[Federal Register Volume 78, Number 90 (Thursday, May 9, 2013)]
[Rules and Regulations]
[Pages 27084-27088]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-11072]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 121004518-3398-01]
RIN 0648-BC66


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Amendment 37

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement management measures 
for gray triggerfish described in Amendment 37 to the Fishery 
Management Plan for the Reef Fish Resources of the Gulf of Mexico 
(FMP), prepared by the Gulf of Mexico Fishery Management Council 
(Council). This final rule revises the commercial and recreational 
annual catch limits (ACLs) and annual catch targets (ACTs) for gray 
triggerfish; revises the recreational accountability measures (AMs) for 
gray triggerfish; revises the gray triggerfish recreational bag limit; 
establishes a commercial trip limit for gray triggerfish; and 
establishes a fixed closed season for the gray triggerfish commercial 
and recreational sectors. Additionally, Amendment 37 modifies the gray 
triggerfish rebuilding plan. The purpose of Amendment 37 and this final 
rule is to end overfishing of gray triggerfish and help achieve optimum 
yield (OY) for the gray triggerfish resource in accordance with the 
requirements of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act).

DATES: This rule is effective June 10, 2013 except for the amendments 
to Sec. Sec.  622.39(a)(1)(vi) and 622.41(b) which are effective May 9, 
2013.

ADDRESSES: Electronic copies of Amendment 37, which includes an 
environmental assessment, a regulatory flexibility act analysis (RFAA), 
and a regulatory impact review, may be obtained from the Southeast 
Regional Office Web site at http://sero.nmfs.noaa.gov/sf/GrouperSnapperandReefFish.htm.

FOR FURTHER INFORMATION CONTACT: Rich Malinowski, Southeast Regional 
Office, telephone 727-824-5305, email rich.malinowski@noaa.gov.

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf is managed

[[Page 27085]]

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 Act. All gray triggerfish weights discussed in this 
rule are in round weight.
    On January 25, 2013, NMFS published a notice of availability for 
Amendment 37 and requested public comment (78 FR 5404). On February 13, 
2013, NMFS published a proposed rule for Amendment 37 and requested 
public comment (78 FR 10122). The proposed rule and Amendment 37 
outline the rationale for the actions contained in this final rule. A 
summary of the actions implemented by this final rule is provided 
below.

Management Measures Contained in This Final Rule

ACLs and ACTs

    This rule revises the ACLs for the gray triggerfish commercial and 
recreational sectors. This rule also revises the ACTs for both sectors. 
The commercial ACT is expressed as a quota in the regulatory text.
    The Council's Scientific and Statistical Committee (SSC) 
recommended that the gray triggerfish acceptable biological catch (ABC) 
be reduced to 305,300 lb (138,346 kg) from the current gray triggerfish 
ABC of 595,000 lb (269,887 kg). In Amendment 30A to the FMP, the 
Council established a 21 percent commercial and 79 percent recreational 
allocation of the gray triggerfish ABC (73 FR 38139, July 3, 2008), and 
set the ABC equal to the ACL. Applying those sector allocations to the 
revised ACL of 305,300 lb (138,346 kg) results in a reduced commercial 
ACL of 64,100 lb (29,075 kg), and a reduced recreational ACL of 241,200 
lb (109,406 kg).
    The Generic Annual Catch Limit Amendment developed by the Council 
and implemented by NMFS (76 FR 82044, December 29, 2011) established a 
standardized procedure to set sector-specific ACTs based on the ACLs. 
This procedure evaluates components that were selected to represent 
proxies for various sources of management uncertainty and uses a 
formula to determine the appropriate buffer between the ACL and ACT. 
The Council used this procedure for Amendment 37, which resulted in a 5 
percent buffer between the commercial ACL and ACT, and a 10 percent 
buffer between the recreational ACL and ACT. Therefore, this final rule 
sets the commercial ACT (commercial quota) at 60,900 lb (27,624 kg), 
and the recreational ACT at 217,100 lb (98,475 kg). The ACLs and ACTs 
in this rule are the same as those implemented through the temporary 
rule for gray triggerfish (77 FR 28308, May 14, 2012, and extended in 
77 FR 67303, November 9, 2012), which remains in effect until the 
effective date of this final rule because this final rule replaces the 
measures implemented in the temporary rule.

