[Federal Register Volume 76, Number 83 (Friday, April 29, 2011)]
[Rules and Regulations]
[Pages 23904-23906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10479]
[[Page 23904]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 110103005-1255-02]
RIN 0648-BA48
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Reef Fish Fishery of the Gulf of Mexico; Greater Amberjack Management
Measures
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement a regulatory
amendment 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 a June
through July seasonal closure of the recreational sector for greater
amberjack in or from the Gulf of Mexico (Gulf) exclusive economic zone
(EEZ). The intended effect of this final rule is to mitigate the social
and economic impacts associated with implementing in-season closures.
This rule also revises codified text to clarify the definition of a
venting device used to deflate the abdominal cavity of a Gulf reef
fish.
DATES: This rule is effective May 31, 2011.
ADDRESSES: Copies of the regulatory amendment, which includes an
environmental assessment and a regulatory impact review, may be
obtained from the Gulf of Mexico Fishery Management Council, 2203 North
Lois Avenue, Suite 1100, Tampa, FL 33607; telephone 813-348-1630; fax
813-348-1711; e-mail [email protected]; or may be downloaded
from the Council's Web site at http://www.gulfcouncil.org/.
FOR FURTHER INFORMATION CONTACT: Rich Malinowski, 727-824-5305; fax:
727-824-5308.
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 January 24, 2011, NMFS published a proposed rule for the greater
amberjack regulatory amendment and requested public comment (76 FR
4084). On March 10, 2011, NMFS extended the comment period for an
additional 15 days (76 FR 13122) in order to ensure that the public
fully understood the intent of the greater amberjack regulatory
amendment. The proposed rule and the regulatory amendment outline the
rationale for the measures contained in this final rule. The final rule
establishes a 2-month seasonal closure (June and July each year) of the
recreational sector for greater amberjack within the Gulf reef fish
fishery. During the closure, harvest and possession of recreational
greater amberjack is prohibited in or from the EEZ.
This final rule also revises the definition of ``venting device''
to more accurately characterize the part of a fish's anatomy where the
venting device should be utilized.
Comments and Responses
The following is a summary of the comments NMFS received on the
proposed rule and the greater amberjack regulatory amendment, and
NMFS's respective responses. During the initial comment period, NMFS
received 64 submissions on the proposed rule. During the second comment
period, NMFS received an additional 57 submissions. All submissions
were from private or for-hire fishers. Overall, NMFS received 10
comments that expressed general support of the action contained in this
final rule. The remainder of the comments either did not support the
proposed action or suggested alternative management approaches. These
comments are grouped in the comments addressed below.
Comment 1: Allowing fishing during June and July is very important
for the economy of Gulf coast communities; this is the major time of
year for both private and for-hire fishing trips. Marinas, charter
boats, fishing tournaments, bait and tackle shops, hotels, and
restaurants will be hurt by this closure. People will start limiting
their trips to the Gulf coast because of the limited opportunity to
keep the fish they catch during a trip. If a closure must be
implemented to protect greater amberjack from overfishing, it should
occur either earlier or later in the year when fishing effort is
reduced. A spring spawning season closure or a winter seasonal closure
would be preferable.
Response: In 2009, the recreational sector met its greater
amberjack quota in August. In early 2010, NMFS projected that the 2010
and 2011 quotas would also be met between August and October. Even with
the extensive fishery closures that were in place in 2010 because of
the Deepwater Horizon MC252 oil spill, preliminary recreational
landings data indicate the recreational quota was met. The Council
recognized that these projected lengthy and early in-season closures
could cause economic and social disruption to for-hire businesses,
private anglers, and shoreside support facilities, such as marinas,
bait shops, hotels, and restaurants.
