[Federal Register Volume 78, Number 35 (Thursday, February 21, 2013)]
[Proposed Rules]
[Pages 12012-12015]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03980]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 121004516-3064-01]
RIN 0648-BC64


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

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 regulations to implement management measures 
described in a regulatory amendment to 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 rule would (1) establish a closure date for the 2013 recreational 
sector for gag harvest based on the projected annual catch target 
(ACT), and (2) reduce the geographic extent of the recreational 
shallow-water grouper (SWG) fixed seasonal closure, which are in place 
to prevent overfishing of gag, and to reduce fishing pressure on other 
SWG species. The reduction in the geographic extent of the closure 
still would provide some spawning season protection for several SWG 
species, but provides a better opportunity for the recreational sector 
to achieve optimum yield (OY) from the stocks in the SWG complex in the 
Gulf of Mexico (Gulf). This proposed rule is intended to help achieve 
OY for the Gulf gag and other SWG resources and prevent overfishing 
from the stocks in the SWG complex.

DATES: Written comments must be received on or before March 25, 2013.

ADDRESSES: You may submit comments on this document, identified by 
``NOAA-NMFS-2013-0012'', by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0012, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Peter Hood, 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). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    Electronic copies of the regulatory amendment, which includes an 
environmental assessment, regulatory impact review, and Regulatory 
Flexibility Act analysis, may be obtained from the Southeast Regional 
Office Web Site at http://sero.nmfs.noaa.gov/sf/GrouperSnapperandReefFish.htm.

FOR FURTHER INFORMATION CONTACT: Peter Hood, Southeast Regional Office, 
NMFS, telephone 727-824-5305; email: Peter.Hood@noaa.gov.

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf 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).

Background

    The Magnuson-Stevens Act requires NMFS and regional fishery 
management councils to prevent overfishing and achieve, on a continuing 
basis, OY from federally managed fish stocks. The reauthorized 
Magnuson-Stevens Act, as

[[Page 12013]]

amended through January 12, 2007, requires the councils to establish 
annual catch limits (ACLs) for each stock/stock complex and 
accountability measures (AMs) to ensure these ACLs are not exceeded. 
This proposed rule addresses these requirements by (1) establishing a 
closure date for the recreational sector for gag harvest based on when 
the ACT is projected to be reached, rather than closing on October 31, 
2013, under current regulations; and (2) modifying the geographic 
extent of the recreational SWG fixed seasonal closure, from February 1 
through March 31, each year, to permit recreational SWG fishing within 
Federal waters shoreward of the 20-fathom boundary during the closure. 
In the Gulf, SWG means gag, red grouper, black grouper, scamp, 
yellowfin grouper, and yellowmouth grouper.

