 kg), round
weight, or 541,295 lb (245,527 kg), gutted weight, and increases the
recreational ACL from 1,578 fish to 3,019 fish. The commercial and
recreational ACL increases are based on the stock ACL increase in
Regulatory Amendment 12 and the commercial and recreational allocations
previously established in Amendment 17B to the FMP.
This final rule also modifies the AMs for the golden tilefish
recreational sector of the snapper-grouper fishery. If recreational
landings for golden tilefish reach, or are projected to reach the
recreational ACL, NMFS will file a notification with the Office of the
Federal Register to close the recreational sector for the remainder of
the fishing year. Additionally, if the ACL is exceeded, then during the
following fishing year, recreational landings will be monitored and, if
necessary, the length of the following recreational fishing season will
be reduced by the amount necessary to ensure recreational landings do
not exceed the recreational ACL in the following fishing year.
Management Measures Contained in Regulatory Amendment 12
Additionally, Regulatory Amendment 12 revises OY for golden
tilefish and establishes the ACL equal to the OY and equal to the yield
at 75 percent of the fishing mortality at MSY when the population is at
equilibrium.
Reopening the Commercial Sector for Golden Tilefish
The golden tilefish fishing year extends from January 1 through
December 31 each year. NMFS closed the commercial sector for golden
tilefish on February 17, 2012, because the commercial ACL (equal to the
commercial quota) was projected to have been reached by that date (77
FR 8750, February 15, 2012). However, due to the increased commercial
ACL implemented through this final rule, NMFS has determined based on
current information that additional golden tilefish may be harvested.
Therefore, NMFS announces the reopening of the commercial sector for
golden tilefish through this final rule. The commercial sector for
golden tilefish will reopen at 12:01 a.m. on October 9, 2012.
Regulations at Sec. 622.44(c)(2)(ii) state that after 75 percent of
the fishing year quota (commercial ACL) specified in Sec. 622.42(e)(2)
is reached, the trip limit for the commercial sector of golden tilefish
is 300 lb (136 kg), gutted weight. NMFS has determined that 75 percent
of the commercial quota (commercial ACL) has been landed and, thus,
reopens the commercial sector for golden tilefish with the reduced trip
limit of 300 lb (136 kg), gutted weight, for the remainder of the
fishing year, or until the new ACL is reached or projected to be
reached. If the new ACL is reached or projected to be reached before
the end of the fishing year, NMFS will file a notification with the
Office of the Federal Register to close the commercial sector for
golden tilefish for the remainder of the fishing year.
NMFS closed the recreational sector for golden tilefish on June 4,
2012, because the recreational ACL was projected to have been reached
by that date (77 FR 32914, June 4, 2012). NMFS has determined that the
increased recreational ACL, implemented through this final rule, has
been harvested. Therefore, NMFS is not reopening the recreational
sector for golden tilefish for the current fishing year.
Other Changes Not Contained in Regulatory Amendment 12
NMFS updates regulations at Sec. 622.49(b)(1)(i) for the golden
tilefish commercial sector AMs to clarify that the commercial quota is
equal to the commercial ACL.
Comments and Responses
A total of 6 comments were received on the proposed rule for
Regulatory Amendment 12, including comments from individuals and two
fishing associations. Specific comments related to the actions
contained in Regulatory Amendment 12 and the proposed rule, as well as
NMFS' respective responses, are summarized below. Similar comments are
grouped together.
Comment 1: Multiple comments were received regarding the reopening
of the commercial sector for golden tilefish, specifically with regards
to the commercial trip limit and reopening procedures. One comment
stated that the golden tilefish trip limit should be set at 300 lb (136
kg), gutted weight, rather than 4,000 lb (1,814 kg), gutted weight, to
ensure that the hook-and-line component of the commercial sector has
the opportunity to fish for golden tilefish and the quota is not
exceeded. A second comment stated that golden tilefish should reopen
for a fixed time-period based on projections of past highest weeks of
landings instead of the 4,000 lb (1,814 kg), gutted weight, trip limit.
A third comment stated that if 75 percent of the hook-and-line quota is
not met by September 1, boats with longline endorsements should be able
to participate in the hook-and-line component of the commercial sector,
using bandit reels, under a 500 lb (227 kg), gutted weight, trip limit.