AMs

    For the commercial sector, the FMP contains both in-season and 
post-season AMs. The in-season AM closes the commercial sector when the 
commercial ACT (commercial quota) is reached or projected to be 
reached. Additionally, if the commercial ACL is exceeded despite the 
quota closure, the post-season AM reduces the following year's 
commercial ACT (commercial quota) by the amount of the prior-year's 
commercial ACL overage.
    Prior to the promulgation of the temporary rule, the FMP contained 
no in-season AM for the recreational sector, but only a post-season AM. 
The recreational post-season AM provides that if the recreational ACL 
is exceeded, NMFS will reduce the length of the following year's 
fishing season by the amount necessary to ensure that recreational 
landings do not exceed the recreational ACT during the following year. 
The temporary rule established an in-season AM for the recreational 
sector to prohibit the recreational harvest of gray triggerfish (a 
recreational sector closure) after the recreational ACT is reached or 
projected to be reached.
    Consistent with the temporary rule, this final rule replaces the 
current post-season AM with an in-season AM for the recreational 
sector, and will close that sector when its ACT is reached or projected 
to be reached.
    This rule also adds a post-season AM in the form of an overage 
adjustment that would apply if the recreational ACL is exceeded and 
gray triggerfish are overfished. This post-season AM would reduce the 
recreational ACL and ACT for the following year by the amount of the 
ACL overage in the prior fishing year, unless the best scientific 
information available determines that a greater, lesser, or no overage 
adjustment is necessary.

Commercial Trip Limit

    There is currently no trip limit for the commercial sector. This 
rule establishes a commercial trip limit for gray triggerfish of 12 
fish. The trip limit applies until the commercial ACT (commercial 
quota) is reached or projected to be reached during a fishing year and 
the commercial sector is closed.

Seasonal Closure of the Commercial and Recreational Sectors

    This final rule establishes a seasonal closure of the gray 
triggerfish commercial and recreational sectors in the Gulf from June 
through July, each year. This fixed seasonal closure assists the 
rebuilding of the gray triggerfish stock by prohibiting harvest during 
the gray triggerfish peak spawning season. Additionally, June and July 
are the months that have the highest percentage of recreational 
landings.

Recreational Bag Limit

    Gray triggerfish currently have a recreational bag limit that is 
part of the 20-fish aggregate reef fish bag limit. However, the 
aggregate recreational bag limit has no specific limit for recreational 
gray triggerfish landings, meaning all 20 fish harvested under the bag 
limit could be gray triggerfish. This final rule establishes a 2-fish 
gray triggerfish recreational bag limit within the 20-fish aggregate 
reef fish bag limit. This bag limit would apply until the recreational 
ACT is reached or projected to be reached during a fishing year and the 
recreational sector is closed.

Other Action Contained in Amendment 37

    Amendment 37 revises the rebuilding plan for gray triggerfish by 
modifying the mortality rate and resulting time period to rebuild the 
gray triggerfish stock. The gray triggerfish stock is currently in the 
5th year of a rebuilding plan that began in 2008. Amendment 37 modifies 
the rebuilding plan in response to the results from the 2011 Southeast 
Data, Assessment, and Review (SEDAR) stock assessment and the 
subsequent review and recommendations by the SSC for the gray 
triggerfish ABC. The modified rebuilding plan is based on a constant 
fishing mortality rate that does not exceed the fishing mortality rate 
at OY and will rebuild the stock by the end of 2017.