Recreational Gag Fishing Season

    Gulf gag is overfished and the stock is currently in a rebuilding 
plan. The 10-year rebuilding plan was implemented through Amendment 32 
to the FMP (77 FR 6988, February 20, 2012). Pursuant to the rebuilding 
plan, in 2013, the recreational ACL is scheduled to increase from 1.232 
million lb (0.559 million kg) to 1.495 million lb (0.678 million kg), 
gutted weight, and the ACT is scheduled to increase from 1.031 million 
lb (0.468 million kg) in 2012 to 1.287 million lb (0.584 million kg), 
gutted weight. Preliminary estimates indicate the recreational sector 
landings did not exceed the 2012 ACL of 1.232 million lb (0.559 million 
kg), gutted weight, which would allow the ACL and ACT to be increased 
in 2013, in accordance with the rebuilding plan.
    The 2012 recreational gag fishing season was July 1 through October 
31. To set a 2013 recreational gag fishing season, the Council 
evaluated seasons beginning at different times. Fishermen had expressed 
interest in being able to fish for gag during other times of the year 
to accommodate regional and seasonal differences in gag fishing. As a 
result, several alternatives were developed to either move the start of 
the recreational gag fishing season to a different time, or to split 
the season into two or three sub-seasons. However, moving the season to 
times when there is greater demand for gag fishing would reduce the 
total number of days available to fish. Therefore, to provide 
additional fishing days, the Council added an option to reduce the bag 
limit from 2 to 1 fish during the recreational gag fishing season.
    After evaluating alternatives, the Council selected a recreational 
gag fishing season beginning on July 1, 2013, and closing when the ACT 
is projected to be reached, rather than closing on October 31, 2013, 
which is the current regulation. The Council also decided to maintain 
the 2-fish bag limit during the recreational gag fishing season rather 
than reduce the bag limit to 1 fish because the number of projected 
additional fishing days to the 2013 season was small (less than 2 
weeks). If implemented, each year, NMFS would project when the ACT is 
expected to be reached, and publish the date for the closure of the 
recreational sector for gag harvest in the Federal Register. Given a 
2013 ACT of 1.287 million lb (0.584 million kg), gutted weight, and 
assuming compatible state regulations, preliminary NMFS projections 
indicate the recreational gag fishing season would remain open until 
sometime between November 11 and December 3, 2013. A 2013 closure date 
for the recreational sector for gag harvest would be set in the final 
rule. This would allow landings data for the recreational sector, 
through the end of the 2012 recreational gag fishing season (October 
31), to be used for projecting the 2013 season length.
    The final closure date for the 2013 season may be earlier or later 
than closure dates described above because it is contingent on catches 
reported in 2012 and state consistency with regulations existing in 
2013. For example, in 2012, four Gulf coast counties in Florida had 
recreational gag fishing seasons in state waters that were inconsistent 
with the 2012 Federal season. All other Gulf coast counties were 
consistent with the season for Federal waters. If Florida chooses to 
repeat these seasons in 2013, then the effect of any inconsistent 
seasons on gag harvest would need to be factored into projections of 
how long the Federal season can be open based on the ACT. Furthermore, 
accountability measures, specified at 50 CFR part 622.49(a)(4)(ii), 
state that if landings reach, or are projected to reach, the ACL for 
that fishing year, NMFS will close the recreational sector for gag 
harvest for the remainder of the fishing year. Therefore, NMFS could 
close the recreational sector for gag harvest prior to reaching the 
final closure date (including the current closure date of October 31, 
as provided in 50 CFR 622.34(v)), if landings reach, or are projected 
to reach the ACL for that fishing year.

Recreational SWG Fixed Seasonal Closure

    The current recreational SWG fixed seasonal closure, from February 
1 through March 31, each year, was part of a suite of recreational 
measures implemented through Amendment 30B to the FMP (72 FR 17603, 
April 16, 2009) designed to achieve target harvest levels for both red 
grouper and gag, and to end overfishing of gag. Part of the rationale 
for selecting the recreational SWG fixed seasonal closure, from 
February 1 through March 31, each year, was to protect spawning of SWG 
species, and in particular gag, which spawn primarily along the 40-
fathom break in the eastern Gulf. Because the current and proposed 
recreational gag fishing season opens July 1, well after peak gag 
spawning in February and March, gag spawning is protected by both the 
closure of the recreational sector for gag harvest and the current 
recreational SWG fixed seasonal closure. The recreational SWG fixed 
seasonal closure, from February 1 through March 31, also covers the 
spawning periods of some of the other SWG species and thus provides a 
biological benefit to these species. Like gag, spawning for many of 
these SWG species occurs in offshore rather than near-shore waters; 
thus the modified geographic extent of the recreational SWG fixed 
seasonal closure proposed in this rule may continue to provide some 
protection for these SWG species with spawning periods during the 
proposed closure. In addition, red, black, and other SWG are managed 
with ACLs and AMs to prevent overfishing from occurring.
    The Council evaluated several alternatives to the recreational SWG 
fixed seasonal closure, including shortening, shifting, and repealing 
the closure. To continue protections for gag and other SWG spawning, 
the Council preferred to modify the geographic extent of the February 1 
through March 31 recreational SWG fixed seasonal closure, to only apply 
to Federal waters seaward of the 20-fathom boundary. If implemented, 
this modification would continue to provide protection for spawning gag 
as well as for other SWG species that spawn in waters deeper than 20 
fathoms in February and March. The coordinates of the boundary would 
follow the 20-fathom reef fish bottom longline boundary from the 
Florida Keys north and west to Cape San Blas, as specified in Table 1 
of Appendix B to 50 CFR Part 622. Because the longline boundary moves 
out to 50 fathoms west of Cape San Blas, new 20-fathom boundary 
coordinates would be established through this rule for waters off Cape 
San Blas to the U.S. and Mexico border.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
Assistant