A fourth comment stated that golden tilefish should be open for the
first 15 days of each month with a 4,000 lb (1,814 kg), gutted weight,
trip limit. The fourth comment continued by stating that after 70
percent of the quota (ACL) is caught, reporting of catch should be
required 24 hours after landing to ensure the ACL is not exceeded and
that this procedure should continue monthly until the ACL is reached.
Response: Current regulations specify that the trip limit for the
golden tilefish commercial sector is reduced from 4,000 lb (1,814 kg),
gutted weight, to 300 lb (136 kg), gutted weight, after 75 percent of
the quota (ACL) is met. If 75 percent of the fishing-year ACL has not
been taken on or before September 1, the trip limit will not be
reduced. Based on landings information for 2012, NMFS has determined
that 75 percent of the revised ACL was landed before
[[Page 61297]]
September 1. Therefore, NMFS is reopening the commercial sector with a
trip limit of 300 lb (136 kg), gutted weight.
Regulatory Amendment 12 and this rule do not modify the commercial
trip limit or reopening procedures. Many of the comments related to the
reopening of the commercial sector appear to be directed to Amendment
18B to the FMP, which is under review by the Secretary and not part of
this rulemaking. For reference, Amendment 18B considers the
establishment of a longline endorsement program, allocations of the
quota to the longline and hook-and-line components of the commercial
sector, and modifications to the golden tilefish trip limit, including
a 500-lb (227-kg), gutted weight, trip limit for fishermen with a South
Atlantic Unlimited Snapper-Grouper Permit who do not qualify for an
endorsement.
Comment 2: The revised ACL and reopening of the commercial sector
for golden tilefish should take effect on August 1, 2012.
Response: The comment period on the proposed rule ended on August
20, 2012. NMFS must consider all public comments before implementing
the amendment.
Comment 3: The recreational allocation for golden tilefish should
be increased from 3 percent to 20 percent.
Response: Sector allocations were not considered in Regulatory
Amendment 12. The recreational ACL implemented in this final rule is
based on the allocations previously specified by the Council in
Amendment 17B to the FMP.
Comment 4: The recreational bag limit should be increased to two
fish per person or six fish per vessel, whichever is fewer.
Response: The current recreational bag limit for golden tilefish is
one fish per vessel. Regulatory Amendment 12 did not consider an action
to modify the recreational bag limit for golden tilefish and therefore
NMFS did not propose any change to the current bag limit.
Comment 5: The current ACL for golden tilefish is too low. There
needs to be a new stock assessment to revise the ACL.
Response: Regulatory Amendment 12 increases the ACL for golden
tilefish based on the results of a stock assessment completed in
November 2011, and reviewed by the Council in December 2011. This stock
assessment is the best scientific information available. When new data
and information become available, a new stock assessment for golden
tilefish will be completed and will be reviewed by the Council's
Scientific and Statistical Committee (SSC) and considered by the
Council. At the time of this final rule, the date of the next stock
assessment has not been determined.
Comment 6: Regulatory Amendment 12 does not address the need to
reduce participation in the golden tilefish component of the snapper-
grouper fishery so that the fishing season can be extended and the ACL
is not exceeded.
Response: NMFS agrees that Regulatory Amendment 12 does not address
reducing participation in the golden tilefish component of the snapper-
grouper fishery. Amendment 18B, under review by the Secretary, would
establish an endorsement program for golden tilefish to limit
participation in the longline component, and allocate a portion of the
quota to the hook-and-line and longline components of the commercial
sector. These measures, if implemented, would be expected to extend the
fishing season.
Classification
The Regional Administrator, Southeast Region, NMFS, has determined
that this final rule is necessary to more efficiently manage the golden
tilefish component of the snapper-grouper fishery and is consistent
with the Magnuson-Stevens Act, and other applicable law.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Regulatory Flexibility Act
A final regulatory flexibility analysis (FRFA) was prepared. The
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a
summary of the significant economic issues raised by public comments,
NMFS' responses to those comments, and a summary of the analyses
completed to support the action. The FRFA follows.
