NACO

National Association of Charterboat Operators

Gag Grouper

NMFS implements management measures described in a framework action to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico Fishery Management Council (Council). This final rule establishes a closure date for the 2013 recreational sector for the harvest of gag based on the projected annual catch target (ACT), and reduces the geographic extent of the recreational shallow-water grouper (SWG) fixed seasonal closure. In the Gulf of Mexico (Gulf), SWG consists of gag, red grouper, black grouper, scamp, yellowfin grouper, and yellowmouth grouper.

    The purpose of this rule is to help achieve optimum yield (OY) for the Gulf gag and other SWG resources and prevent overfishing from the stocks in the SWG complex.

This rule is effective July 5, 2013.

 

ADDRESSES: Electronic copies of the framework action, which includes an 

 

environmental assessment, regulatory impact review, and Regulatory 

Flexibility Act analysis, may be obtained from the Southeast Regional 

Office Web site at http://sero.nmfs.noaa.gov/sf/GrouperSnapperandReefFish.htm.

 

FOR FURTHER INFORMATION CONTACT: Peter Hood, Southeast Regional Office, 

NMFS, telephone 727-824-5305; email: This email address is being protected from spambots. You need JavaScript enabled to view it..

 

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf includes 

SWG and 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 February 21, 2013, NMFS published a proposed rule for the 

framework action and requested public comments (78 FR 12012). The 

proposed rule and the framework action outline the rationale for the 

actions contained in this final rule. A summary of the actions 

implemented by this final rule are provided below.

    This final rule: (1) Establishes a closure date for the 

recreational sector for the harvest of gag based on when the ACT is 

projected to be reached, rather than closing on November 1, 2013, as 

prescribed under current regulations; and (2) modifies the geographic 

extent of the recreational SWG fixed seasonal closure, which occurs 

from February 1 through March 31, each year, to allow recreational SWG 

fishing within Federal waters shoreward of the 20-fathom boundary 

during the closure. Both measures are intended to prevent overfishing 

of gag. However, while the second measure will reduce restrictions on 

fishermen wanting to harvest SWG in nearshore waters during the 

closure, the reduction in the geographic extent of the closure still 

provides some spawning season protection for several SWG species, but 

provides a better opportunity for the recreational sector to achieve OY 

from the stocks in the SWG complex in the Gulf.

 

Management Measures Contained in This Final Rule

 

Recreational Gag Fishing Season

 

    The recreational gag fishing season opens on July 1, each year. 

Currently, the season closes on November 1, each year, and remains 

closed until the following July. This final rule sets the closure date 

of the recreational sector for gag based on when the ACT is projected 

to be reached. NMFS will monitor recreational gag landings in-season 

and if NMFS projects the recreational gag ACL will be reached before 

the expected ACT closure date, NMFS may publish a different closure 

date in the Federal Register.

    Given a 2013 ACT of 1.287 million lb (0.584 million kg), gutted 

weight, and assuming compatible state regulations, NMFS projected at 

the time of the proposed rule that the recreational gag fishing season 

would remain open until sometime between November 11 and December 3, 

2013. In 2013, four Gulf coast counties in Florida established 

recreational gag fishing seasons in state waters that are inconsistent 

with the 2013 Federal season. All other Gulf coast counties are 

consistent with the season for Federal waters. Therefore, the effect of 

these inconsistent seasons on gag harvest has been factored into 

projections of how long the Federal season may remain open based on the 

ACT.

    Using updated landings data, NMFS now projects the ACT for the 

recreational sector for gag will be reached on December 3, 2013. 

Therefore, the recreational sector for gag will open at 12:01 a.m., 

local time, on July 1, 2013, and close at 12:01 a.m., local time, 

December 3, 2013, unless NMFS determines, using in-season landings 

data, that the ACL will be reached before December 3, 2013, at which 

time NMFS will publish a new closure date in the Federal Register.

    During the closure, the bag and possession limit of gag in or from 

the Gulf exclusive economic zone (EEZ) is zero. For persons in the Gulf 

on board a vessel for which a valid Federal charter vessel/headboat 

permit for Gulf reef fish has been issued, this bag and possession 

limit applies without regard to where such species were harvested, i.e. 

in state or Federal waters. The recreational sector for gag will reopen 

on July 1, 2014, the start of the 2014 recreational fishing season.