[[Page 12014]]

Administrator for Fisheries, NOAA (AA), has determined that this 
proposed rule is consistent with the regulatory amendment, 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 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 implemented, would not have 
a significant economic impact on a substantial number of small 
entities. The factual basis for this determination is as follows:
    If implemented, this proposed rule would: (1) Close the 
recreational sector for gag harvest based on when the ACT is projected 
to be reached, rather than closing on October 31, 2013, under current 
regulations; and (2) modify the geographic extent of the recreational 
SWG fixed seasonal closure, from February 1 through March 31, each 
year, to permit recreational SWG fishing within Federal waters 
shoreward of the 20-fathom boundary during the closure. The purpose of 
this proposed rule is to prevent overfishing and achieve OY from the 
stocks in the SWG complex. The Magnuson-Stevens Act provides the 
statutory basis for this proposed rule.
    This rule, if implemented, is expected to directly affect 1,363 
vessels that possess a valid or renewable Gulf reef fish for-hire 
permit. A renewable permit is an expired permit that may not be 
actively fished, but is renewable for up to 1 year after expiration. 
The for-hire fleet is comprised of charterboats, which charge a fee on 
a vessel basis, and headboats, which charge a fee on an individual 
angler (head) basis. Although the Gulf reef fish for-hire permit does 
not distinguish between charterboats and headboats, an estimated 69 
headboats operate in the Gulf. As a result, an estimated 1,294 
charterboats and 69 headboats in the Gulf would be expected to be 
directly affected by this proposed rule. The average charterboat is 
estimated to earn approximately $77,000 (2010 dollars) in annual 
revenue, and the average headboat is estimated to earn approximately 
$234,000 (2010 dollars).
    No other small entities that would be expected to be directly 
affected by this proposed rule have been identified.
    The Small Business Administration has established size criteria for 
all major industry sectors in the U.S., including fish harvesters. A 
business involved in the for-hire 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 has 
combined annual receipts not in excess of $7.0 million (NAICS code 
713990, recreational industries). Based on the average revenue 
estimates provided above, all for-hire vessels expected to be directly 
affected by this proposed rule are determined for the purpose of this 
analysis to be small business entities.
    This rule, if implemented, would change the closure date for the 
recreational sector for gag harvest and the geographic extent of the 
recreational SWG fixed seasonal closure. The proposed closure date for 
the recreational sector for gag harvest would be expected to increase 
the number of charterboat individual angler trips targeting gag Gulf-
wide by 770-2,464 trips, where a ``trip'' is based on each individual 
angler rather than the charterboat as a whole. Angler trips are used as 
the metric of analysis instead of vessel trips because species target 
information is collected at the angler level and not at the vessel 
level. The estimated producer surplus (PS), which is used as a proxy 
for vessel profit, of a charterboat angler trip is $145.63 (2010 
dollars). The increase in the number of charterboat individual angler 
trips targeting gag expected to occur as a result of the proposed 
change in the recreational gag fishing season would be expected to 
increase the PS for all affected charterboats combined by approximately 
$112,000-$359,000 (770-2,464 trips times $145.63 per trip; 2010 
dollars). During the 2007-2011 period, the Gulf charterboat fleet 
averaged approximately 765,200 angler trips per year, of which an 
average of approximately 14,600, or less than 2 percent, targeted gag. 
These trips targeting gag generated approximately $111 million in PS 
per year for the entire fleet. The estimated increase in PS expected to 
result from the proposed closure date for the recreational sector for 
gag harvest would, therefore, be expected to increase the total PS 
received by charterboats by less than 1 percent (approximately 0.1-0.3 
percent). Allocated across all charterboats (1,294 vessels), the 
estimated change in PS would result in an increase of approximately 
$77-$277 (2010 dollars) per vessel. Although some charterboats would be 
expected to be more actively engaged in the harvest of gag than others, 
these results indicate that the proposed closure date for the 
recreational sector for gag harvest would be expected to have a minor 
economic impact on the profit of charterboats.
    Comparable information for Gulf headboats is not available because 
target data for headboat trips are not collected. However, gag accounts 
for less than 4 percent of the total pounds of all species 
recreationally harvested by headboats, whereas gag accounts for 
approximately 13 percent of the total pounds recreationally harvested 
by charterboat anglers despite the low rate (less than two percent of 
total trips) of gag target effort by charterboat anglers. The higher 
proportion of gag harvest relative to total harvest for charterboats 
compared to headboats, despite the low rate of gag target effort by 
charterboat anglers, suggests that gag target effort by headboat 
anglers is similarly low. As a result, the proposed closure date for 
the recreational sector for gag harvest would be expected to result in 
a small change in the number of headboat angler trips taken and, as a 
result, have a minor economic impact on the profit of headboats.
    The proposed change in the geographic extent of the recreational 
SWG fixed seasonal closure would be expected to result in a minor 
economic impact to for-hire small businesses. A fixed seasonal closure 
applicable to the recreational sector for gag, black grouper, and red 
grouper of some duration has been in effect since 2006 and was expanded 
to include all SWG species in 2010. As a result, examination of data 
prior to 2006 is required to provide insights into the possible 
economic effects of the proposed change in the geographic extent of the 
recreational SWG fixed seasonal closure.
    During 2004-2005, approximately 6,300 trips are estimated to have 
been taken each year during February and March by charterboat anglers 
targeting SWG species. Among the species in the SWG complex, gag is the 
most commonly targeted species. Of the approximately 6,300 charterboat 
angler trips targeting SWG taken each year during these months, 
approximately 4,700 of these trips, or approximately 74 percent, 
targeted gag. NMFS notes that these results should not be compared with 
previous discussion of the low importance of gag target effort to 
charterboat anglers overall (less than 2 percent of total target trips) 
because that discussion pertained to annual target effort for all 
species; the current discussion pertains only to target effort in 
February-March, and only to SWG species. As a result, of the 
approximately 6,300 trips targeting SWG that occurred each year during 
February-March, only approximately 1,600 trips targeted SWG species 
other than gag. During these two years, 2004-2005, approximately 
765,300 charterboat angler trips were taken each

