[Federal Register Volume 82, Number 141 (Tuesday, July 25, 2017)]
[Rules and Regulations]
[Pages 34574-34581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15590]
[[Page 34573]]
Vol. 82
Tuesday,
No. 141
July 25, 2017
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 622
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef
Fish Fishery of the Gulf of Mexico; Hogfish Management Measures in
Amendment 43; Final Rule
Federal Register / Vol. 82 , No. 141 / Tuesday, July 25, 2017 / Rules
and Regulations
[[Page 34574]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 160630574-7542-02]
RIN 0648-BG18
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Reef Fish Fishery of the Gulf of Mexico; Hogfish Management Measures in
Amendment 43
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS implements management measures described in Amendment 43
to the Fishery Management Plan for the Reef Fish Resources of the Gulf
of Mexico (Gulf)(FMP), as prepared by the Gulf of Mexico Fishery
Management Council (Gulf Council)(Amendment 43). This final rule
revises the geographic range of the fishery management unit (FMU) for
Gulf hogfish (the West Florida stock) consistent with the South
Atlantic Fishery Management Council's (South Atlantic Council) boundary
between the Florida Keys/East Florida and West Florida stocks, sets the
annual catch limit (ACL) for the West Florida stock, increases the
minimum size limit for the West Florida stock, and removes the
powerhead exception for harvest of hogfish in the Gulf reef fish
stressed area. This final rule also corrects a reference in the
regulatory definition for charter vessel. The purpose of this final
rule is to manage hogfish using the best scientific information
available.
DATES: This final rule is effective August 24, 2017.
ADDRESSES: Electronic copies of Amendment 43 may be obtained from
www.regulations.gov, or from the Southeast Regional Office Web site at
http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/reef_fish/2016/am43/index.html. Amendment 43 includes an environmental
assessment, a fishery impact statement, a Regulatory Flexibility Act
(RFA) analysis, and a regulatory impact review.
FOR FURTHER INFORMATION CONTACT: Peter Hood, NMFS Southeast Regional
Office, telephone: 727-824-5305, email: [email protected].
SUPPLEMENTARY INFORMATION: NMFS and the Gulf Council manage the Gulf
reef fish fishery, which includes hogfish, under the FMP. The FMP was
prepared by the Gulf Council and is implemented by NMFS through
regulations at 50 CFR part 622 under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens
Act)(16 U.S.C. 1801 et seq.).
On November 4, 2016, NMFS published a notice of availability for
Amendment 43 and requested public comment (81 FR 76908, November 4,
2016). On November 23, 2016, NMFS published a proposed rule for
Amendment 43 and requested public comment (81 FR 84538, November 23,
2016). The proposed rule and Amendment 43 outline the rationale for the
actions contained in this final rule. A summary of the management
measures described in Amendment 43 and implemented by this final rule
is provided below.
Management Measures Contained in This Final Rule
Amendment 43 and this final rule revise the hogfish FMU managed by
the FMP to the West Florida hogfish stock, which includes hogfish in
the Gulf exclusive economic zone (EEZ), except south of the 25[deg]09'
N. lat. line off the west coast of Florida; specify the ACL for the
West Florida hogfish stock; increase the minimum size limit for the
West Florida hogfish stock; and remove the powerhead exception for the
harvest of hogfish in the Gulf reef fish stressed area.
Fishery Management Unit
Hogfish occur throughout the Gulf but are caught primarily off the
Florida west coast. The most recent stock assessment for hogfish, the
Southeast Data, Assessment, and Review 37 (SEDAR 37), divided the
hogfish stock into three stocks based on genetic analysis as follows:
The West Florida stock, the Florida Keys/East Florida stock, and the
Georgia through North Carolina stock. The West Florida stock is
completely within the jurisdiction of the Gulf Council and the Georgia
through North Carolina stock is completely within the jurisdiction of
the South Atlantic Council. The Florida Keys/East Florida stock crosses
the two Councils' jurisdictional boundary, with a small portion of the
stock extending into the Gulf Council's jurisdiction off the west coast
of Florida. The West Florida stock is not overfished or undergoing
overfishing, the Florida Keys/East Florida stock is overfished and
experiencing overfishing, and the status of the Georgia through North
Carolina stock is unknown.
The South Atlantic Council developed and submitted for review by
the Secretary of Commerce (Secretary) a rebuilding plan for the Florida
Keys/East Florida hogfish stock through Amendment 37 to the FMP for the
Snapper-Grouper Fishery of the South Atlantic Region (Amendment 37). In
Amendment 43 and this final rule, the Gulf Council revises the hogfish
FMU in the Gulf to be the West Florida stock, and defines the
geographic range of this stock consistent with the South Atlantic
Council's boundary between the Florida Keys/East Florida and West
Florida hogfish stocks in Amendment 37. The Gulf Council will manage
hogfish (the West Florida stock) in the Gulf EEZ except south of the
25[deg]09' N. lat. line off the west coast of Florida, which is near
Cape Sable. The South Atlantic Council will manage hogfish (the Florida
Keys/East Florida stock) in the Gulf EEZ south of 25[deg]09' N. lat.
off the west coast of Florida, and in the South Atlantic EEZ to the
state border of Florida and Georgia. The boundary line at 25[deg]09' N.
lat. off the west coast of Florida is currently used by the Florida
Fish and Wildlife Conservation Commission (FWC) as a regulatory
boundary for certain state-managed species. Using a pre-existing
management boundary increases enforceability and helps fishermen comply
with management measures by simplifying regulations across adjacent
management jurisdictions.