 

Recreational SWG Fixed Seasonal Closure

 

    This final rule modifies the geographic extent of the February 1 

through March 31 recreational SWG fixed seasonal closure, so that it 

applies only to Federal waters seaward of the 20-fathom boundary as 

established by the coordinates in 50 CFR 622.34(d). This modification 

will continue to provide protection for spawning gag as well as for 

other SWG species that spawn in waters deeper than 20 fathoms in 

February and March, while allowing fishermen to harvest SWG shoreward 

of the 20-fathom contour. The coordinates of the boundary follow the 

20-fathom reef fish bottom longline boundary from the Florida Keys 

north and west to Cape San Blas, as specified in Table 1 of Appendix B 

to 50 CFR Part 622. However, where the longline boundary moves out to 

50 fathoms west of Cape San Blas, this rule establishes new 20-fathom 

boundary coordinates for waters off Cape San Blas to the U.S. and 

Mexico border.

 

Comments and Reponses

 

    NMFS received a total of 23 individual comments on the framework 

action and the proposed rule. Seven individual comments supported all 

or a part of the rule. One Federal agency indicated they had no 

objection to the framework action or the rule. The

remaining comments opposed the rule. The comments specific to this 

framework action or proposed rule are grouped into 7 topics. These 

topics and NMFS' respective responses are summarized below.

    Comment 1: Alternative gag recreational seasons, beyond the 

proposed season from July 1 until the ACT is projected to be reached, 

should be considered. A part of this consideration should be to ensure 

the season coincides with seasons for other important reef fish species 

like red snapper and greater amberjack.

    Response: The Council considered several gag season alternatives in 

the framework action including split seasons and those based on 

matching the gag season with the seasons of other reef fish. However, 

the Council selected a single gag season beginning July 1 and ending 

when the ACT is projected to be reached (December 3, 2013) because this 

season is estimated to achieve the longest fishing season consistent 

with the harvest reductions outlined in the 10-year gag rebuilding 

plan. Other seasons considered by the Council tended to occur when gag 

harvest rates were higher and reduced the total season length by more 

than 30 to 60 days. The Council concluded the greatest benefits to the 

recreational sector would be achieved with a longer gag season.

    Comment 2: The assumptions used to determine the 2013 gag season 

dates and lengths are overly optimistic and will likely result in ACLs 

being exceeded.

    Response: NMFS disagrees that the assumptions used were overly 

optimistic and would likely result in ACLs being exceeded. The 2013 gag 

season length is projected based on landings data to best reflect 

current fishing conditions. The projection model, as described in 

Appendix D of the framework action, estimates the closure date by 

assessing total removals (i.e., landed and discarded dead fish). This 

model was used to establish the October 31 closure date for the 2012 

fishing season and preliminary recreational landings data for 2012 

estimate only 72 percent of the ACL was caught, suggesting the model is 

not likely to overestimate the season length. The projections are also 

based on harvesting the ACT [1.287 million lb (0.584 million kg), 

gutted weight], which is more conservative than the ACL (1.495 million 

lb, or 0.678 million kg, gutted weight). In addition, landings will be 

monitored during the fishing year, and if these data indicate the ACL 

would be met prior to the season closure date, recreational gag fishing 

will be closed when the ACL is projected to be reached.

    Comment 3: The level of harvest used to derive the season length 

does not match on-the-water observations of gag abundance. In addition, 

fishing effort is likely down with the current level of fuel prices, 

which would support a longer season.

    Response: The Council did not consider and this rule does not 

address changes to the harvest limits established in Amendment 32 to 

the FMP (77 FR 6988, February 10, 2012). To project the gag season 

length, a projection model (Appendix D of the framework action) was 

developed by NMFS and reviewed by the Council's Science and Statistical 

Committee. The model uses Southeast Fisheries Science Center's ACL 

database and is based on current levels of fishing effort by using 

actual landings information to estimate 2013 fishing effort.

    Comment 4: Changes to the SWG spawning closure should be rejected 

until NMFS and the Council evaluate the likely biological consequences 

for gag and other SWG stocks by removing the spawning closure.