No public comments specific to the IRFA were received and,
therefore, no public comments are addressed in this FRFA. No changes to
the final rule were made in response to public comments.
NMFS agrees that the Council's choice of preferred alternatives
would best achieve the Council's objectives while minimizing, to the
extent practicable, the adverse effects on fishers, support industries,
and associated communities. The preamble to the final rule provides a
statement and need for, and the objectives of this rule, and is not
repeated here.
The Magnuson-Stevens Act provides the statutory basis for this
rule. No duplicative, overlapping, or conflicting Federal rules have
been identified. This rule would not introduce any changes to current
reporting, record-keeping, and other compliance requirements.
NMFS expects the rule to directly affect commercial fishers and
for-hire operators. The Small Business Administration established size
criteria for all major industry sectors in the U.S. including fish
harvesters and for-hire operations. A business involved in fish
harvesting 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 $4.0 million (NAICS code 114111, finfish fishing) for all of
its affiliated operations worldwide. For for-hire vessels, other
qualifiers apply and the annual receipts threshold is $7.0 million
(NAICS code 713990, recreational industries).
A total of 142 vessels using hook-and-line gear and 38 vessels
using longline gear landed golden tilefish in any one year during 2005-
2010. Vessels using hook-and-line gear landed an annual average of
about 27,000 lb (12,247 kg), gutted weight, of golden tilefish and
220,000 lb (99,790 kg), gutted weight, of other snapper-grouper
species. Gross revenues of these vessels annually averaged $76,000
(2010 dollars) from golden tilefish and $567,000 (2010 dollars) from
other snapper-grouper species. For 2005-2010, vessels using longline
gear landed an annual average of about 298,000 lb (135,172 kg), gutted
weight, of golden tilefish and 153,000 lb (69,400 kg), gutted weight,
of other snapper-grouper species. For this period, their revenues
annually averaged $802,000 from golden tilefish and $286,000 from other
snapper-grouper species. On average, vessels using hook-and-line gear
depended on other snapper-grouper species for a majority of their
revenues while vessels using longline gear depended on golden tilefish
as their major source of revenues. Some vessels using hook-and-line
gear could be expected to be more dependent on golden tilefish as a
major source of revenues. Similarly, some vessels using longline gear
could be more dependent on other snapper-grouper species as a major
source of revenues. These vessels, using hook-and-line or longline
gear, are considered to comprise the universe of commercial vessels
directly affected by actions in this regulatory amendment, including
the ACL alternatives. With the ACL increase, other commercial vessels
may enter or re-enter the golden tilefish portion of the snapper-
grouper fishery, but it is not reasonably possible to determine how
many vessels would do so.
Based on revenue information, all commercial vessels affected by
this final rule can be considered small entities.
[[Page 61298]]
From 2005-2010, an annual average of 1,985 vessels had valid
permits to operate in the snapper-grouper for-hire sector, of which 85
are estimated to have operated as headboats. The for-hire fleet
consists of charterboats, which charge a fee on a vessel basis, and
headboats, which charge a fee on an individual angler (head) basis. The
charterboat annual average gross revenue (2010 dollars) is estimated to
range from approximately $62,000-$84,000 for Florida vessels, $73,000-
$89,000 for North Carolina vessels, $68,000-$83,000 for Georgia
vessels, and $32,000-$39,000 for South Carolina vessels. For headboats,
the corresponding revenue estimates are $170,000-$362,000 for Florida
vessels, and $149,000-$317,000 for vessels in the other states.
Based on these average revenue figures, all for-hire operations
that would be affected by the rule can be considered small entities.
Some fleet activity, i.e., multiple vessels owned by a single
entity, may exist in both the commercial and for-hire snapper-grouper
sectors to an unknown extent, and all vessels are considered as
independent entities in this analysis.
NMFS expects the rule to directly affect all federally permitted
commercial vessels harvesting golden tilefish and for-hire vessels that
operate in the South Atlantic snapper-grouper fishery. All directly
affected entities have been determined, for the purpose of this
analysis, to be small entities. Therefore, NMFS determines that the
rule would affect a substantial number of small entities.
