E8-15151. Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 30A

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement Amendment 30A 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 establishes accountability measures for the commercial and recreational fisheries for greater amberjack and gray triggerfish, establishes commercial quotas for greater amberjack and gray triggerfish, establishes a recreational quota for greater amberjack and recreational catch limits for gray triggerfish, increases the commercial and recreational minimum size limit for gray triggerfish, increases the recreational minimum size limit for greater amberjack, and reduces the greater amberjack bag limit to zero for captain and crew of a vessel operating as a charter vessel or headboat. In addition, Amendment 30A establishes management targets and thresholds for gray triggerfish consistent with the requirements of the Sustainable Fisheries Act. This final rule is intended to end overfishing of greater amberjack and gray triggerfish and to rebuild these stocks to sustainable levels.

DATES:

This final rule is effective August 4, 2008.

ADDRESSES:

Copies of the Final Supplemental Environmental Impact Statement (FSEIS), the Final Regulatory Flexibility Analysis (FRFA), and the Record of Decision (ROD) may be obtained from Peter Hood, NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701; telephone [phone]; fax [phone]; e-mail [e-mail].

FOR FURTHER INFORMATION CONTACT:

Peter Hood, telephone [phone]; fax [phone]; e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

The reef fish fishery of the Gulf of Mexico is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On March 31, 2008, NMFS published a notice of availability of Amendment 30A and requested public comments (73 FR 16829). On April 8, 2008, NMFS published the proposed rule to implement Amendment 30A and requested public comments (73 FR 19040). NMFS approved Amendment 30A on June 20, 2008. The rationale for the measures in Amendment 30A is provided in the amendment and in the preamble to the proposed rule and is not repeated here.

Comments and Responses

NMFS received one public comment on Amendment 30A and the proposed rule. The following is a summary of the comment and NMFS' response.

Comment 1: Although management measures appear to be sufficient to rebuild greater amberjack and gray triggerfish stocks, increases in size limits can lead to an increased number of dead discards if assumptions about angler behavior, bycatch mortality, and the reproductive benefits to the stock are not met. Therefore, it is important that accountability measures are sufficient to identify and to ensure pay back of any overage in mortality in a timely fashion so as not to derail the rebuilding process.

Response: Levels of total allowable catch (TAC) required for greater amberjack and gray triggerfish stock rebuilding to occur within their respective rebuilding periods do consider discard mortality. This is a factor considered in the stock assessment, subsequent stock projections, and reductions in harvest derived from raising size limits. To ensure stock rebuilding is constrained to the rebuilding plan, the accountability measures (AMs) for each stock close the fisheries if the commercial or recreational quotas are reached or are projected to be reached. For the commercial greater amberjack and gray triggerfish fisheries, should the quota be exceeded, the following year's quota would be reduced to account for the overage. To ensure stock rebuilding is proceeding as anticipated, periodic assessment updates are planned to evaluate stock rebuilding. Based on these updates, any appropriate adjustments will be identified and addressed through subsequent rulemaking as necessary.

Classification

The Administrator, Southeast Region, NMFS, determined that Amendment 30A is necessary for the conservation and management of the greater amberjack and gray triggerfish fisheries in the Gulf of Mexico and that it is consistent with the Magnuson-Stevens Act, and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared an SEIS for this amendment. A notice of availability for the draft SEIS was published on December 14, 2007 (72 FR 71137). A notice of availability for the FSEIS was published on April 18, 2008 (73 FR 21124).

An FRFA was prepared. The FRFA incorporates the initial regulatory flexibility analysis, a summary of the significant economic issues raised by public comments, NMFS responses to those comments, and a summary of the analyses completed to support the action. A copy of the full analysis is available from NMFS (see ADDRESSES). A summary of the FRFA follows.