In accordance with section 304(f) of the Magnuson-Stevens Act, the
Gulf Council requested that the Secretary designate the South Atlantic
Council as the responsible Council for management of the Florida Keys/
East Florida hogfish stock in Gulf Federal waters south of the
25[deg]09' N. lat. line off the west coast of Florida. On February 2,
2017, the Secretary approved Amendment 43 and the Gulf Council's
request. The Secretary approved Amendment 37 on December 28, 2016, and
NMFS is publishing a final rule implementing Amendment 37 in the same
issue of the Federal Register as this final rule on July 25, 2017.
Therefore, the Gulf Council continues to manage hogfish in Federal
waters in the Gulf, except in Federal waters south of this boundary,
and the South Atlantic Council establishes management measures for the
entire range of the Florida Keys/East Florida hogfish stock, including
in Gulf Federal waters south of 25[deg]09' N. lat. off the west coast
of Florida, which is near Cape Sable. All recreational anglers and
federally permitted vessels must comply with the applicable management
measures in the final rule implementing
[[Page 34575]]
Amendment 37 when fishing for hogfish in Gulf Federal waters south of
25[deg]09' N. lat. off the west coast of Florida.
Commercial vessels, charter vessels, and headboats fishing for
hogfish in Gulf Federal waters, i.e., north and west of the
jurisdictional boundary between the Gulf and South Atlantic Councils,
as defined at 50 CFR 600.105(c), are still required to have the
appropriate Federal Gulf reef fish permits, and vessels fishing for
hogfish in South Atlantic Federal waters, i.e., south and east of the
jurisdictional boundary, are still required to have the appropriate
Federal South Atlantic snapper-grouper permits. Those permit holders
are still required to follow the sale and reporting requirements
associated with the respective permits.
Annual Catch Limit
The SEDAR 37 stock assessment projections produced annual yields
for the overfishing limit (OFL) and acceptable biological catch (ABC)
level for the West Florida hogfish stock for the 2016 through 2026
fishing years. However, because of increasing uncertainty with long-
range projections, the Gulf Council's Scientific and Statistical
Committee (SSC) only provided OFL and ABC recommendations for the West
Florida hogfish stock for the first 3 years, 2016 through 2018. The
Gulf Council's SSC made constant catch OFL and ABC recommendations
based on the averages of the 2016-2018 OFLs and ABCs. For 2019 and
subsequent years, the SSC recommended an OFL and ABC set at the
equilibrium yield levels.
This final rule sets the ACL for the West Florida hogfish stock
based on the ABC recommendations made by the Gulf Council's SSC at
219,000 lb (99,337 kg), round weight, for the 2017 and 2018 fishing
years and at the equilibrium yield level of 159,300 lb (72,257 kg),
round weight, in 2019 and subsequent fishing years. The Council decided
to discontinue the designation of an annual catch target (ACT), because
it is not used in the current accountability measures (AMs) or for
other management purposes.
Minimum Size Limit
Although the West Florida hogfish stock is not overfished or
undergoing overfishing, the stock could be subject to seasonal closures
if landings exceed the stock ACL and AMs are triggered. This final rule
increases the minimum size limit to harvest West Florida hogfish in
Federal waters from 12 inches (30.5 cm), fork length (FL), to 14 inches
(35.6 cm), FL, to reduce the directed harvest rate and reduce the
probability of exceeding the ACL.
Powerhead Exemption
Since 2011, hogfish was the only Gulf species subject to the
powerhead exemption, which was a regulatory holdover from when hogfish
were previously listed in the regulations as a ``species in the fishery
but not in the reef fish fishery management unit.'' This final rule
removes the provision that exempted hogfish from the prohibition on the
use of powerheads to take Gulf reef fish in the reef fish stressed area
and, therefore, prohibits the harvest of hogfish with powerheads in the
stressed area. By removing the powerhead exemption for hogfish, hogfish
are subject to the same regulations for Gulf reef fish in the stressed
area as other species in the reef fish FMU.
Management Measures Contained in Amendment 43 but Not Codified Through
This Final Rule
Amendment 43 also specifies additional status determination
criteria (SDC) for the West Florida hogfish stock. The only SDC
previously implemented for hogfish in the Gulf was the overfishing
threshold, or maximum fishing mortality threshold (MFMT).
In Amendment 43, the Council selected the spawning potential ratio
(SPR) as the basis for a maximum sustainable yield (MSY) proxy.
Amendment 43 uses the equilibrium yield based on an overfishing
threshold of the fishing morality rate (F) at 30 percent of the
spawning potential ratio (F30%SPR) as a proxy for
MSY. This proxy is consistent with that used in SEDAR 37 and with the
MSY proxy commonly used for reef fish species.
Both the hogfish MFMT and minimum stock size threshold (MSST) are
based on this MSY proxy. The current MFMT value of
F30%SPR for hogfish is already consistent with
the MSY proxy and is not being changed in Amendment 43. In Amendment
43, the Gulf Council determined that setting the MSST at 75 percent of
the spawning stock biomass (SSB) capable of producing an equilibrium
yield when fished at F30%SPR
(SSB30%SPR) balanced the likelihood of declaring
the stock as overfished as a result of natural variations in stock size
with being able to allow the stock to recover quickly from an
overfished state.
Comments and Responses
A total of 26 unique comments were received on the notice of
availability and proposed rule for Amendment 43. Half of the comments
(13 comments) were in favor of the proposed management measures for the
West Florida stock. Some comments were outside the scope of Amendment
43 and the proposed rule; these included comments that proposed or
discussed adding hogfish to the individual fishing quota program;
creating regulations for spearguns to harvest reef fish; and creating a
Florida Keys/East Florida and West Florida boundary for all reef fish
species. Specific comments related to the actions in Amendment 43 and
the proposed rule, as well as NMFS' respective responses, are
summarized below.
Comment 1: The single hogfish stock should not be split, because
establishing three different stocks of hogfish with different
regulations will lead to confusion when harvesting hogfish.