    Response: NMFS disagrees that the change to the SWG spawning 

closure should be rejected and that additional evaluation of the 

biological consequences of the change is necessary. The Council 

considered the stock status of gag and other SWG species, as well as 

the biological consequences for these species, when evaluating the 

impacts of modifying the SWG seasonal spawning closure. The Council 

determined that this modification would continue to protect spawning 

aggregations of gag and other grouper species such as red grouper and 

scamp because these species spawn primarily in waters deeper than 20 

fathoms. During the offshore February and March seasonal closure, 

fishing effort for SWG may increase shoreward of 20 fathoms. However, 

the harvest of SWG species is regulated with bag limits, size limits, 

and the use of ACTs, ACLs, and accountability measures (AMs), which are 

designed to protect SWG stocks from overfishing and help achieve OY.

    Comment 5: Closing waters seaward of 20 fathoms in February and 

March will be more difficult to enforce than the current February and 

March closure of all Gulf waters. There is no way to determine where a 

fish was caught after a vessel reaches the shore.

    Response: NMFS agrees that a seasonal-area closure can be more 

difficult to enforce than a traditional Gulf-wide seasonal closure, 

which can be enforced dockside. However, the Council determined that 

enforcement concerns were outweighed by the benefits of opening waters 

shoreward of 20 fathoms to SWG harvest (with the exception of gag, 

which does not open until July 1 each year), which will allow for-hire 

businesses to book grouper fishing trips and private anglers to keep 

grouper they catch when fishing shoreward of 20 fathoms during February 

and March.

    Comment 6: To protect SWG stocks, there should be no fishing during 

the spawning periods.

    Response: NMFS disagrees that a prohibition on all fishing during 

spawning is required to protected SWG stocks. The proposed seasonal-

area closure is expected to afford protection to all of the SWG 

species. The closure covers some part of peak spawning for each of 

these species, except yellowmouth grouper, and provides protection for 

all spawning during February and March in waters deeper than 20 

fathoms, which is where most of the spawning occurs. The Council 

determined, and NMFS agrees, that limiting the seasonal closure to 

waters deeper than 20 fathoms will continue to provide sufficient 

protection for SWG spawning while reducing socio-economic impacts on 

the recreational sector.

    Comment 7: Private anglers should have a year-round season and more 

restrictions should be added to the for-hire and commercial sectors.

    Response: The Council did not consider and this rule does not 

address regulatory changes to the commercial sector or restrictions 

that would apply only to the for-hire component of the recreational 

sector. A year-round recreational season for SWG species, other than 

gag, is possible shoreward of 20 fathoms as long as the AMs for these 

SWG species do not require a closure. For gag, the harvest levels under 

the rebuilding plan do not allow for a year-round recreational harvest.

 

Changes From the Proposed Rule

 

    On April 17, 2013, NMFS published in the Federal Register an 

interim final rule to reorganize the regulations in 50 CFR part 622 for 

the Gulf of Mexico, South Atlantic, and the Caribbean (78 FR 22950). 

That interim final rule did not create any new rights or obligations 

for the regulated entities. Rather, the rule merely reorganized the 

existing regulatory requirements in the Code of Federal Regulations 

into a new format. This final rule incorporates this new format into 

the regulatory text; it does not change the specific regulatory 

requirements that were contained in the proposed rule. Therefore, as a 

result of this reorganization, the seasonal closure text previously located at 

Sec.  622.34(u) is now at Sec.  622.34(d) and the text previously 

located at Sec.  622.34(v) is now at Sec.  622.34(e).

    The proposed rule included the term ``regulatory amendment'' to 

describe the document developed by the Council to implement the 

management measures contained in this final rule. However, NMFS has 

determined that it is more specific to use the term ``framework 

action'' to describe this document because the management measures 

contained in this final rule may be implemented through the Gulf reef 

fish framework procedures as defined in Amendment 38 to the FMP (78 FR 

6218, January 30, 2013); therefore NMFS uses this term throughout this 

final rule.

 

Classification

 

    The Regional Administrator, Southeast Region, NMFS has determined 

that the actions contained in this final rule and framework action are 

necessary for the conservation and management of the reef fish fishery 

and are 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.

    The Chief Counsel for Regulation of the Department of Commerce 

certified to the Chief Counsel for Advocacy of the Small Business 

Administration during the proposed rule stage that this action would 

not have a significant economic impact on a substantial number of small 

entities. The factual basis for this certification was published in the 

proposed rule and is not repeated here. No comments were received 

regarding the certification and NMFS has not received any new 

information that would affect its determination. No changes to the 

final rule were made in response to public comments. As a result, a 

regulatory flexibility analysis was not required and none was prepared.