[[Page 12015]]

year. Thus, the number of trips that targeted a SWG species other than 
gag during February-March represented approximately 0.2 percent of all 
charterboat angler trips taken over the entire year.
    The proposed change in the geographic extent of the recreational 
SWG fixed seasonal closure would eliminate the recreational SWG fixed 
seasonal closure in Federal waters shoreward of the 20-fathom boundary. 
Estimates of recreational target effort by water depth are not 
available and the estimates of angler effort provided above, which 
encompass effort throughout the Gulf, cannot be disaggregated to match 
the geographic parameters of the proposed rule. As a result, because 
some SWG target effort may occur seaward of the 20-fathom boundary, 
estimates of the expected economic effects of the proposed change in 
the geographic extent of the recreational SWG fixed seasonal closure 
based on the angler target information discussed above would be 
expected to be an upper bound. Based on the information provided above, 
because the recreational harvest of gag would continue to be prohibited 
seaward of the 20-fathom boundary, the proposed change in the 
geographic extent of the recreational SWG fixed seasonal closure would 
be expected to result in a maximum increase of approximately 1,600 
charterboat angler trips, or approximately 0.2 percent of normal 
charterboat angler trips taken over the year. Based on this number of 
charterboat angler trips, these trips would be expected to result in an 
increase in the PS to the Gulf charterboat fleet by approximately 
$235,000 (1,600 trips times $145.63 per trip; 2010 dollars), or 
approximately 0.2 percent of total PS received by charterboats. 
Allocated across all charterboats, the estimated change in PS would 
result in an increase of approximately $182 (2010 dollars) per vessel. 
Similar to the discussion on the expected effects of the proposed 
closure date for the recreational sector for gag harvest, although some 
charterboats would be expected to be more actively engaged than others 
in the harvest of SWG species other than gag, these results indicate 
that the proposed change in the geographic extent of the recreational 
SWG fixed seasonal closure would be expected to have a minor economic 
impact on the profit of charterboats.
    Similar to the discussion of the expected effects of the proposed 
closure date for the recreational sector for gag harvest, estimates of 
the expected effects of the proposed change in the geographic extent of 
the recreational SWG fixed seasonal closure on headboats cannot be 
calculated with available data, because target data for headboat trips 
are not collected. However, because the proposed change would only 
affect the harvest of SWG species other than gag, which is the most 
commonly targeted SWG species, and would affect fishing opportunities 
for only a small portion of the year, the proposed change in the 
geographic extent of the recreational SWG fixed seasonal closure would 
be expected to result in only a small increase in the number of 
headboat angler trips taken. As a result, this proposed change in the 
geographic extent would be expected to have only a minor economic 
impact on the profit of headboats.
    In summary, the proposed rule, if implemented, would not be 
expected to have a significant economic effect 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 does not establish any new reporting, record-
keeping, or other compliance requirements.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.