Response: NMFS disagrees that hogfish should continue to be managed
as a single stock because the best scientific information available
indicates that hogfish in the Gulf and South Atlantic are comprised of
three separate stocks. As explained above, the 2014 hogfish stock
assessment (SEDAR 37) divided the single hogfish stock in the southeast
U.S. into three stocks based on genetic information. The Gulf and South
Atlantic Councils' SSCs reviewed SEDAR 37 and agreed that there are
three stocks of hogfish. Having different management measures for the
West Florida stock and the Florida Keys/East Florida stock may cause
some confusion for those who fish near the management boundary that
separates the two stocks. However, different management measures are
necessary because the status of these separate hogfish stocks is
different. Of particular concern is the Florida Keys/East Florida
stock, which is overfished and undergoing overfishing. Because only a
small portion of the Florida Keys/East Florida hogfish stock occurs in
the Gulf Council's jurisdiction, the Gulf Council and the South
Atlantic Council agreed that the South Atlantic Council would develop
and implement measures to end overfishing of and rebuild the Florida
Keys/East Florida stock.
Comment 2: It is unclear which permits apply when harvesting
Florida Keys/East Florida hogfish and how the different regulations
apply when fishing for hogfish in different management areas.
Response: As explained in the proposed rule and in the preamble
above, vessels fishing for hogfish in Gulf Federal waters (north and
west of the jurisdictional boundary between the Gulf and South Atlantic
Councils, as defined at 50 CFR 600.105(c)), are still required to have
the appropriate Federal Gulf reef fish permits, and vessels
[[Page 34576]]
fishing for hogfish in South Atlantic Federal waters (south and east of
the jurisdictional boundary) are still be required to have the
appropriate Federal South Atlantic snapper-grouper permits. For
example, if a commercial vessel, charter vessel, or headboat is fishing
for hogfish at Pulley Ridge, which is in Federal waters of the Gulf off
the west coast of Florida and south of 25[deg]09' N. lat., the vessel
is required to possess the applicable Federal Gulf commercial or
charter vessel/headboat permit to harvest hogfish. Federal permit
holders will continue to be required to follow the existing sale and
logbook reporting requirements associated with the respective permits.
Maintaining existing permitting requirements minimizes confusion and
avoids unnecessarily burdening those fishing for hogfish under Federal
permits, while still meeting both Councils' management needs. This
final rule includes additional language in 50 CFR 622.20 to clarify
that the applicable Gulf Federal permits are required when harvesting
Florida Keys/East Florida hogfish in the Gulf EEZ.
Fishermen must adhere to the regulations in place for the area in
which they are fishing. If fishing for hogfish in Federal waters off
the west coast of Florida and north of 25[deg]09' N. lat., then the
Gulf regulations for the West Florida stock apply. If fishing in
Federal waters off the west coast of Florida and south of 25[deg]09' N.
lat., then the South Atlantic regulations for the Florida Keys/East
Florida hogfish stock apply. Fishermen fishing for hogfish both north
and south of 25[deg]09' N. lat. during the same trip, must ensure they
are in compliance with the applicable regulations as they move from one
area to another. Similarly, fishermen transiting through an area must
follow the hogfish regulations that apply in that area, regardless of
where the hogfish were harvested.
Comment 3: It is not clear why the ACL for the West Florida hogfish
stock decreases from 219,000 lb (99,337 kg), round weight, for the 2017
and 2018 fishing years to 159,300 lb (72,257 kg), round weight, in the
2019 fishing year, when the stock is not overfished or undergoing
overfishing. It is also not clear whether the decrease in the ACL will
allow the fishery to continue to achieve optimum yield.
Response: The West Florida stock ACL decreases in 2019 based on the
information provided in SEDAR 37 and the ABC recommendations provided
by the Gulf Council's SSC. The results of SEDAR 37 indicate that the
biomass of the West Florida hogfish stock is currently above the level
needed to maintain MSY, and can therefore support higher catch levels
in the short-term, but then need to decrease over time. The ABC
recommendations provided by the Gulf Council's SSC addressed the
uncertainty associated with long-range projections by providing a
higher constant ABC recommendation through the 2018 fishing year
(219,000 lb (99,337 kg), round weight), and a lower long-term constant
ABC for the following fishing years if no new assessment has been
completed (159,300 lb (72,257 kg), round weight). The Gulf Council set
the ACLs equal to the ABCs recommended by the SSC, and requested a
hogfish stock assessment update in 2018 to reassess the long-term catch
recommendations. By setting the catch levels equal to the ABCs, the
Council has allowed for the highest yield possible under the current
understanding of the stock status and the future projections. The lower
ABC and catch level in 2019 and in subsequent fishing years is a
precautionary measure to help ensure long-term sustainable catch levels
if a new stock assessment is not completed as scheduled.
Comment 4: Because of more restrictive management measures proposed
for the Florida Keys/East Florida hogfish stock, fishing effort may
shift to the West Florida hogfish stock.
Response: It is difficult to predict if fishermen will shift their
effort from one stock to the other. However, if fishermen direct
additional effort toward the West Florida hogfish stock, this stock has
an ACL and an AM to prevent overfishing and to protect this stock from
becoming overfished. The AM for West Florida hogfish stock is triggered
if the sum of commercial and recreational landings exceed the ACL
during a fishing year. Once the AM is triggered, then during the
following fishing year, the commercial and recreational sectors will be
closed to fishing if the sum of commercial and recreational hogfish
landings reaches or is projected to reach the ACL. The Gulf Council
also increased the minimum size limit from 12 inches (30.5 cm), FL, to
14 inches (35.6 cm), FL, which is expected to slow the rate of harvest
and reduce the likelihood of a closure as the result of reaching the
ACL.