Because NMFS determines that all entities expected to be affected
by the rule are small entities, the issue of disproportional effects on
small versus large entities does not arise in the present case.
This rule will not modify the commercial AM. Therefore, an ACL
increase will result in revenue increases to the commercial vessels. It
is also expected that such revenue increases would lead to profit
increases, although the magnitude of profit increases cannot be
estimated based on available information.
This rule will modify the current recreational post-season AM and
add a new recreational in-season AM. The recreational sector has
exceeded its ACL in recent years. In 2011, this sector exceeded its ACL
by more than 500 percent. The ACL increase would not be enough to
compensate for the expected overages in the recreational sector. Hence,
with the in-season and post-season AM for the recreational sector, the
for-hire entities may be expected to experience profit reductions even
if the ACL is increased. The magnitude of such profit reduction cannot
be estimated based on available information.
Because the commercial sector harvests substantially more golden
tilefish than the recreational sector, receiving 97 percent of the
combined ACL, NMFS expects that the profit increases to the commercial
sector would cumulatively outweigh the profit decreases to the for-hire
sector. Hence, NMFS expects that the ACL increase would yield positive
net profit to small entities that participate in the golden tilefish
component of the snapper-grouper fishery.
Reopening the 2012 fishing season for the commercial harvest of
golden tilefish with a 300 lb (136 kg) trip limit would result in the
immediate realization of some of the benefits of the rule.
The following discussion analyzes the alternatives that were not
chosen as preferred by the Council. Five alternatives, including the
preferred alternative, were considered for revising the ACL and OY for
golden tilefish. The first alternative, the no action alternative,
would maintain the existing ACL, which is equal to OY and the OY is
equal to 75 percent of the fishing mortality at MSY. This is not a
viable alternative because, based on updated biomass information, it
would result in an ACL that is greater than the acceptable biological
catch (ABC) recommended by the Council's SSC. The second alternative
would set the ACL equal to the OY and the OY equal to the ABC. Due to
its larger ACL, this alternative would result in larger short-term
revenue and profit increases to commercial vessels than the preferred
alternative. For the same reason, it would also result in better
fishing opportunities and possibly higher profits to for-hire vessels
than the preferred alternative. However, this alternative poses some
risks, largely absent in the preferred alternative, of pushing the
stock to an overfished level; fishery managers can overshoot the
equilibrium biomass target, which could result in the population
biomass dropping below both target and limit levels. In addition, this
alternative provides for declining ACLs over time, which would tend to
invite controversy, especially when the stock is abundant and not
overfished. On the other hand, the preferred alternative would provide
for stable harvest levels over time that, although lower than those of
the second alternative, would still be substantially higher than
current levels. The third alternative would set the ACL equal to the OY
and the OY equal to 90 percent of the ABC. The fourth alternative would
set the ACL equal to the OY and the OY equal to 80 percent of the ABC.
These two other alternatives would provide for lower ACLs than the
preferred alternative, and thus lower economic benefits as well.
Four alternatives, including the preferred alternative, were
considered for revising the recreational AMs for golden tilefish. The
first alternative, the no action alternative, is a post-season AM and
employs a 3-year averaging method for determining ACL overages. Without
an in-season AM, this alternative would not be as effective as the
preferred alternative in preventing overages in the recreational
sector. In addition, given the relatively large recreational harvests
in recent years, the 3-year averaging method for determining ACL
overages could potentially trigger the application of the AM even if no
overages occurred in the current year. This would result in short-term
reductions in profits and might also delay the benefits that would
accrue from increasing the sector's ACL. The second alternative would
specify a recreational sector AM trigger and includes two sub-
alternatives, including the preferred sub-alternative. The first sub-
alternative would not specify a recreational sector AM trigger, thus
possibly limiting adverse effects on the profits of small entities.