This final rule will directly affect vessels that operate in the Gulf of Mexico commercial reef fish fishery and for-hire reef fish fisheries, and reef fish dealers or processors. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the U.S. including fish harvesters, for-hire operations, fish processors, and fish dealers. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all affiliated operations worldwide. For for-hire operations, the other qualifiers apply, and the annual receipts threshold is $6.5 million (NAICS code 713990, recreational industries). For seafood processors and dealers, rather than a receipts threshold, the SBA uses an employee threshold of 500 or fewer persons on a full-time, part-time, temporary, or other basis, at all affiliated operations for a seafood processor and 100 or fewer persons for a seafood dealer.

Due to incomplete 2006 and 2007 data at the time the assessments were conducted, 2005 fishing data were used to evaluate the expected economic impacts of the final actions. A commercial reef fish permit is required to operate in the Gulf of Mexico commercial reef fish fishery, and a moratorium on the issuance of new permits has been in effect since 1992. On July 1, 2005, 1,209 commercial reef fish permits were either active (i.e., not expired--1,118 permits) or expired but eligible for renewal (91 permits), and this is considered to comprise the universe of commercial harvest operations in the fishery. However, 1,285 vessels reported reef fish landings in 2005, including vessels that transferred permits during the year. While all commercial reef fish permitted vessels can harvest greater amberjack or gray triggerfish, only 519 vessels landed greater amberjack, and 477 vessels landed gray triggerfish in 2005.

The annual average gross revenue and net income per vessel for vessels in the greater amberjack or gray triggerfish fishery is unknown. For all vessels in the commercial reef fish fishery, the average annual gross and net revenue, respectively, for vertical line vessels are estimated to range from approximately $24,100 (2005 dollars; $6,800 net revenue) to $110,100 ($28,500 net revenue), while the values for bottom longline vessels are approximately $87,600 (2005 dollars; $15,000 net revenue) to $117,000 ($25,500 net revenue). Some fleet behavior is known to exist in the commercial reef fish fishery, but the extent of such is unknown, though the maximum number of permits reported to be owned by the same entity is six. Additional permits in this and other fisheries (and associated revenues) may be linked through affiliation rules, but these links cannot be made using existing data. Nevertheless, based on the average annual gross revenue information for all commercial reef fish vessels, NMFS determines, for the purpose of this analysis, that all commercial reef fish entities potentially affected by this final rule are small business entities.

An estimated 1,692 vessels are permitted to operate in the Gulf of Mexico reef fish for-hire fishery. It is unknown how many of these vessels operate as headboats or charterboats, a distinction which is based on pricing behavior, and individual vessels may operate as both types of operations at different times. However, 76 vessels participate in the Federal headboat logbook program. Several entities own multiple for-hire permits, with at least one entity owning as many as 12 permits.

The average charterboat is estimated to generate approximately $77,000 (2005 dollars) in annual revenues, while the comparable figure for an average headboat is approximately $404,000 (2005 dollars). Based on the average annual gross revenue information for these vessels, NMFS determines, for the purpose of this analysis, that all for-hire entities potentially affected by this final rule are small business entities.

An estimated 227 dealers are permitted to buy and sell Gulf of Mexico reef fish species. Based on vessel logbook records for 2005, 192 of these dealers actively bought and sold greater amberjack, while 177 bought and sold gray triggerfish. All reef fish processors would be included in this total since a processor must be a dealer. Dealers often hold multiple types of permits and operate in both Federal and state fisheries. It is unknown what percentage of any of the average dealer's business comes from either greater amberjack or gray triggerfish.

Average employment information per reef fish dealer is unknown. Although dealers and processors are not synonymous entities, total employment for reef fish processors in the Southeast is estimated at approximately 700 individuals, both part- and full-time. While all processors must be dealers, a dealer need not be a processor. Further, processing is a much more labor-intensive exercise than dealing. Therefore, given the employment estimate for the processing sector and the total number of dealers operating in the reef fish fishery, NMFS determines that the average number of employees per dealer and processor does not surpass the SBA employment benchmark and, NMFS determines, for the purpose of this analysis, that all dealers potentially affected by this rule are small entities.