Comment 5: Some commenters questioned the need to change the
minimum size limit for the West Florida stock from 12 inches (30.5 cm),
FL, to 14 inches (35.6 cm), FL, given that the stock is not overfished
or undergoing overfishing. Another commenter suggested that the final
rule should increase the minimum size limit to 16 inches (40.6 cm), FL,
to protect male hogfish, and fishing should be closed when hogfish are
spawning to protect the West Florida stock. This commenter also stated
that Amendment 43 should discuss the size when hogfish transition from
females to males and discuss a closed spawning season for hogfish.
Response: The Gulf Council decided to raise the minimum size limit
to 14 inches (35.6 cm), FL, because this is expected to reduce the
harvest rates by the commercial and recreational sectors, and
therefore, reduce the likelihood of a closure as the result of reaching
the ACL. This minimum size limit increase will also allow hogfish to
grow larger and have additional spawning opportunities before they can
be harvested and landed.
NMFS disagrees that the minimum size limit should be increased to
16 inches (40.6 cm), FL, and that there should be a closure when
hogfish are spawning. The Gulf Council evaluated a 16-inch (40.6-cm),
FL, minimum size limit but for the reasons stated above decided to
increase the minimum size limit from 12 inches (30.5 cm), FL, to 14
inches (35.6 cm), FL. Amendment 43 notes that the size of female
maturity (estimated size at 50 percent maturity) occurs at between 6
and 7.5 inches (15.2 and 19.1 cm), FL, and the size of male transition
(estimated size at 50 percent having transitioned to males) occurs at
16.6 inches (42.2 cm), FL. Raising the minimum size limit to 16 inches
(40.6 cm), FL, would further reduce the harvest rate and allow more
hogfish to transition to males. However, this option was not supported
by the Gulf Council's Reef Fish Advisory Panel, and during public
hearings several fishermen testified that moving to a 16-inch (40.6
cm), FL, size limit was too great a change and would lead to large
numbers of discards. The Council determined, and NMFS agrees, that
because the West Florida stock is healthy, it is unnecessary to
increase the minimum size limit to 16 inches (40.6 cm), FL.
Amendment 43 also discusses the hogfish spawning season (December
through April); however, the Gulf Council did not consider a seasonal
closure to protect spawning fish because the West Florida stock is
neither overfished nor undergoing overfishing. The measures implemented
by this final rule are expected to prevent overfishing but also allow a
year-round fishing season for the West Florida stock of hogfish, which
will benefit fishermen.
Comment 6: The actual MSY value for the West Florida hogfish stock
should be used rather than a proxy.
[[Page 34577]]
Response: The decision on whether to use MSY or a proxy, such as
the yield at F30%SPR, is made during the stock
assessment process and subsequent review. This decision is based on the
type of assessment model and the confidence the assessment scientists
have in factors such as recruitment. Using proxies when MSY is not
known or when confidence in the estimate of MSY is uncertain is a
common practice. In Amendment 43, the Council considered using the
point estimate of MSY from the assessment, but chose to use the proxy
instead because of uncertainty in the MSY estimates caused by the lack
of a discernable relationship between the stock biomass and
recruitment. The Gulf Council's decision is consistent with the SSC's
ABC recommendations, which are based on this proxy.
Comment 7: Discards need to be accounted for in setting the ACLs.
Response: Discard mortality rates were accounted for in the SEDAR
37 stock assessment, resultant stock projections, and calculations of
the ACLs. Different discard mortality rates were developed for the
various sectors and components of the Gulf reef fish fishery (e.g.,
commercial and recreational, spearfishing, and hook-and-line). However,
in SEDAR 37, discards were not considered a major source of mortality
for hogfish. As discussed in Amendment 43, SEDAR 37 set the discard
mortality rate at 100 percent for spearfishing, but because this gear
type uses line-of-sight in harvesting fish, the number of regulatory
discards was considered to be low. Therefore, hogfish harvested by
spearfishing is predominantly counted as catch. Hook-and-line gear
catches considerably fewer hogfish than spearfishing, and the discard
mortality rate for hogfish attributed to hook-and-line gear was
estimated at 10 percent, which was considered low.
Comment 8: Other than the increase in the minimum size limit, no
other action for hogfish should be taken. There should be no closed
season, reduction in the recreational bag limit, or establishment of a
commercial trip limit.
Response: This final rule does not create or revise a closed
season, reduce the recreational bag limit, or set a commercial trip
limit for the West Florida hogfish stock. In Amendment 37, the South
Atlantic Council established a closed season for the Florida Keys/East
Florida hogfish stock and, for both the Florida Keys/East Florida and
Georgia through North Carolina hogfish stocks, the South Atlantic
Council reduced the recreational bag limit, increased in the minimum
size limits, and established commercial trip limits. These actions are
discussed in Amendment 37 (http://sero.nmfs.noaa.gov/sustainable_fisheries/s_atl/sg/2015/am37/index.html), its associated
proposed rule (81 FR 91104, December 16, 2016), and its associated
final rule published in the same issue of the Federal Register as this
final rule on July 25, 2017.
Comment 9: It is unclear how eliminating the powerhead exemption
for hogfish in the Gulf reef fish stressed area will help the West
Florida hogfish stock and if there is any reason for eliminating this
exemption other than making the regulations the same for all Gulf reef
fish species.
Response: As discussed in Amendment 43, removing the exemption for
allowing the harvest of hogfish using powerheads is likely to have a
minimal impact on the West Florida hogfish stock, as it will only
affect spearfishing for this species in the Gulf reef fish stressed
area, defined at 50 CFR 622.35(a). Additionally, powerheads are
typically not used to harvest hogfish. The primary purpose of this
action is to remove an exemption that should have been removed when
hogfish was originally included in the reef fish FMU. However, this
action may also improve enforcement by applying the powerhead
prohibition to all reef fish in the Gulf reef fish stressed area.
