[Federal Register Volume 77, Number 218 (Friday, November 9, 2012)]
[Rules and Regulations]
[Pages 67303-67305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27444]



National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 120417412-2412-01]
RIN 0648-BB90

Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Gray Triggerfish Management 

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

ACTION: Temporary rule; interim measures extended.


SUMMARY: NMFS issues this temporary rule to extend the expiration date 
of interim measures to reduce overfishing of gray triggerfish in the 
Gulf of Mexico (Gulf) implemented by a temporary rule published by NMFS 
on May 14, 2012. This temporary rule extends the reduced commercial 
quota (commercial annual catch target (ACT)), commercial and 
recreational annual catch limits (ACLs), and recreational ACT; and the 
revised recreational accountability measures (AMs) for gray 
triggerfish, as requested by the Gulf of Mexico Fishery Management 
Council (Council). The intended effect of this temporary rule is to 
reduce overfishing of the gray triggerfish resource in the Gulf while 
the Council develops permanent management measures.

DATES: The expiration date for the interim rule published at 77 FR 
28308, May 14, 2012, is extended from November 10, 2012, through May 
15, 2013, unless NMFS publishes a superseding document in the Federal 

ADDRESSES: Electronic copies of documents supporting this temporary 
rule, which include an environmental assessment (EA) and a regulatory 
flexibility analysis, may be obtained from the Southeast Regional 
Office Web site at http://sero.nmfs.noaa.gov.

[[Page 67304]]

FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone: 727-824-5305 or 
email: [email protected].

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf is managed 
under the Fishery Management Plan for the Reef Fish Resources of the 
Gulf of Mexico (FMP). The FMP was prepared by the Council and is 
implemented through regulations at 50 CFR part 622 under the authority 
of the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act). The Magnuson-Stevens Act provides the legal 
authority for the promulgation of interim regulations under section 
305(c) (16 U.S.C. 1855(c)).
    Section 305(c)(2) of the Magnuson-Stevens Act provides the Council 
the authority to request interim measures, if necessary, to reduce 
overfishing. On April 19, 2012, the Council requested that NMFS 
implement a temporary rule to reduce overfishing of gray triggerfish in 
the Gulf while the Council and NMFS develop Amendment 37 to the FMP. 
Amendment 37 will contain permanent measures to end overfishing of the 
gray triggerfish stock. On May 14, 2012, NMFS published the final 
temporary rule (77 FR 28308) to implement measures to reduce 
overfishing of gray triggerfish in the Gulf and requested public 
comment. The interim measures implemented revised commercial and 
recreational ACLs and ACTs and revised the AMs for the recreational 
sector. Through the final temporary rule, the commercial sector ACL was 
reduced to 64,100 lb (29,075 kg), round weight, and the commercial ACT 
(commercial quota) was reduced to 60,900 lb (27,624 kg), round weight. 
The recreational sector ACL was reduced to 241,200 lb (109,406 kg), 
round weight, and the recreational ACT was reduced to 217,100 (98,475 
kg), round weight. Additionally, the temporary rule established an in-
season AM for the gray triggerfish recreational sector that prohibits 
the recreational harvest of gray triggerfish (a recreational sector 
closure) after the recreational ACT is reached or projected to be 
    The Council requested an extension of the interim rule on August 
23, 2012, to ensure that management measures remain in effect for gray 
triggerfish to reduce overfishing while more permanent measures are 
developed through Amendment 37. Section 305(c)(3)(B) of the Magnuson-
Stevens Act allows for interim measures to be extended for one 
additional period of 186 days provided that the public has had an 
opportunity to comment on the interim measures and the Council is 
actively preparing a plan amendment to address the overfishing on a 
permanent basis.
    Amendment 37 is scheduled to be implemented early in the 2013 
fishing year.