NMFS implements management measures described in a framework 

action to the Fishery Management Plan for the Reef Fish Resources of 

the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico Fishery 

Management Council (Council). This final rule establishes a closure 

date for the 2013 recreational sector for the harvest of gag based on 

the projected annual catch target (ACT), and reduces the geographic 

extent of the recreational shallow-water grouper (SWG) fixed seasonal 

closure. In the Gulf of Mexico (Gulf), SWG consists of gag, red 

grouper, black grouper, scamp, yellowfin grouper, and yellowmouth 

grouper.

    The purpose of this rule is to help achieve optimum yield (OY) for 

the Gulf gag and other SWG resources and prevent overfishing from the 

stocks in the SWG complex.

 

DATES: This rule is effective July 5, 2013.

 

ADDRESSES: Electronic copies of the framework action, which includes an 

environmental assessment, regulatory impact review, and Regulatory 

Flexibility Act analysis, may be obtained from the Southeast Regional 

Office Web site at http://sero.nmfs.noaa.gov/sf/GrouperSnapperandReefFish.htm.

 

FOR FURTHER INFORMATION CONTACT: Peter Hood, Southeast Regional Office, 

NMFS, telephone 727-824-5305; email: This email address is being protected from spambots. You need JavaScript enabled to view it..

 

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf includes 

SWG and 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 February 21, 2013, NMFS published a proposed rule for the 

framework action and requested public comments (78 FR 12012). The 

proposed rule and the framework action outline the rationale for the 

actions contained in this final rule. A summary of the actions 

implemented by this final rule are provided below.

    This final rule: (1) Establishes a closure date for the 

recreational sector for the harvest of gag based on when the ACT is 

projected to be reached, rather than closing on November 1, 2013, as 

prescribed under current regulations; and (2) modifies the geographic 

extent of the recreational SWG fixed seasonal closure, which occurs 

from February 1 through March 31, each year, to allow recreational SWG 

fishing within Federal waters shoreward of the 20-fathom boundary 

during the closure. Both measures are intended to prevent overfishing 

of gag. However, while the second measure will reduce restrictions on 

fishermen wanting to harvest SWG in nearshore waters during the 

closure, the reduction in the geographic extent of the closure still 

provides some spawning season protection for several SWG species, but 

provides a better opportunity for the recreational sector to achieve OY 

from the stocks in the SWG complex in the Gulf.

 

Management Measures Contained in This Final Rule

 

Recreational Gag Fishing Season

 

    The recreational gag fishing season opens on July 1, each year. 

Currently, the season closes on November 1, each year, and remains 

closed until the following July. This final rule sets the closure date 

of the recreational sector for gag based on when the ACT is projected 

to be reached. NMFS will monitor recreational gag landings in-season 

and if NMFS projects the recreational gag ACL will be reached before 

the expected ACT closure date, NMFS may publish a different closure 

date in the Federal Register.

    Given a 2013 ACT of 1.287 million lb (0.584 million kg), gutted 

weight, and assuming compatible state regulations, NMFS projected at 

the time of the proposed rule that the recreational gag fishing season 

would remain open until sometime between November 11 and December 3, 

2013. In 2013, four Gulf coast counties in Florida established 

recreational gag fishing seasons in state waters that are inconsistent 

with the 2013 Federal season. All other Gulf coast counties are 

consistent with the season for Federal waters. Therefore, the effect of 

these inconsistent seasons on gag harvest has been factored into 

projections of how long the Federal season may remain open based on the 

ACT.

    Using updated landings data, NMFS now projects the ACT for the 

recreational sector for gag will be reached on December 3, 2013. 

Therefore, the recreational sector for gag will open at 12:01 a.m., 

local time, on July 1, 2013, and close at 12:01 a.m., local time, 

December 3, 2013, unless NMFS determines, using in-season landings 

data, that the ACL will be reached before December 3, 2013, at which 

time NMFS will publish a new closure date in the Federal Register.