Additional Change to Codified Text Not in Amendment 43
In 2013, NMFS reorganized the regulations in 50 CFR part 622 to
improve the organization of the regulations and make them easier to use
(78 FR 57534, September 19, 2013). However, during that reorganization,
a regulatory reference in the definition of ``charter vessel'' in Sec.
622.2 was inadvertently not updated as needed. The charter vessel
definition previously included a reference to Sec. 622.4(a)(2) as the
provision that specifies the required commercial permits under the
various fishery management plans. Although Sec. 622.4(a)(2) addressed
all of the required commercial permits before the 2013 reorganization,
after the reorganization that provision referred to operator permits
only. The reorganization of the regulations removed the various
commercial permit provisions from Sec. 622.4 and placed them in the
appropriate subparts throughout part 622. This final rule updates the
regulatory reference in the definition of charter vessel in Sec. 622.2
to refer to any commercial permits ``as required under this part.''
This update in language makes the regulatory reference in the
definition of charter vessel consistent with the current regulatory
definition of headboat in Sec. 622.2.
Classification
The Regional Administrator for the NMFS Southeast Region has
determined that this final rule is consistent with the FMP, the
Magnuson-Stevens Act, and other applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
The Magnuson-Stevens Act provides the statutory basis for this
final rule. Amendment 43 and the preamble to this final rule provide a
statement of the need for and objectives of this final rule. No
duplicative, overlapping, or conflicting Federal rules have been
identified. No new reporting, record-keeping, or other compliance
requirements are introduced by this final rule.
In compliance with section 604 of the RFA, NMFS prepared a final
regulatory flexibility analysis (FRFA) for this final rule. The FRFA
follows.
No significant economic issues were raised by public comment, and
therefore, no changes to this final rule were made in response to
public comments of an economic nature. No comments were received from
the Office of Advocacy for the Small Business Administration.
NMFS agrees that the Gulf Council's preferred alternatives will
best achieve their objectives for Amendment 43 while minimizing, to the
extent practicable, the adverse effects on fishers, support industries,
and associated communities.
NMFS expects this final rule to directly affect all vessels with a
Federal commercial permit for Gulf reef fish that harvest hogfish. A
Federal Gulf commercial reef fish permit is required for commercial
vessels to harvest reef fish species, including hogfish, in the Gulf
EEZ. Over the period of 2010 through 2014, the number of vessels that
recorded commercial harvests of hogfish in the Gulf EEZ ranged from 55
in 2010 to 75 in 2014, or an average of 61 vessels per year, based on
mandatory Federal logbook data. The average annual revenue per vessel
from the harvest of all finfish species during this period by these
vessels was approximately $35,600 (this estimate and all subsequent
monetary estimates in this analysis are in 2014 dollars), of which
approximately $2,200 was derived from the harvest of hogfish.
NMFS has not identified any other small entities that might be
directly affected by this final rule. Although
[[Page 34578]]
recreational anglers would be directly affected by the actions in this
final rule, recreational anglers are not small entities under the RFA.
The actions in this final rule will not directly apply to or change the
operation of the charter vessel and headboat (for-hire) component of
the recreational sector or the service this component provides, which
is providing a platform to fish for and retain those fish that are
caught within legal allowances. Although angler demand for for-hire
services could be affected by the management changes in this final
rule, the resultant effects on for-hire businesses would be indirect
consequences of this final rule. Indirect effects are outside the scope
of the RFA.
For RFA purposes only, NMFS has established a small business size
standard for businesses, including their affiliates, whose primary
industry is commercial fishing. A business primarily engaged in
commercial fishing (NAICS code 11411) 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 $11 million for all its affiliated operations
worldwide. All commercial fishing vessels expected to be directly
affected by this final rule are believed to be small business entities.
This final rule contains four actions specific to the management of
the West Florida hogfish stock in the Gulf: defining the hogfish FMU,
establishing the stock ACL, setting the minimum size limit, and
prohibiting the harvest of hogfish with powerheads in the Gulf reef
fish stressed area. Two of these actions, defining the FMU and
prohibiting the use of powerheads, are not expected to have any direct
economic effects on any small entities.
Defining the FMU is an administrative action that forms the
platform from which subsequent regulations, such as the ACL and minimum
size limit, are based. Although direct economic effects may result from
the implementation of these management measures for a newly defined
FMU, these effects would be indirect consequences of defining the FMU.
NMFS notes that the establishment of the West Florida hogfish stock
boundary would result in the extension of South Atlantic hogfish
management measures for the Florida Keys/East Florida hogfish stock
into Gulf Federal waters south of the 25[deg]09' N. lat. line off the
west coast of Florida. As a result, vessels with Federal Gulf
commercial reef fish permits may experience direct negative economic
effects due to the more restrictive hogfish management measures imposed
by the South Atlantic Council in the area between the Gulf and South
Atlantic Council jurisdictional boundary and the West Florida hogfish
stock boundary line at 25[deg]09' N. lat. off the west coast of
Florida. These direct negative economic effects, which are discussed in
the final rule implementing South Atlantic Amendment 37 published in
the same issue of the Federal Register on July 25, 2017, would also be
an indirect consequence of defining the FMU.
As explained in the final rule implementing Amendment 37, the data
used to assign landings to stock areas and monitor the ACL do not have
the spatial resolution to estimate the specific fishing activity that
occurs in the area between the Councils' jurisdictional boundary and
the new Florida Keys/East Florida hogfish stock boundary at the
25[deg]09' N. lat. line off the west coast of Florida. Therefore, the
analysis conducted for Amendment 37, and summarized in the Amendment 37
final rule, used commercial landings data exclusive to Federal waters
of the South Atlantic off the State of Florida as a proxy for
commercial landings in the new Florida Keys/East Florida stock area
(including the area in the Gulf EEZ). Based on the relatively small
size of the area between the Councils' jurisdictional boundary and the
new Florida Keys/East Florida hogfish stock boundary at the 25[deg]09'
N. lat. line off the west coast of Florida, as well as the public
comments received and South Atlantic Council discussions, NMFS expects
commercial hogfish landings from this area in the Gulf EEZ to be below
the level that would change any of the assumptions or conclusions in
the analysis provided in Amendment 37 and the corresponding final rule.