The Council considered several closure options, including spring
and fall closures, but determined the 3-to 5-month closed periods
needed in the spring and fall to adequately constrain harvest to the
quota were too long, and would create an economic burden to the
recreational sector through the longer duration seasonal closure. Thus,
they selected a shorter closure period during the peak of fishing
effort, which is expected to constrain harvest, and allow fishing for
the other 10 months of the year. During the Council's deliberations,
many for-hire operators indicated a June-July closure was a preferred
option, as it occurs during the red snapper recreational sector open
season, thereby allowing them to market greater amberjack as a trophy
fish during the other approximately 10 months their preferred target
species of red snapper was unavailable.
Comment 2: Greater amberjack are closer to shore and more abundant
during the summer, whereas in the winter they are farther offshore and
more dispersed, thus making them more difficult to catch than in the
summer. The most favorable summer weather is during June and July,
allowing small-boat fishermen greater opportunity to go fishing as a
result of the ocean conditions. Forcing fishermen to fish for greater
amberjack during other times of the year will mean traveling farther
offshore, decreasing vessel safety because of distance from shore and
less favorable weather, and/or reduce fishing opportunities because of
bad weather. Discards will increase because of the summer closure.
Response: NMFS and the Council recognize that there may be reduced
opportunities to fish for greater amberjack during off-peak periods
because of weather or other circumstances. However, the social and
economic impacts of a June-July closure will be less than an early in-
season closure, as described in the response to Comment 1. NMFS and the
Council also recognize that discards will occur during the closed
season. However, by ending the targeting of greater amberjack during
the closure, overall removals are expected to decrease. Release
mortality
[[Page 23905]]
is not well documented, but is thought to be low, so mortality is
expected to be reduced during the closure.
Comment 3: A seasonal closure for greater amberjack is not
necessary. The stock is healthy off Alabama and Louisiana; the oil and
gas platforms are teeming with large greater amberjack. The data used
in the stock assessment are incorrect and do not represent what
fishermen and divers observe every day when on a fishing trip. No
additional regulations should be implemented until the data collection
process has been improved. The Deepwater Horizon MC252 oil spill led to
an extensive area closed to all fishing during the peak of the fishing
season. This reduced fishing pressure during 2010 should be considered
in allowing harvest for 2011.
Response: The seasonal closure helps constrain the recreational
harvest to the allowable catch, which in turn prevents overfishing. The
recreational sector has demonstrated the continued ability to harvest
the quota within the fishing year. As noted in Comment 1, the quota was
met in August of 2009, and even with the extensive fishery closures
during 2010 because of the Deepwater Horizon MC252 oil spill,
preliminary recreational landings data for 2010 indicate the quota was
met. The closure is intended to constrain recreational harvest to
within the quota while providing the longest duration fishing season
possible, thus minimizing social and economic disruptions.
Comment 4: It seems inconsistent to state that a closure is a way
to increase recreational fishing opportunities.
Response: As noted in Comments 1 and 3, without additional action
to constrain recreational catch and effort, the recreational sector met
its fishing year quota in August 2009, met its quota in 2010, even with
the extensive fishery closures during 2010 because of the Deepwater
Horizon MC252 oil spill, and is projected to meet its recreational
quota by August 2011, for the current fishing year. To minimize the
social and economic impacts of lengthy and early in-season quota
closures, the Council selected the shortest duration seasonal closure
that is projected to constrain recreational harvest to the quota while
still allowing harvest to occur through the end of the fishing year.
During the Council's public hearing process, many for-hire operators
indicated a June-July closure was preferred, because this seasonal
closure period would allow them to market greater amberjack as a trophy
fish during the fall and winter months when their preferred target of
red snapper was unavailable as a result of the recreational season
being closed.
Comment 5: Recreational harvest of greater amberjack is not the
problem; commercial fishermen harvest much more fish than recreational
fishermen do. Recreational fishermen account for only a small part of
the total catch. Commercial fishing is depleting this resource.
Response: Regulations allocate the Gulf greater amberjack total
allowable catch between the commercial and recreational sectors. Total
annual allowable catch for greater amberjack in the Gulf of Mexico is
1,871,000 lb (848,671 kg), whole weight. The recreational quota,
allocated at 73 percent of the total allowable catch, is 1,368,000 lb
(620,514 kg), whole weight. The commercial quota, which is 27 percent
of the total allowable catch is 503,000 lb (228,157 kg), whole weight.