Comments and Responses

    NMFS received nine comment letters from individuals, two 
submissions from non-governmental organizations, and two submissions 
from Federal agencies on Amendment 37 and the proposed rule. The 
Federal agencies indicated they had no objection to Amendment 37 or the 
proposed rule. Specific comments related to the actions contained in 
Amendment 37 and the proposed rule are summarized and responded to 
below.
    Comment 1: The proposed combination of commercial management 
measures in Amendment 37 (June through July seasonal closure

[[Page 27086]]

and a 12-fish commercial trip limit), are not projected to constrain 
harvest below the commercial ACT and ACL, meaning an in-season closure 
will likely be necessary. A far more effective approach would be a 
combination of options that result in projected landings that stay 
below the ACT and certainly below the ACL. This would result in more 
predictability for commercial fishermen and reduce the risk of 
exceeding the ACL and compromising the rebuilding schedule.
    Response: NMFS has determined that the full combination of 
management measures selected by the Council adequately reduces the risk 
of exceeding the ACL and will ensure that the rebuilding plans remains 
on schedule. Although the seasonal closure and trip limit, standing 
alone, are not projected to constrain harvest below the commercial ACT 
and ACL, there is an in-season AM that closes the commercial sector 
when it reaches or is projected to reach the ACT and there is a 5 
percent buffer between the commercial ACL and ACT. This buffer 
addresses the uncertainty in projecting when the ACT will be reached 
and reduces the risk of exceeding the commercial ACL.
    NMFS also determined that the Council sufficiently considered the 
predictability for commercial fishermen in selecting seasonal closure 
and trip limit. The Council reviewed 16 combinations of trips limits 
and seasonal closures and determined that the preferred alternatives 
best addressed the needs of fishermen while ensuring that the grey 
trigger stock continues to rebuild as scheduled. Although the 
projections indicate that an in-season closure will be necessary, this 
closure would occur in the fall, which is near the end of the fishing 
year.
    Comment 2: The proposed recreational management measures in 
Amendment 37 (June through July seasonal closure and a 2-fish bag 
limit) result in projected recreational landings that remain below the 
recreational ACT, which is highly desirable because in-season 
recreational landings data are not as timely and accurate as commercial 
data, making in-season closures a less effective management tool for 
the recreational sector than for the commercial sector. However, a 
concern remains because the underlying analysis is based on an 
assumption that fishermen comply with the 14-inch (35.6-cm), fork 
length (FL), minimum size limit. In 2011, the SEDAR 9 update assessment 
analysis indicated that a significant portion of recreational landings 
were smaller than the 14-inch (35.6-cm), FL, minimum size limit over 
the last 3 years. Non-compliance with the minimum size limit may cause 
the actual reduction in landings to be less than the SEDAR model 
predictions, resulting in recreational landings that may exceed the ACT 
and ACL. The Council and NMFS should conduct outreach and education to 
improve compliance with the minimum size limit. However, in the 
meantime, NMFS and the Council should consider the proportion of 
undersized fish landed to avoid exceeding the gray triggerfish ACL.
    Response: NMFS recognizes that prior analysis indicated that 
fishers are landing gray triggerfish that are smaller than the 14-inch 
(35.6-cm) minimum size limit and that this may cause the actual 
reduction in landings to be less than the SEDAR model predictions. 
However, in addition to the seasonal closure and bag limit, this rule 
will modify the recreational AMs to allow for an in-season closure if 
necessary. In-season recreational landings are monitored through the 
Marine Recreational Information Program, which incorporates information 
on all sizes of fish landed. Further, the closure authority is based on 
the recreational ACT and there is a 10 percent buffer between the ACL 
and ACT. This buffer addresses uncertainty in the recreational landings 
data that may make it more difficult to accurately project when the 
recreational ACT will be met and helps ensure that the recreational ACL 
will not be exceeded.
    With regard to outreach and education to improve compliance with 
the minimum size limit, that confusion may exist among Gulf fishers 
measuring gray triggerfish because of inconsistences between state and 
Federal size limits. In August of 2012, NMFS and the Council developed 
a guidance document to provide further clarification in identifying and 
measuring gray triggerfish. The document was sent to all Gulf States 
and is also listed on the Southeast Regional Office Web site at: http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/reef_fish/2013/am37/documents/pdfs/gray_triggerfish_outreach.pdf. The document 
includes the proper method of identifying and measuring gray 
triggerfish, and explains why compliance with the size limits is 
important.
    Comment 3: Because of the urgent need to reduce gray triggerfish 
catch levels in order to get the rebuilding plan on track, NMFS should 
approve and implement Amendment 37. However, NMFS should also 
immediately instruct the Council that some level of discard mortality 
should be factored into both the catch setting and catch monitoring 
process for gray triggerfish.
    Response: NMFS disagrees that the Council needs to factor in some 
level of discard mortality in the catch setting and catch monitoring 
process for gray triggerfish. The NMFS decision tool included a discard 
mortality of zero percent for Amendment 37 because, unlike many other 
reef fish species the Council manages, gray triggerfish are considered 
less susceptible to discard mortality. Previous assessments of gray 
triggerfish, including SEDAR 9, determined that the discard mortality 
rate was minimal (one to two percent) and that using this rate made 
little difference in the model outputs. Thus, these assessments used a 
zero-percent discard mortality rate when calculating stock status. For 
consistency, the SSC also modeled discard mortality at zero percent. 
However, to account for scientific uncertainty in the model, the SSC 
determined that a buffer should be included when setting gray 
triggerfish catch limits and thus, set the ABC at 305,300 lb (269,887 
kg), which is 25 percent below the overfishing limit of 401,600 lb 
(182,163 kg) recommended by the SEDAR 9 update assessment.