Prohibiting the use of powerheads to harvest hogfish is not
expected to directly affect any small entities because powerheads are
not expected to be used to harvest hogfish. The use of powerheads for
the harvest of other reef fish species in these areas is currently
prohibited and, because of the small size of hogfish, powerheads would
be expected to result in excessive damage to the fish and adversely
affect its market quality. Thus, NMFS does not expect that any hogfish
in the Gulf reef fish stressed area are commercially harvested using
powerheads, and the prohibition on the use of powerheads to harvest
hogfish is not expected to reduce revenue to any commercial fishermen.
The changes in the West Florida hogfish stock ACL and minimum size
limit have independent and interactive effects. The changes in the West
Florida hogfish stock ACL are expected to increase total commercial
fishing revenue for all vessels during the 2016 through 2018 fishing
years by approximately $8,900 per year, followed by a decrease in
revenue of approximately $39,300 in 2019, and annually thereafter,
until the stock ACL (or other hogfish management aspect) is changed.
The revised minimum size limit is expected to reduce commercial harvest
by 17 percent averaged over the fishing year and across gear types,
resulting in a decrease in commercial revenue each year if vessels are
unable to compensate for the reduced harvest of hogfish through
increased harvest of other species. Independent of the changes in the
West Florida hogfish stock ACL, the increase in the minimum size limit
is expected to decrease total commercial revenue for all vessels by
approximately $28,500 per year.
In combination, the revisions to the West Florida hogfish stock ACL
and minimum size limit are expected to decrease total commercial
revenue for all vessels by approximately $21,100 per year for 2016
through 2018, and approximately $61,100 in 2019, and each year
thereafter, until the stock ACL (or other management aspect) is
changed. As previously stated, these projected reductions in fishing
revenue assume commercial fishermen are unable to benefit from the full
increase in the ACL due to the increase in the minimum size limit, or
compensate for the effects of the larger minimum size limit on their
normal harvests (i.e., pre-ACL increase). Averaged across the number of
small business entities expected to be directly affected by this action
(55-75 entities, or an average of 61 entities per year), the reduction
in fishing revenue per vessel each year for 2016 through 2018 is
expected to range from $282 (75 entities) to $384 (55 entities) per
year, or an average of $347 (61 entities) per year. For 2019, and
thereafter, the average reduction in revenue per vessel is expected to
range from $814 (75 entities) to $1,111 (55 entities) per year, or an
average of $1,001 (61 entities) per year.
Compared to the average annual revenue per vessel from all
commercial fishing (approximately $35,600), the expected reduction in
revenue per vessel per year as a result of the changes in the West
Florida hogfish stock ACL and minimum size limit is expected to be
approximately one percent of average annual total fishing revenue for
2016 through 2018. For 2019, and thereafter, the average reduction in
annual revenue per vessel is expected to be
[[Page 34579]]
approximately three percent of average annual total revenue.
In conjunction with the changes to the ACL for the West Florida
hogfish stock, this final rule eliminates the ACT (i.e., a hogfish ACT
is not defined). Although this final rule does not define an ACT for
West Florida hogfish, the ACT is not currently used as a fishing
restraint and would not trigger AMs, and does not affect the harvest of
hogfish, or associated revenue, in the Gulf. As a result, not defining
an ACT for the West Florida hogfish stock is not expected to have any
economic effects on any small entities.
In addition to the four actions that relate to the management of
hogfish in the Gulf, this final rule makes a minor revision to the
definition of a charter vessel. A regulatory reference within the
definition of charter vessel was inadvertently not updated when the
regulations at 50 CFR part 622 were reorganized in 2013 (78 FR 57534,
September 19, 2013). The revision made in this final rule is editorial
in nature and is not expected to have any direct effect on any small
entities.
The following discussion describes the alternatives considered in
Amendment 43 that were not selected as preferred by the Council.
Because the actions to define the Gulf hogfish FMU, specify the SDC
for the West Florida hogfish stock, prohibit the use of powerheads to
harvest hogfish in the Gulf reef fish stressed area, and revise the
definition of charter vessel are not expected to have any direct
adverse economic effects on any small entities, the issue of
significant alternatives is not relevant.
Four alternatives, including no action, were considered for the
action to set the West Florida hogfish stock ACL. Each of these
alternatives included options on whether to set an ACT for the West
Florida hogfish stock, and the option selected by the Council was to
not set an ACT. As previously discussed, the ACT did not restrict
harvest or trigger AMs. Thus, not defining an ACT is not expected to
have any direct economic effects, and the issue of significant
alternatives (or options) is not relevant.
The first alternative (no action) to the ACLs for the West Florida
hogfish stock established by this final rule would have resulted in
less revenue to commercial fishermen in 2016 through 2018, and more
revenue in 2019 and thereafter than the proposed change. Cumulatively
(2016 through 2019 and thereafter), this alternative would have
resulted in more commercial fishing revenue than the ACLs in this final
rule. However, this alternative was not selected by the Council because
it would not enable the increase in stock ACL for the West Florida
hogfish stock resulting from SEDAR 37. Under this final rule, the ACL
in 2019 will be substantially reduced from the ACL in the 2017 and 2018
fishing years if a new hogfish assessment is not completed prior to
2019 and new ACLs are not implemented. This may suggest the ``no
action'' ACL would be preferable to the ACLs established by this final
rule. However, retaining the ``no action'' ACL in 2019 and beyond would
be inconsistent with the ABC recommendations provided by the Gulf
Council's SSC. In addition, the Gulf Council expects a new hogfish
stock assessment to be completed in sufficient time to avoid the
scheduled reduction to the ACL beginning in the 2019 fishing year.