This final action will reduce greater amberjack harvests by 26 percent in the recreational sector and 43 percent in the commercial sector, and gray triggerfish harvests by 60 percent and 61 percent for the recreational and commercial sectors, respectively. Although the expected harvest reductions are large, the subsequent impact on vessel profits will depend on the importance of these species to vessel revenues. In the commercial reef fish fishery, only 120 vessels landed more than 1,000 lb (454 kg) of greater amberjack in 2005 and only 31 vessels landed more than 10,000 lb (4,536 kg) of greater amberjack. For gray triggerfish, 44 vessels landed more than 1,000 lb (454 kg), and no vessels landed more than 10,000 lb (4,536 kg). Thus, 399 vessels, or approximately 77 percent of the fleet, landed less than 1,000 lb (454 kg) of greater amberjack, while 433 vessels, or approximately 91 percent of the fleet landed less than 1,000 lb (454 kg) of gray triggerfish. This suggests that relatively few vessels in the commercial reef fish fishery are dependent on greater amberjack, and even fewer would be expected to be dependent on gray triggerfish.

The final actions for greater amberjack are projected to result in a reduction of approximately $1.3 million in net revenues to commercial reef fish vessels over the 2008-2012 rebuilding period, or approximately $260,000 per year. This annual loss equates to an average of approximately $500 if distributed across all vessels landing greater amberjack (519) or $2,200 per vessel if distributed across just vessels landing greater than 1,000 lb (454 kg) (120). The final actions for gray triggerfish are projected to result in a reduction of approximately $716,000 in net income during the 2008-2012 rebuilding period, or $145,200 per year. This annual loss equates to approximately $300 per vessel if distributed among all vessels landing gray triggerfish (477) or $3,300 if distributed across only those vessels landing more than 1,000 lb (454 kg) of gray triggerfish (44).

While for-hire vessels do not derive revenues from greater amberjack or gray triggerfish sales, most vessels target these species at some time during the year. Assuming angler demand declines in response to the restrictions for these species, revenue and profit reductions can be projected. As a result of the final actions for greater amberjack, the for-hire sector is projected to experience a loss in net income of approximately $763,000 per year, while the final actions for gray triggerfish are projected to result in a loss of approximately $514,000 per year. If these losses were distributed equally across all vessels in the fishery, the resulting loss per vessel would be less than $800 per vessel. Some vessels are likely more dependent on these species than other vessels due to where they fish and client preferences and, thus, may be more severely impacted by the management measures.

Three alternatives, including the status quo, were considered for the action to modify the greater amberjack rebuilding plan. The final action, which is the status quo, will maintain the current stepped rebuilding plan, but will update the plan with data from the 2006 stock assessment. The first alternative to the final action would use the same yield projections as the final action, but would increase the TAC annually instead of stepped increases. The second alternative to the final action would also increase the TAC annually but would limit the total harvest over the 5 years of the plan to equal that under the final action. These alternatives were not selected for the final action because the Council believed the step increases will allow greater stability to the fishery while still allowing harvest to progressively increase.

Three alternatives, including the status quo, were considered for the action to specify accountability measures for greater amberjack. The final action will implement corrective action based on single-year fishery harvest totals. Because the greater amberjack fishery is nearer the end of the rebuilding plan, the single-year approach provides the greatest probability of ending overfishing and rebuilding the stock. The first alternative to the final action, the status quo, would not specify accountability measures and would not satisfy the requirements of the Magnuson-Stevens Act and was therefore rejected. The second alternative to the final action would trigger accountability measures on the single year projections for the 2008 fishing season, but would trigger accountability measures through multi-year analyses thereafter. This alternative was not selected for the final action because multi-year assessments and corrective actions would be expected to delay stock rebuilding, resulting in slower realization of benefits from a rebuilt stock.