However, it would not provide for a measurable index in addressing the
overages in the recreational sector. The third alternative would
specify a recreational sector in-season AM and includes two sub-
alternatives, including the preferred sub-alternative. The first sub-
alternative would not specify a recreational sector in-season AM. This
sub-alternative would likely result in higher profits to small entities
than the preferred sub-alternative. However, it would not address the
overages in the recreational sector that would eventually result in
more restrictive regulations and larger reductions in the profits of
small entities. The fourth alternative would specify a recreational
sector post-season AM and includes two sub-alternatives, including the
preferred sub-alternative. The first sub-alternative would specify a
recreational sector post-season AM in terms of paybacks for the prior
year's overages if golden tilefish were overfished. This sub-
alternative would likely result in larger profit reductions to small
entities than the preferred sub-alternative. Moreover, this sub-
alternative would be unnecessary
[[Page 61299]]
because golden tilefish is not overfished.
Administrative Procedure Act
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior
notice and an opportunity for public comment on the reopening of the
commercial sector for golden tilefish in the South Atlantic EEZ, as
notice and comment would be unnecessary and contrary to the public
interest. Providing prior notice and the opportunity for public comment
is unnecessary because the increased commercial and recreational ACLs
for golden tilefish were subject to notice and comment as part of the
proposed rule for Regulatory Amendment 12 (77 FR 42688); therefore,
this waiver only covers the portion of the final rule that informs the
public that additional commercial harvest is available and that the
commercial sector will reopen. In addition, delaying implementation of
this rulemaking to provide for prior notice and public comment is
contrary to the public interest because it would reduce the likelihood
of reopening the commercial sector for golden tilefish in the early
fall months, when weather conditions are more favorable and fishing
conditions are safer. Delaying the reopening to allow for public
comment would therefore endanger the health and safety of the fishing
fleets without providing any benefits to the public.
Three provisions in this final rule are exempt from the requirement
to delay the effectiveness of a final rule by 30 days after publication
in the Federal Register, under 5 U.S.C. 553(d)(1). Specifically, the
following provisions relieve restrictions on the regulated community:
The increases in the commercial and recreational ACLs for golden
tilefish set forth in Sec. 622.42(e)(2) and Sec. 622.49(b)(1)(ii),
and the reopening of the commercial sector to allow for the harvest of
the new commercial ACL and achievement of OY. However, the recreational
ACL is contained in the same paragraph in the regulations as the
recreational AMs for golden tilefish. The provisions that implement the
in-season AM and revise the post-season AM for the recreational sector
for golden tilefish do not relieve a restriction and are therefore
subject to the 30-day delay in effectiveness. Further, because the
increased recreational ACL has already been reached, and the
recreational sector will not reopen, the increased recreational ACL
does not need to be effective immediately. Therefore, the paragraph in
the regulations containing both the recreational ACL and AMs for golden
tilefish, Sec. 622.49(b)(1)(ii), will be effective 30 days after
publication of this final rule.
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 vessel permit holders in the South
Atlantic snapper-grouper fishery.
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
Dated: October 3, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the 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, 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. 622.42, paragraph (e)(2) is revised to read as follows:
Sec. 622.42 Quotas.
* * * * *
(e) * * *
(2) Golden tilefish--541,295 lb (245,527 kg).
* * * * *
0
3. In Sec. 622.49, the section heading is revised, and paragraphs
(b)(1)(i) and (b)(1)(ii) are revised to read as follows:
Sec. 622.49 Annual catch limits (ACLs), annual catch targets (ACTs),
and accountability measures (AMs).
* * * * *
(b) * * *
(1) * * *
(i) Commercial sector. If commercial landings, as estimated by the
SRD, reach or are projected to reach the commercial ACL (commercial
quota) specified in Sec. 622.42(e)(2), the AA will file a notification
with the Office of the Federal Register to close the commercial sector
for the remainder of the fishing year.
(ii) Recreational sector. If recreational landings for golden
tilefish, as estimated by the SRD, reach or are projected to reach the
recreational ACL of 3,019 fish, 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. If recreational landings for golden
tilefish, as estimated by the SRD, exceed the recreational ACL, then
during the following fishing year, recreational landings will be
monitored for a persistence in increased landings and, if necessary,
the AA will file a notification with the Office of the Federal
Register, to reduce the length of the following recreational fishing
season by the amount necessary to ensure recreational landings do not
exceed the recreational ACL in the following fishing year.
* * * * *
[FR Doc. 2012-24791 Filed 10-3-12; 4:15 pm]
BILLING CODE 3510-22-P