The second alternative to the ACLs for the West Florida hogfish
stock established by this final rule would set the ACL higher in 2016,
and reduce it thereafter, until it reached the lowest level in 2019.
This alternative would be expected to result in increased commercial
fishing revenue in 2016, decreased revenue in 2017 and 2018, and the
same revenue in 2019, and thereafter, compared to the ACLs established
by this final rule. This alternative was not adopted by the Gulf
Council because it would require successive reductions in the ACL in
2017 and 2018 (after the initial increase in 2016), in addition to the
reduction in 2019, common to both this alternative and the ACL
established by this final rule. The Gulf Council determined that
employing a constant ACL for the 2016 through 2018 fishing years would
result in greater economic stability for affected fishermen and
associated businesses.
Finally, the fourth alternative to the ACLs for the West Florida
hogfish stock established by this final rule would set the ACL at the
lowest level of these alternatives, resulting in less revenue in 2016
through 2018, and the same revenue in 2019 and thereafter, compared to
the ACLs established by this final rule. This alternative was not
selected because it would unnecessarily limit hogfish harvest and cause
greater economic losses than the ACLs established by this final rule.
Four alternatives, including no action, were considered for the
action to change the hogfish minimum size limit. The Gulf Council
determined that slowing the hogfish directed harvest rate was prudent
to reduce the likelihood that the ACL is exceeded, thus triggering AMs.
Exceeding the ACL may require an AM-based closure in the following
year, and the Council determined that a closure is more economically
harmful than reducing the harvest rate to help ensure a longer open
season. Therefore, to reduce the harvest rate, the Gulf Council decided
to increase the hogfish minimum size limit.
The first alternative (no action) to the minimum size limit in this
final rule would not change the minimum size limit, would not reduce
the harvest rate, and would not achieve the Gulf Council's objective.
Two other minimum size limits were considered in Amendment 43, each of
which are greater than the current minimum size limit and the minimum
size limit in this final rule. Because these alternatives would result
in a greater minimum size limit than the Gulf Council's selection, each
would be expected to result in greater reductions in hogfish harvest
and associated revenue. These alternatives were not adopted because the
Gulf Council concluded that the resultant reductions in the hogfish
harvest rate would be greater than necessary, and would result in
excessive adverse economic effects on fishermen and associated
businesses.
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 interested parties.
Changes to Codified Text From the Proposed Rule
In response to public comment, NMFS includes additional language in
part 622 regulations to clarify which Federal permits apply when
harvesting Florida Keys/East Florida hogfish in the Gulf EEZ. This
final rule adds a definition for ``Florida Keys/East Florida hogfish'',
and modifies the language in section 622.20 to clarify that Gulf
Federal permits are required for commercial vessels, charter vessels,
and headboats to harvest Florida Keys/East Florida hogfish in the Gulf
EEZ.
List of Subjects in 50 CFR Part 622
Commercial, Fisheries, Fishing, Gulf of Mexico, Hogfish,
Recreational, South Atlantic.
[[Page 34580]]
Dated: July 19, 2017.
Chris Oliver,
Assistant Administrator for Fisheries, 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. 622.1, revise the Table 1 entry for ``FMP for the Reef Fish
Resources of the Gulf of Mexico'', and add footnote 7 to Table 1 to
read as follows:
Sec. 622.1 Purpose and scope.
* * * * *
Table 1 to Sec. 622.1--FMPs Implemented Under Part 622
----------------------------------------------------------------------------------------------------------------
Responsible fishery
FMP title management council(s) Geographical area
----------------------------------------------------------------------------------------------------------------
* * * * * * *
FMP for the Reef Fish Resources of the GMFMC....................... Gulf. 1 3 4 7
Gulf of Mexico.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Regulated area includes adjoining state waters for purposes of data collection and quota monitoring.
* * * * * * *
\3\ Regulated area includes adjoining state waters for Gulf red snapper harvested or possessed by a person
aboard a vessel for which a Gulf red snapper IFQ vessel account has been established or possessed by a dealer
with a Gulf IFQ dealer endorsement.
\4\ Regulated area includes adjoining state waters for Gulf groupers and tilefishes harvested or possessed by a
person aboard a vessel for which an IFQ vessel account for Gulf groupers and tilefishes has been established
or possessed by a dealer with a Gulf IFQ dealer endorsement.
* * * * * * *
\7\ Hogfish are managed by the FMP in the Gulf EEZ except south of 25[deg]09' N. lat. off the west coast of
Florida. Hogfish in the remainder of the Gulf EEZ south of 25[deg]09' N. lat. off the west coast of Florida
are managed under the FMP for the Snapper-Grouper Fishery of the South Atlantic Region.
0
3. In Sec. 622.2, revise the first two sentences in the definition of
Charter vessel and add the definition for Florida Keys/East Florida
hogfish in alphabetical order to read as follows:
Sec. 622.2 Definitions and acronyms.
* * * * *
Charter vessel means a vessel less than 100 gross tons (90.8 mt)
that is subject to the requirements of the USCG to carry six or fewer
passengers for hire and that engages in charter fishing at any time
during the calendar year. A charter vessel with a commercial permit, as
required under this part, is considered to be operating as a charter
vessel when it carries a passenger who pays a fee or when there are
more than three persons aboard, including operator and crew, except for
a charter vessel with a commercial vessel permit for Gulf reef fish or
South Atlantic snapper-grouper. * * *
* * * * *
Florida Keys/East Florida hogfish means hogfish occurring in the
Gulf EEZ from 25[deg]09' N. lat. off the west coast of Florida and
south to the jurisdictional boundary between the Gulf and South
Atlantic Councils, as defined at 50 CFR 600.105(c), and continuing in
the South Atlantic EEZ from the jurisdictional boundary between the
Gulf and South Atlantic Councils to the state boundary between Florida
and Georgia.