Five alternatives, including the status quo, were considered for the action to establish management measures for the greater amberjack recreational fishery. The first alternative to the final suite of management measures, the status quo, would not alter current management measures and would not result in sufficient harvest reduction to satisfy the rebuilding plan. This alternative would not, therefore, achieve the Council's objective. The second alternative to the final action would impose a higher size limit and, thus, was rejected because it would result in more adverse economic impacts. The third alternative to the final action would impose a 2-month seasonal closure. Since a closure would result in trip cancellations, this alternative would result in more adverse economic impacts than the final action which will simply restrict the catch but otherwise allow the fishery to remain open. The last alternative to the final action would impose both a seasonal closure and a higher size limit, and, thus, was rejected because it would result in even more adverse economic impacts.

Five alternatives, including the status quo, were considered for the action to establish management measures for the greater amberjack commercial fishery. The first alternative to the final suite of management measures, the status quo, would not alter current management measures and would not result in sufficient harvest reduction to satisfy the rebuilding plan. This alternative would not, therefore, achieve the Council's objective and thus was rejected. The second alternative to the final action would impose a trip limit. Although this alternative would achieve the same reduction as the final action, it was rejected because it would tend to impose more restrictive limits on fishing operations as to eventually result in more adverse economic impacts. The third alternative to the final action would impose an even lower trip limit and thus it was rejected because it was estimated to result in more adverse economic impacts than the final action. The last alternative to the final action would add a 3-month seasonal closure to the existing 3-month closure. Although this would achieve about the same harvest reduction as the final action, fishermen have already indicated they lost a good part of their market to the existing 3-month closure so that adding three more months to the existing closed months would only exacerbate the situations fishermen would face. For these reasons, this alternative was rejected.

Three alternatives, including sub-options and the status quo, were considered for the action to define stock benchmarks for gray triggerfish. The first alternative to the final action, the status quo, would maintain current definitions of optimum yield and maximum fishing mortality threshold, but would not set an overfished threshold (minimum stock size threshold (MSST)), which is a required component of a fishery management plan. This alternative would not, therefore, achieve the Council's objective and thus was rejected. The second alternative to the final action would establish a less conservative MSST, which would increase the risk of not maintaining a healthy resource relative to the final action. For this reason, this alternative was rejected.

Three alternatives, including the status quo, were considered for the action to establish a gray triggerfish rebuilding plan. The first alternative to the final rebuilding plan, the status quo, would not establish a gray triggerfish rebuilding plan and thus it was rejected because it would not achieve the Council's objective. The second alternative to the final rebuilding plan would establish a stepped plan rather than the constant fishing mortality rebuilding plan under the final action. This alternative is projected to result in greater adverse short-term economic impacts than the final action, and thus was rejected.

Five alternatives were considered for the action to specify accountability measures for gray triggerfish. The final action will impose accountability measures for the recreational sector, with the period of evaluation increasing from a 1-year to a 2-year to a 3-year running average of landings as the rebuilding plan progresses. For the commercial sector, the final action will evaluate landings on an annual basis. The first alternative to the final gray triggerfish accountability measures, the status quo, would not specify accountability measures and thus it was rejected because it would not satisfy the requirements of the Magnuson-Stevens Act. The second and third alternatives to the final accountability measures would require corrective action only if the combined harvests of both the commercial and recreational sectors exceed the overall target levels, differing by the type of corrective action, allowing either a range of management harvest reduction tools, such as trip, bag, season, or minimum size adjustments, or limiting the corrective action to season length (closure). These alternatives were not chosen for the final action because they would not preserve the balance of sector allocations and would not achieve the enhanced stock recovery benefits of the final action. The fourth alternative to the final accountability measures would impose the same sector-specific and period-of-assessment requirements of the final action, but would result in a delay of corrective action because such action could only be imposed via temporary rulemaking as opposed to simple notice under the final action. This delay would be expected to increase the severity of corrective actions, thereby imposing greater adverse economic impacts relative to the final action.