Changes from the Proposed Rule

    On April 17, 2013, NMFS published in the Federal Register an 
interim final rule to reorganize the regulations in 50 CFR part 622 for 
the Gulf of Mexico, South Atlantic, and the Caribbean (78 FR 22950). 
That interim final rule did not create any new rights or obligations; 
it reorganized the existing regulatory requirements in the Code of 
Federal Regulations into a new format. This final rule incorporates 
this new format into the regulatory text; it does not change the 
specific regulatory requirements that were contained in the proposed 
rule. Therefore, as a result of this reorganization, the gray 
triggerfish commercial quota regulatory text previously located at 
Sec.  622.42(a)(1)(vi) is now at Sec.  622.39(a)(1)(vi), the seasonal 
closure text located at Sec.  622.34(w) is now at Sec.  622.34(f), the 
commercial trip limit text located at Sec.  622.44(g) is now at Sec.  
622.43(b), the recreational bag limit text located at Sec.  
622.39(b)(1)(v) is now at Sec.  622.38(b)(5), and the ACL/ACT/AM text 
located at Sec.  622.49(a)(2) is now at Sec.  622.41(b).

Classification

    The Regional Administrator, Southeast Region, NMFS has determined 
that this final rule is necessary for the conservation and management 
of the species within Amendment 37 and is consistent with

[[Page 27087]]

the FMP, the Magnuson-Stevens Act, and other applicable law.
    This final 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 during the proposed rule stage that this rule would not 
have a significant economic impact on a substantial number of small 
entities. The factual basis for this determination was published in the 
proposed rule and is not repeated here. No comments were received 
regarding the certification and NMFS has not received any new 
information that would affect its determination. As a result, a final 
regulatory flexibility analysis was not required and none was prepared.
    The AA finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-
day delay in effectiveness for the revised commercial and recreational 
ACLs and ACTs and the recreational sector AMs for gray triggerfish 
contained in this final rule at Sec. Sec.  622.39(a)(1)(vi) and 
622.41(b). The rest of the management measures contained in this final 
rule will be effective 30 days after publication in the Federal 
Register. Allowing for a 30-day delay in effectiveness of the gray 
triggerfish ACLs, ACTs, and recreational sector AMs would be contrary 
to the public interest because delaying their implementation would 
likely allow overfishing of gray triggerfish, resulting in more severe 
reductions in gray triggerfish catch levels in the future, which could 
have higher socioeconomic impacts on gulf reef fish fishers. A 
temporary rule published on May 14, 2012 (77 FR 28308) and extended on 
November 9, 2012 (77 FR 67303) implemented these same reduced ACLs and 
ACTs, and similar recreational AMs in order to end overfishing of gray 
triggerfish and rebuild the stock, and this final rule replaces those 
interim measures currently in effect. Any delay in implementing these 
reduced catch limits would undermine the intent of this rule, Amendment 
37, and the interim measures currently in effect.