Comment 6: Several alternative management options were suggested in
lieu of a closure. These included issuing tags to allow recreational
fishermen to harvest specific numbers of fish, reducing the
recreational bag limit from one per person to one per vessel or one per
two people onboard, creating a slot limit, increasing the size limit,
or regionalized management.
Response: The Council has a variety of management options available
to constrain harvest of any fishing sector, including those identified
in the comments. The for-hire fishing industry provided input to the
Council during their development of the greater amberjack regulatory
amendment. They requested seasonal closures to help them properly plan
for their fishing activities so that for-hire bookings are not
unexpectedly cancelled because of early in-season quota closures. The
Council considered both spring and fall closures, ranging from 3 to 5
months in length but determined these longer closures resulted in
greater social and economic impact. In addition, early in-season quota
closures affect many fishing tournaments held during the fall of the
year. With the establishment of a fixed closed season, such tournaments
can be scheduled around the fixed closed season.
Classification
The Regional Administrator, Southeast Region, NMFS has determined
that this regulatory amendment is necessary for the conservation and
management of Gulf greater amberjack, to reduce the social and economic
impacts to the Gulf greater amberjack recreational sector, and is
consistent with the Magnuson-Stevens Act and other applicable laws.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
A final regulatory flexibility analysis (FRFA) was prepared for
this rule. The FRFA incorporates the initial regulatory flexibility
analysis (IRFA), 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. The FRFA follows.
No public comments specific to the IRFA or that have socioeconomic
implications were received and therefore no comments are addressed in
this FRFA, although the response to Comment 4 addressed the economic
impacts of the final rule more generally and may be referred to for
additional information. No changes in the final rule were made in
response to public comments.
The Magnuson-Stevens Act provides the statutory basis for this
final rule. This final rule will not establish any new reporting,
record-keeping, or other compliance requirements. No duplicative,
overlapping, or conflicting Federal rules have been identified.
The preamble of this final rule and the previously published
proposed rule provides a statement of the need for and objectives of
this rule, and it is not repeated here.
The final rule is expected to directly affect for-hire fishing
vessels that harvest greater amberjack in the Gulf. The for-hire sector
is comprised of charterboats, which charge a fee on a vessel basis, and
headboats, which charge a fee on an individual angler (head) basis.
For-hire vessels are required to have a Gulf reef fish for-hire permit
to harvest greater amberjack in the Gulf. The Small Business
Administration has established size criteria for all major industry
sectors in the U.S. including fish harvesters. A for-hire 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 $7.0 million (NAICS code 713990, recreational
industries).
In 2009, there were 1,422 unique for-hire vessels that were
permitted to operate in the Gulf reef fish recreational sector. These
vessels were distributed as follows: 140 vessels in Alabama, 877
vessels in Florida, 101 vessels in Louisiana, 54 vessels in
Mississippi, and 232 vessels in Texas. The Federal for-hire permit does
not distinguish between headboats and charter boats, but in 2009, the
headboat survey program included 79 headboats. The
[[Page 23906]]
majority of headboats were located in Florida (43), followed by Texas
(22), Alabama (10), and Louisiana (4). It cannot be determined with
available data how many of the 1,422 for-hire vessels permitted to
operate in the Gulf reef fish fishery harvest greater amberjack, so all
permitted for-hire vessels are assumed to comprise the universe of
potentially affected vessels. The average charterboat is estimated to
earn approximately $88,000 (2008 dollars) in annual revenues, while the
average headboat is estimated to earn approximately $461,000 (2008
dollars).
Based on these revenue estimates, all for-hire vessels expected to
be directly affected by this final rule are determined for the purpose
of this analysis to be small business entities. Some fleet activity
(i.e., multiple vessels owned by a single entity) may exist in the for-
hire sector but its extent is unknown, and all vessels are treated as
independent entities in this analysis.