Two alternatives, including the status quo, were considered for the action on regional gray triggerfish management. The final action is the status quo, which will not establish different gray triggerfish management measures for the eastern and western Gulf. The only other alternative to the final action would divide the management area for gray triggerfish into two regions, namely, east and west of the Mississippi River, and limit all gray triggerfish restrictive measures to the region east of the Mississippi River. This alternative would be inconsistent with the identification of the species as a single stock throughout the Gulf of Mexico and would not rebuild the resource uniformly throughout its range and, thus, would not achieve the Council's objective.

Four alternatives, including the status quo, were considered for the action to establish management measures for the recreational gray triggerfish fishery. The first alternative to the final suite of management measures, the status quo, would not alter current management measures and would not result in sufficient harvest reduction to satisfy the rebuilding plan. For these reasons, this alternative was rejected. The second alternative to the final action would establish a bag limit and increase the size limit for gray triggerfish while the third alternative to the final action would impose an even lower bag limit but retain the size limit for gray triggerfish. These two additional alternatives would not achieve the necessary harvest reductions for the recreational sector and would not, therefore, achieve the Council's objective. Thus these alternatives were rejected.

Six alternatives, including the status quo, were considered for the action to establish management measures for the commercial gray triggerfish fishery. The first alternative to the final suite of management measures, the status quo, would not alter current management measures and would not result in sufficient harvest reduction to satisfy the rebuilding plan. Thus this alternative was rejected. The other four alternatives to the final action would: (1) Establish a very low trip limit; (2) increase the size limit; (3) increase the size limit and impose a trip limit; and, (4) slightly increase the size limit and impose a lower trip limit. These four other alternatives are projected to result in greater harvest reductions than are required to satisfy the rebuilding plan. Also, these alternatives were not selected for the final action because specifying a quota in addition to the minimum size limit, as will occur under the final action, was expected to provide greater control over total harvest and better ensure that rebuilding plan goals are realized.

List of Subjects in 50 CFR Part 622

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

Dated: June 27, 2008

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows:

PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

1. The authority citation for part 622 continues to read as follows:

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

2. In § 622.2, the definitions of “accountability measures” and “annual catch limit” are added in alphabetical order to read as follows:

§ 622.2

Definitions and acronyms.

* * * * *

Accountability measure means a management control implemented such that overfishing is prevented, where possible, and mitigated if it occurs.

* * * * *

Annual catch limit (ACL) means the level of catch that serves as the basis for invoking accountability measures.

* * * * *

3. In § 622.37, paragraphs (d)(3)(i) and (d)(3)(iv) are revised to read as follows:

§ 622.37

Size limits.

* * * * *

(d) * * *

(3) * * *

(i) Gray triggerfish -14 inches (35.6 cm), fork length.

* * * * *

(iv) Greater amberjack -30 inches (76 cm), fork length, for a fish taken by a person subject to the bag limit specified in § 622.39(b)(1)(i) and 36 inches (91.4 cm), fork length, for a fish taken by a person not subject to the bag limit.

* * * * *

4. In § 622.39, paragraph (b)(1)(i) is revised to read as follows:

§ 622.39

Bag and possession limits.

* * * * *

(b) * * *

(1) * * *

(i) Greater amberjack—1. However, no greater amberjack may be retained by the captain or crew of a vessel operating as a charter vessel or headboat. The bag limit for such captain and crew is zero.

* * * * *

5. In § 622.42, paragraphs (a)(1)(v) and (a)(1)(vi) are added, and paragraph (a)(2) is revised to read as follows:

§ 622.42

Quotas.

* * * * *

(a) * * *

(1) * * *

(v) Greater amberjack—503,000 lb (228,157 kg), round weight.