List of Subjects in 50 CFR Part 622

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

    Dated: May 3, 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 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, paragraph (f) is added to read as follows:


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

* * * * *
    (f) Seasonal closure of the commercial and recreational sectors for 
gray triggerfish. The commercial and recreational sectors for gray 
triggerfish in or from the Gulf EEZ are closed from June 1 through July 
31, each year. During the closure, all harvest or possession in or from 
the Gulf EEZ of gray triggerfish is prohibited and the sale and 
purchase of gray triggerfish taken from the Gulf EEZ is prohibited.

0
3. In Sec.  622.38, paragraph (b)(5) is revised to read as follows:


Sec.  622.38  Bag and possession limits.

* * * * *
    (b) * * *
    (5) Gulf reef fish, combined, excluding those specified in 
paragraphs (b)(1) through (b)(4) and paragraphs (b)(6) through (b)(7) 
of this section--20. In addition, within the 20-fish aggregate reef 
fish bag limit, no more than two fish may be gray triggerfish.
* * * * *

0
4. In Sec.  622.39, paragraph (a)(1)(vi) is revised to read as follows:


Sec.  622.39  Quotas.

* * * * *
    (a) * * *
    (1) * * *
    (vi) Gray triggerfish--60,900 lb (27,624 kg), round weight.
* * * * *

0
5. In Sec.  622.41, paragraph (b) is revised to read as follows:


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

* * * * *
    (b) Gray triggerfish--(1) Commercial sector. If commercial 
landings, as estimated by the SRD, reach or are projected to reach the 
commercial ACT (commercial quota) specified in Sec.  622.39(a)(1)(vi), 
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. 
In addition, if despite such closure, commercial landings exceed the 
commercial ACL, the AA will file a notification with the Office of the 
Federal Register, at or near the beginning of the following fishing 
year to reduce the commercial ACL and ACT (commercial quota) for that 
following year by the amount the prior-year ACL was exceeded. The 
commercial ACL is 64,100 lb (29,075 kg), round weight.
    (2) Recreational sector. (i) Without regard to overfished status, 
if gray triggerfish recreational landings, as estimated by the SRD, 
reach or are projected to reach the applicable ACT specified in 
paragraph (b)(2)(iii) of this section, 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. On and after the 
effective date of such a notification, the bag and possession limit of 
gray triggerfish in or from the Gulf EEZ is zero. This bag and 
possession limit applies in the Gulf on board a vessel for which a 
valid Federal charter vessel/headboat permit for Gulf reef fish has 
been issued, without regard to where such species were harvested, i.e. 
in state or Federal waters.
    (ii) In addition to the measures specified in paragraphs (b)(2)(i) 
of this section, if gray triggerfish recreational landings, as 
estimated by the SRD, exceed the applicable ACL specified in paragraph 
(b)(2)(iii) of this section, and gray triggerfish are overfished, based 
on the most recent Status of U.S. Fisheries Report to Congress, the AA 
will file a notification with the Office of the Federal Register, at or 
near the beginning of the following fishing year to reduce the ACL and 
the ACT for that following year by the amount of the ACL overage in the 
prior fishing year, unless the best scientific information available 
determines that a greater, lesser, or no overage adjustment is 
necessary.
    (iii) The recreational ACL for gray triggerfish is 241,200 lb 
(109,406 kg), round weight. The recreational ACT for gray triggerfish 
is 217,100 lb (98,475 kg), round weight. Recreational landings will be 
evaluated relative to the ACL based on a moving multi-year average of 
landings, as described in the FMP.
* * * * *

0
6. In Sec.  622.43, paragraph (b) is added to read as follows:

[[Page 27088]]

Sec.  622.43  Commercial trip limits.

* * * * *
    (b) Gray triggerfish. Until the commercial ACT (commercial quota) 
specified in Sec.  622.39(a)(1)(vi) is reached--12 fish. See Sec.  
622.39(b) for the limitations regarding gray triggerfish after the 
commercial ACT (commercial quota) is reached.
[FR Doc. 2013-11072 Filed 5-8-13; 8:45 am]
BILLING CODE 3510-22-P