    Dated: February 15, 2013.
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 
proposed to be 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.  622.34, paragraphs (u) and (v) are revised to read as 
follows:


Sec.  622.34  Gulf EEZ seasonal and/or area closures.

* * * * *
    (u) Seasonal closure of the recreational sector for shallow-water 
grouper (SWG). The recreational sector for SWG, in or from the Gulf 
EEZ, is closed each year from February 1 through March 31, in the 
portion of the Gulf EEZ seaward of rhumb lines connecting, in order, 
the points in the following table. During the closure, the bag and 
possession limit for SWG in or from the Gulf EEZ seaward of the 
following rhumb lines is zero.

------------------------------------------------------------------------
            Point                     North lat.            West long.
------------------------------------------------------------------------
1...........................  24[deg]48.0'..............    82[deg]48.0'
2...........................  25[deg]07.5'..............    82[deg]34.0'
3...........................  26[deg]26.0'..............    82[deg]59.0'
4...........................  27[deg]30.0'..............    83[deg]21.5'
5...........................  28[deg]10.0'..............    83[deg]45.0'
6...........................  28[deg]11.0'..............    84[deg]00.0'
7...........................  28[deg]11.0'..............    84[deg]07.0'
8...........................  28[deg]26.6'..............    84[deg]24.8'
9...........................  28[deg]42.5'..............    84[deg]24.8'
10..........................  29[deg]05.0'..............    84[deg]47.0'
11..........................  29[deg]02.5'..............    85[deg]09.0'
12..........................  29[deg]21.0'..............    85[deg]30.0'
13..........................  29[deg]27.9'..............    85[deg]51.7'
14..........................  29[deg]45.8'..............    85[deg]51.0'
15..........................  30[deg]05.6'..............    86[deg]18.5'
16..........................  30[deg]07.5'..............    86[deg]56.5'
17..........................  29[deg]43.9'..............    87[deg]33.8'
18..........................  29[deg]43.0'..............    88[deg]18.5'
19..........................  At State/EEZ line, follow     88[deg]56.0'
                               State/EEZ line to point
                               20.
20..........................  At State/EEZ line.........    89[deg]28.4'
21..........................  29[deg]02.0'..............    89[deg]45.5'
22..........................  28[deg]32.7'..............    90[deg]21.5'
23..........................  28[deg]24.8'..............    90[deg]52.7'
24..........................  28[deg]42.3'..............    92[deg]14.4'
25..........................  28[deg]34.2'..............    92[deg]30.4'
26..........................  28[deg]27.6'..............    95[deg]00.0'
27..........................  28[deg]20.0'..............    95[deg]06.9'
28..........................  28[deg]02.2'..............    96[deg]11.1'
29..........................  27[deg]46.5'..............    96[deg]38.1'
30..........................  27[deg]15.0'..............    97[deg]00.0'
31..........................  26[deg]45.5'..............    97[deg]01.4'
32..........................  At EEZ....................    96[deg]51.0'
------------------------------------------------------------------------

     (v) Seasonal closure of the recreational sector for gag. The 
recreational sector for gag, in or from the Gulf EEZ, is closed from 
January 1 through June 30 and November 11 through December 31, each 
year. During the closure, the bag and possession limit for gag in or 
from the Gulf EEZ is zero.
[FR Doc. 2013-03980 Filed 2-20-13; 8:45 am]
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