(vi) Gray triggerfish—(A) For fishing year 2008—80,000 lb (36,287 kg), round weight.

(B) For fishing year 2009 -93,000 lb (42,184 kg), round weight.

(C) For fishing year 2010 and subsequent fishing years—106,000 lb (48,081 kg), round weight.

(2) Recreational quotas. The following quotas apply to persons who fish for Gulf reef fish other than under commercial vessel permits for Gulf reef fish and the applicable commercial quotas specified in paragraph (a)(1) of this section.

(i) Recreational quota for red snapper. The recreational quota for red snapper is 2.45 million lb (1.11 million kg), round weight.

(ii) Recreational quota for greater amberjack. The recreational quota for greater amberjack is 1,368,000 lb (620,514 kg), round weight.

* * * * *

6. In § 622.43, paragraph (a)(1)(iii) is added to read as follows:

§ 622.43

Closures.

* * * * *

(a) * * *

(1) * * *

(iii) Recreational quota for greater amberjack. The bag and possession limit for greater amberjack in or from the Gulf EEZ is zero.

* * * * *

7. Section 622.49 is added to subpart C to read as follows:

§ 622.49

Accountability measures.

(a) Gulf reef fish—(1) Greater amberjack—(i) Commercial fishery. If commercial landings, as estimated by the SRD, reach or are projected to reach the applicable quota specified in § 622.42(a)(1)(v), the Assistant Administrator for Fisheries, NOAA, (AA) will file a notification with the Office of the Federal Register to close the commercial fishery for the remainder of the fishing year. In addition, if despite such closure, commercial landings exceed the quota, 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 quota for that following year by the amount of the overage in the prior fishing year.

(ii) Recreational fishery. If recreational landings, as estimated by the SRD, reach or are projected to reach the applicable recreational quota specified in § 622.42(a)(2)(ii), the AA will file a notification with the Office of the Federal Register, to close the recreational fishery for the remainder of the fishing year. In addition, if despite such closure, recreational landings exceed the quota, 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 length of the recreational fishing season for the following fishing year by the amount necessary to recover the overage from the prior fishing year. Further, during that following year, if necessary, the AA may file additional notification with the Office of the Federal Register to readjust the reduced fishing season to ensure recreational harvest achieves but does not exceed the intended harvest level.

(2) Gray triggerfish—(i) Commercial fishery. If commercial landings, as estimated by the SRD, reach or are projected to reach the applicable quota specified in § 622.42(a)(1)(vi), the AA will file a notification with the Office of the Federal Register to close the commercial fishery for the remainder of the fishing year. In addition, if despite such closure, commercial landings exceed the applicable annual catch limit (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 quota for that following year by the amount the prior-year ACL was exceeded. The applicable ACLs are 105,000 lb (47,627 kg) for 2008, 122,000 lb (55,338 kg) for 2009, and 138,000 lb (62,596 kg) for 2010 and subsequent fishing years.

(ii) Recreational fishery. If recreational landings, as estimated by the SRD, exceed the applicable ACL, the AA will file a notification with the Office of the Federal Register reducing the length of the following recreational fishing season by the amount necessary to ensure recreational landings do not exceed the recreational target total allowable catch for that following fishing year. The applicable ACLs are 394,000 lb (178,715 kg) for 2008, 426,000 lb (193,230 kg) for 2009, and 457,000 lb (207,291 kg) for 2010 and subsequent fishing years. The recreational target total allowable catches are 356,000 lb (161,479 kg) for 2009 and 405,000 lb (183,705 kg) for 2010 and subsequent fishing years. Recreational landings will be evaluated relative to the applicable ACL as follows. For 2008, only 2008 recreational landings will be compared to the ACL; in 2009, the average of 2008 and 2009 recreational landings will be compared to the ACL; and in 2010 and subsequent fishing years, the 3-year running average recreational landings will be compared to the ACL.

(b) [Reserved]