    During the closure, the bag and possession limit of gag in or from 

the Gulf exclusive economic zone (EEZ) is zero. For persons in the Gulf 

on board a vessel for which a valid Federal charter vessel/headboat 

permit for Gulf reef fish has been issued, this bag and possession 

limit applies without regard to where such species were harvested, i.e. 

in state or Federal waters. The recreational sector for gag will reopen 

on July 1, 2014, the start of the 2014 recreational fishing season.

 

Recreational SWG Fixed Seasonal Closure

 

    This final rule modifies the geographic extent of the February 1 

through March 31 recreational SWG fixed seasonal closure, so that it 

applies only to Federal waters seaward of the 20-fathom boundary as 

established by the coordinates in 50 CFR 622.34(d). This modification 

will continue to provide protection for spawning gag as well as for 

other SWG species that spawn in waters deeper than 20 fathoms in 

February and March, while allowing fishermen to harvest SWG shoreward 

of the 20-fathom contour. The coordinates of the boundary follow the 

20-fathom reef fish bottom longline boundary from the Florida Keys 

north and west to Cape San Blas, as specified in Table 1 of Appendix B 

to 50 CFR Part 622. However, where the longline boundary moves out to 

50 fathoms west of Cape San Blas, this rule establishes new 20-fathom 

boundary coordinates for waters off Cape San Blas to the U.S. and 

Mexico border.

 

Comments and Reponses

 

    NMFS received a total of 23 individual comments on the framework 

action and the proposed rule. Seven individual comments supported all 

or a part of the rule. One Federal agency indicated they had no 

objection to the framework action or the rule. The

 

[[Page 33260]]

 

remaining comments opposed the rule. The comments specific to this 

framework action or proposed rule are grouped into 7 topics. These 

topics and NMFS' respective responses are summarized below.

    Comment 1: Alternative gag recreational seasons, beyond the 

proposed season from July 1 until the ACT is projected to be reached, 

should be considered. A part of this consideration should be to ensure 

the season coincides with seasons for other important reef fish species 

like red snapper and greater amberjack.

    Response: The Council considered several gag season alternatives in 

the framework action including split seasons and those based on 

matching the gag season with the seasons of other reef fish. However, 

the Council selected a single gag season beginning July 1 and ending 

when the ACT is projected to be reached (December 3, 2013) because this 

season is estimated to achieve the longest fishing season consistent 

with the harvest reductions outlined in the 10-year gag rebuilding 

plan. Other seasons considered by the Council tended to occur when gag 

harvest rates were higher and reduced the total season length by more 

than 30 to 60 days. The Council concluded the greatest benefits to the 

recreational sector would be achieved with a longer gag season.

    Comment 2: The assumptions used to determine the 2013 gag season 

dates and lengths are overly optimistic and will likely result in ACLs 

being exceeded.

    Response: NMFS disagrees that the assumptions used were overly 

optimistic and would likely result in ACLs being exceeded. The 2013 gag 

season length is projected based on landings data to best reflect 

current fishing conditions. The projection model, as described in 

Appendix D of the framework action, estimates the closure date by 

assessing total removals (i.e., landed and discarded dead fish). This 

model was used to establish the October 31 closure date for the 2012 

fishing season and preliminary recreational landings data for 2012 

estimate only 72 percent of the ACL was caught, suggesting the model is 

not likely to overestimate the season length. The projections are also 

based on harvesting the ACT [1.287 million lb (0.584 million kg), 

gutted weight], which is more conservative than the ACL (1.495 million 

lb, or 0.678 million kg, gutted weight). In addition, landings will be 

monitored during the fishing year, and if these data indicate the ACL 

would be met prior to the season closure date, recreational gag fishing 

will be closed when the ACL is projected to be reached.

    Comment 3: The level of harvest used to derive the season length 

does not match on-the-water observations of gag abundance. In addition, 

fishing effort is likely down with the current level of fuel prices, 

which would support a longer season.

    Response: The Council did not consider and this rule does not 

address changes to the harvest limits established in Amendment 32 to 

the FMP (77 FR 6988, February 10, 2012). To project the gag season 

length, a projection model (Appendix D of the framework action) was 

developed by NMFS and reviewed by the Council's Science and Statistical 

Committee. The model uses Southeast Fisheries Science Center's ACL 

database and is based on current levels of fishing effort by using 

actual landings information to estimate 2013 fishing effort.

    Comment 4: Changes to the SWG spawning closure should be rejected 

until NMFS and the Council evaluate the likely biological consequences 

for gag and other SWG stocks by removing the spawning closure.