* * * * *
0
4. In Sec. 622.20, revise paragraphs (a)(1) introductory text and (b)
introductory text to read as follows:
Sec. 622.20 Permits and endorsements.
(a) Commercial vessels--(1) Commercial vessel permits. For a person
aboard a vessel to be eligible for exemption from the bag limits, to
fish under a quota, as specified in Sec. 622.39, or to sell Gulf reef
fish or Florida Keys/East Florida hogfish in or from the Gulf EEZ, a
commercial vessel permit for Gulf reef fish must have been issued to
the vessel and must be on board. If Federal regulations for Gulf reef
fish in subparts A or B of this part are more restrictive than state
regulations, a person aboard a vessel for which a commercial vessel
permit for Gulf reef fish has been issued must comply with such Federal
regulations regardless of where the fish are harvested. See paragraph
(a)(1)(i) of this section regarding a limited access system for
commercial vessel permits for Gulf reef fish. See Sec. Sec.
622.21(b)(1) and 622.22(b)(1), respectively, regarding an IFQ vessel
account required to fish for, possess, or land Gulf red snapper or Gulf
groupers and tilefishes, and paragraph (a)(2) of this section regarding
an additional bottom longline endorsement required to fish for Gulf
reef fish with bottom longline gear in a portion of the eastern Gulf.
* * * * *
(b) Charter vessel/headboat permits. For a person aboard a vessel
that is operating as a charter vessel or headboat to fish for or
possess Gulf reef fish, in or from the EEZ, a valid charter vessel/
headboat permit for Gulf reef fish must have been issued to the vessel
and must be on board. For a person aboard a vessel that is operating as
a charter vessel or headboat to fish for or possess Florida Keys/East
Florida hogfish in or from the Gulf EEZ, a valid charter vessel/
headboat permit for Gulf reef fish must have been issued to the vessel
and must be on board.
* * * * *
0
5. In Sec. 622.34, add paragraph (g) to read as follows:
Sec. 622.34 Seasonal and area closures designed to protect Gulf reef
fish.
* * * * *
(g) Recreational sector for hogfish in the Gulf EEZ south of
25[deg]09' N. lat. off the west coast of Florida. See Sec.
622.183(b)(4) for the applicable seasonal closures.
0
6. In Sec. 622.35, revise paragraph (a)(1) to read as follows:
Sec. 622.35 Gear restricted areas.
(a) * * *
(1) A powerhead may not be used in the stressed area to take Gulf
reef fish. Possession of a powerhead and a mutilated Gulf reef fish in
the stressed area or after having fished in the stressed area
constitutes prima facie evidence that such reef fish was taken with a
powerhead in the stressed area.
* * * * *
[[Page 34581]]
0
7. In Sec. 622.37, revise paragraph (c)(2) to read as follows:
Sec. 622.37 Size limits.
* * * * *
(c) * * *
(2) Hogfish in the Gulf EEZ except south of 25[deg]09' N. lat. off
the west coast of Florida--14 inches (40.6 cm), fork length. See Sec.
622.185(c)(3)(ii) for the hogfish size limit in the Gulf EEZ south of
25[deg]09' N. lat. off the west coast of Florida.
* * * * *
0
8. In Sec. 622.38, revise paragraph (b)(7) to read as follows:
Sec. 622.38 Bag and possession limits.
* * * * *
(b) * * *
(7) Hogfish in the Gulf EEZ except south of 25[deg]09' N. lat. off
the west coast of Florida--5. See Sec. 622.187(b)(3)(ii) for the
hogfish bag and possession limits in the Gulf EEZ south of 25[deg]09'
N. lat. off the west coast of Florida.
* * * * *
0
9. In Sec. 622.41, revise paragraph (p) to read as follows:
Sec. 622.41 Annual catch limits (ACLs), annual catch targets (ACTs),
and accountability measures (AMs).
* * * * *
(p) Hogfish in the Gulf EEZ except south of 25[deg]09' N. lat. off
the west coast of Florida. If the sum of the commercial and
recreational landings, as estimated by the SRD, exceeds the stock ACL,
then during the following fishing year, if the sum of commercial and
recreational landings reaches or is projected to reach the stock ACL,
the AA will file a notification with the Office of the Federal Register
to close the commercial and recreational sectors for the remainder of
that fishing year. For the 2016 through 2018 fishing years, the stock
ACL for hogfish in the Gulf EEZ except south of 25[deg]09' N. lat. off
the west coast of Florida is 219,000 lb (99,337 kg), round weight. For
the 2019 and subsequent fishing years, the stock ACL for hogfish in the
Gulf EEZ except south of 25[deg]09' N. lat. off the west coast of
Florida is 159,300 lb (72,257 kg), round weight. See Sec.
622.193(u)(2) for the ACLs, ACT, and AMs for hogfish in the Gulf EEZ
south of 25[deg]09' N. lat. off the west coast of Florida.
* * * * *
0
10. In Sec. 622.43, add paragraph (c) to read as follows:
Sec. 622.43 Commercial trip limits.
* * * * *
(c) Hogfish in the Gulf EEZ south of 25[deg]09' N. lat. off the
west coast of Florida--see Sec. 622.191(a)(12)(ii) for the commercial
trip limit.
[FR Doc. 2017-15590 Filed 7-24-17; 8:45 am]
BILLING CODE 3510-22-P