Comments and Responses

    Section 305(c)(3)(B) of the Magnuson-Stevens Act requires that the 
public has an opportunity to comment on interim measures after the 
regulation is published and the Council is actively preparing a plan 
amendment to address overfishing on a permanent basis. Therefore, NMFS 
solicited comments in the May 14, 2012, final temporary rule. NMFS 
received comments from a total of 11 entities on the final temporary 
rule. The following is a summary of the substantive comments NMFS 
received and NMFS' respective responses. Similar comments have been 
grouped together.
    Comment 1: Personal observations do not support the stock 
assessment findings that the stock is overfished and undergoing 
overfishing. Therefore, there is no reason for the temporary rule.
    Response: Gray triggerfish are known to be highly site specific and 
so it is possible that gray triggerfish abundance is greater in some 
areas of the Gulf than in others. However, both the 2006 benchmark and 
2011 update Southeast Data, Assessment, and Review (SEDAR) assessments 
of the gray triggerfish stock used data from a variety of sources 
throughout the Gulf. Both of these assessments, which are considered 
the best available science, indicate the stock size is too low 
(overfished) and that too many fish are being caught and landed 
(overfishing). The Magnuson-Stevens Act requires the Council and NMFS 
to end overfishing and allow the stock to recover; therefore, the 
Council and NMFS are obligated to revise the gray triggerfish 
rebuilding plan to achieve these objectives.
    Comment 2: Personal observations support that gray triggerfish 
abundances are low, but the cause of the reduction in abundance is not 
due to overfishing. Reductions in abundance are due to the number of 
red snapper feeding on juvenile reef fish, including gray triggerfish.
    Response: The 2011 SEDAR update assessment indicated that for 2005-
2009, gray triggerfish recruitment has been less than average. However, 
the reason for the reduced recruitment is currently unknown. At this 
time, there is no evidence to support that low gray triggerfish 
recruitment is a result of red snapper predation.
    Comment 3: Rather than closing gray triggerfish recreational 
harvest when the ACL is reached, a reduced recreational bag limit 
should have been implemented to avoid any closures.
    Response: In evaluating long-term measures to reduce the 
recreational harvest of gray triggerfish in Amendment 37, the Council 
is evaluating reduced recreational bag limits. However, their analyses 
indicate that even if the bag limit were reduced to 1-fish per person 
per day from the current 20-fish reef fish aggregate bag limit, some 
type of seasonal closure is needed to reduce harvest consistent with 
reductions needed for the rebuilding plan. The Council is evaluating a 
combination of these measures in Amendment 37 to the FMP.
    Comment 4: The 2011 SEDAR gray triggerfish update stock assessment 
did not account for changes in gray triggerfish fishing as a result of 
the increase in the minimum size limit and the requirement to use 
circle hooks.
    Response: The 2011 SEDAR update assessment did account for the 
increase from 12-inches (30.5 cm), total length, to 14-inches (35.6 
cm), fork length. This change was noted in the regulatory history 
section in the final 2011 SEDAR update assessment report. The effects 
of the size limit change were reflected in length data from fishery-
dependent sampling programs after August 4, 2008, when Amendment 30A to 
the FMP became effective and these measures were implemented (73 FR 
38139, July 3, 2008). Although the effects of circle hooks on gray 
triggerfish fishing were not specifically examined in the 2011 update 
assessment, the 2011 SEDAR update stock assessment showed declines in 
both the commercial and recreational harvest starting in 2005, well 
before the circle hook requirement went into effect on June 1, 2008. 
Therefore, other factors are responsible for the declining gray 
triggerfish stock. In addition, differences between catch-per-unit-
effort estimates between the 2011 SEDAR update assessment and the 2006 
SEDAR benchmark assessment did not vary by much, suggesting the change 
to circle hooks has had little effect on gray triggerfish fishing.
    Comment 5: The gray triggerfish commercial sector should be closed 
until the gray triggerfish stock recovers.
    Response: The temporary rule reduces overfishing of the gray 
triggerfish stock while the Council develops a rebuilding plan in 
Amendment 37. In rebuilding overfished stocks, the Magnuson-Stevens Act 
requires that regulations shall ``allocate both overfishing 
restrictions and recovery benefits fairly and equitably among sectors 
of the fishery'' (Magnuson-Stevens Act section 304(e)(4)(B)). The 
action proposed in the comment would place all overfishing

[[Page 67305]]

restrictions to the commercial sector, and as the stock recovers, 
allocate these benefits to the recreational sector. Thus, this action 
would not be fair and equitable and would not conform to the Magnuson-
Stevens Act.
    Additionally, the current allocation between the commercial and 
recreational sector is 29 percent and 71 percent, respectively. Given 
the needed reduction in gray triggerfish harvest from 2011 levels to 
2012 levels is approximately 50 percent, closing the commercial sector 
would not achieve the needed reduction in harvest that would allow the 
stock to recover by 2017, the end year of the 10-year gray triggerfish 
rebuilding plan. Therefore, even with an established commercial 
closure, recreational measures would still need to be implemented for 
the stock to recover within the allotted time of the rebuilding plan.


    The Administrator, Southeast Region, NMFS, (RA) has determined that 
the interim measures this temporary rule extends are necessary for the 
conservation and management of the Gulf gray triggerfish stock, until 
more permanent measures are implemented, and is consistent with the 
Magnuson-Stevens Act and other applicable laws. The Council and NMFS 
are developing Amendment 37 to the FMP to establish long-term measures 
to end the overfishing of Gulf gray triggerfish and rebuild the stock. 
Amendment 37 and its associated regulations are still being implemented 
and are not expected to become effective until the 2013 fishing year.
    This temporary rule has been determined to be not significant for 
purposes of E.O. 12866.
    This temporary rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior notice and comment.
    An EA was prepared for the interim measures contained in the May 
14, 2012, final temporary rule (77 FR 28308). The EA analyzed the 
impacts of reduced harvest through the 2012 fishing year, which 
includes the impacts related to extending the interim rule. Therefore, 
the impacts of continuing the interim measures through this extension 
have already been considered. Copies of the EA are available from NMFS 
    The Assistant Administrator for Fisheries, NOAA (AA) finds good 
cause under 5 U.S.C. 553(b)(B) to waive prior notice and opportunity 
for public comment on this temporary rule extension. Providing prior 
notice and opportunity for public comment would be contrary to the 
public interest. This rule would continue interim measures implemented 
by the May 14, 2012, final temporary rule, for not more than an 
additional 186 days beyond the current expiration date of November 10, 
2012. The conditions prompting the initial temporary rule still remain, 
and more permanent measures to be completed through Amendment 37 have 
not yet been finalized. Failure to extend these interim measures, while 
NMFS finalizes the more permanent measures in Amendment 37, would 
result in additional overfishing of the Gulf gray triggerfish stock, 
which is contrary to the public interest and in violation of National 
Standard 1 of the Magnuson-Stevens Act.
    For the aforementioned reasons, the AA also finds good cause under 
5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness of this 

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

    Dated: November 6, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2012-27444 Filed 11-8-12; 8:45 am]