All entities expected to be directly affected by the final rule are
determined for the purpose of this analysis to be small business
entities, so no disproportionate effects on small entities relative to
large entities are expected because of this action.
The final rule establishes a June 1 through July 31 seasonal
closure of the recreational greater amberjack sector of the Gulf reef
fish fishery. On the other hand, the no action alternative would likely
result in a recreational sector closure commencing on approximately
August 27, 2011, as a result of the quota being met or exceeded.
Relative to the no action alternative, the final rule is expected, for
the first year, to result in an increase in profits by $52,526 for the
charterboat sector as a whole, or by $39 per charterboat. On the other
hand, the final rule is expected, for the first year, to result in a
decrease in profits by $59,832 for the headboat sector as a whole, or
by $757 per headboat. Relative to the average revenues of $88,000 per
charterboat and $461,000 per headboat, the estimated effects of the
final rule may be deemed relatively small. Considering the effects on
charterboats and headboats as a whole, the final rule is expected, in
the first year, to result in a net decrease in overall for-hire vessel
profits of $7,306. This net amount is deemed small, particularly when
spread over all 1,422 for-hire vessels. In addition, it is expected
that net profits for both charterboats and headboats would not
deteriorate as much as they would under an unplanned quota closure
associated with the no action alternative. Based on the resulting net
effects on profits, it is concluded that the final rule would not have
a significant economic impact on a substantial number of small
entities.
Four alternatives, including the final action, were considered in
this amendment. The first alternative to the final action is the no
action alternative. This alternative, which would not establish a
recreational seasonal closure, resulted in a quota closure and overages
in 2009, prompting a reduction in the following year's (2010) quota. In
April 2010, the recreational sector requested that the Council consider
a seasonal closure to minimize the adverse effects of the quota
closure. The second alternative to the final action would establish a
March through May seasonal closure. This alternative would be expected
to result in larger overall adverse economic effects than the final
action. While this alternative would result in lower headboat profit
reductions of $32,713 for the first year, the charterboat profit
reductions would be substantially larger at $516,062 for the first
year. The third alternative to the final action would establish a May
through June seasonal closure. This third alternative would likely
result in larger adverse economic effects than the final action.
Similar to the second alternative to the final action, this third
alternative would result in lower headboat profit reductions of $29,844
for the first year but substantially larger charterboat reductions of
$252,017 for the first year.
The provision contained in this final rule that corrects the
definition of venting device would have no additional economic effects
on small entities because this tool is already required to be used, and
this correction merely clarifies how it should be used.
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 vessel permit holders for the Gulf
reef fish for-hire sector as well as other interested parties.
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
Dated: April 26, 2011.
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
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. 622.2, the definition for ``venting device'' is revised to
read as follows:
Sec. 622.2 Definitions and acronyms.
* * * * *
Venting device means a device intended to deflate the abdominal
cavity of a fish to release the fish with minimum damage.
* * * * *
0
3. In Sec. 622.34, paragraph (o) is added to read as follows:
Sec. 622.34 Gulf EEZ seasonal and/or area closures.
* * * * *
(o) Seasonal closure of the recreational sector for greater
amberjack. The recreational sector for greater amberjack in or from the
Gulf EEZ is closed from June 1 through July 31, each year. During the
closure, the bag and possession limit for greater amberjack in or from
the Gulf EEZ is zero.
* * * * *
0
4. In Sec. 622.41, the first sentence of paragraph (m)(3) is revised
to read as follows:
Sec. 622.41 Species specific limitations.
* * * * *
(m) * * *
(3) Venting tool. At least one venting tool is required and must be
used to deflate the abdominal cavities of Gulf reef fish to release the
fish with minimum damage. * * *
* * * * *
[FR Doc. 2011-10479 Filed 4-28-11; 8:45 am]
BILLING CODE 3510-22-P