    Response: NMFS disagrees that the change to the SWG spawning 

closure should be rejected and that additional evaluation of the 

biological consequences of the change is necessary. The Council 

considered the stock status of gag and other SWG species, as well as 

the biological consequences for these species, when evaluating the 

impacts of modifying the SWG seasonal spawning closure. The Council 

determined that this modification would continue to protect spawning 

aggregations of gag and other grouper species such as red grouper and 

scamp because these species spawn primarily in waters deeper than 20 

fathoms. During the offshore February and March seasonal closure, 

fishing effort for SWG may increase shoreward of 20 fathoms. However, 

the harvest of SWG species is regulated with bag limits, size limits, 

and the use of ACTs, ACLs, and accountability measures (AMs), which are 

designed to protect SWG stocks from overfishing and help achieve OY.

    Comment 5: Closing waters seaward of 20 fathoms in February and 

March will be more difficult to enforce than the current February and 

March closure of all Gulf waters. There is no way to determine where a 

fish was caught after a vessel reaches the shore.

    Response: NMFS agrees that a seasonal-area closure can be more 

difficult to enforce than a traditional Gulf-wide seasonal closure, 

which can be enforced dockside. However, the Council determined that 

enforcement concerns were outweighed by the benefits of opening waters 

shoreward of 20 fathoms to SWG harvest (with the exception of gag, 

which does not open until July 1 each year), which will allow for-hire 

businesses to book grouper fishing trips and private anglers to keep 

grouper they catch when fishing shoreward of 20 fathoms during February 

and March.

    Comment 6: To protect SWG stocks, there should be no fishing during 

the spawning periods.

    Response: NMFS disagrees that a prohibition on all fishing during 

spawning is required to protected SWG stocks. The proposed seasonal-

area closure is expected to afford protection to all of the SWG 

species. The closure covers some part of peak spawning for each of 

these species, except yellowmouth grouper, and provides protection for 

all spawning during February and March in waters deeper than 20 

fathoms, which is where most of the spawning occurs. The Council 

determined, and NMFS agrees, that limiting the seasonal closure to 

waters deeper than 20 fathoms will continue to provide sufficient 

protection for SWG spawning while reducing socio-economic impacts on 

the recreational sector.

    Comment 7: Private anglers should have a year-round season and more 

restrictions should be added to the for-hire and commercial sectors.

    Response: The Council did not consider and this rule does not 

address regulatory changes to the commercial sector or restrictions 

that would apply only to the for-hire component of the recreational 

sector. A year-round recreational season for SWG species, other than 

gag, is possible shoreward of 20 fathoms as long as the AMs for these 

SWG species do not require a closure. For gag, the harvest levels under 

the rebuilding plan do not allow for a year-round recreational harvest.

 

Changes From the Proposed Rule

 

    On April 17, 2013, NMFS published in the Federal Register an 

interim final rule to reorganize the regulations in 50 CFR part 622 for 

the Gulf of Mexico, South Atlantic, and the Caribbean (78 FR 22950). 

That interim final rule did not create any new rights or obligations 

for the regulated entities. Rather, the rule merely reorganized the 

existing regulatory requirements in the Code of Federal Regulations 

into a new format. This final rule incorporates this new format into 

the regulatory text; it does not change the specific regulatory 

requirements that were contained in the proposed rule. Therefore, as a 

result of

 

[[Page 33261]]

 

this reorganization, the seasonal closure text previously located at 

Sec.  622.34(u) is now at Sec.  622.34(d) and the text previously 

located at Sec.  622.34(v) is now at Sec.  622.34(e).

    The proposed rule included the term ``regulatory amendment'' to 

describe the document developed by the Council to implement the 

management measures contained in this final rule. However, NMFS has 

determined that it is more specific to use the term ``framework 

action'' to describe this document because the management measures 

contained in this final rule may be implemented through the Gulf reef 

fish framework procedures as defined in Amendment 38 to the FMP (78 FR 

6218, January 30, 2013); therefore NMFS uses this term throughout this 

final rule.

 

Classification

 

    The Regional Administrator, Southeast Region, NMFS has determined 

that the actions contained in this final rule and framework action are 

necessary for the conservation and management of the reef fish fishery 

and are 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.

    The Chief Counsel for Regulation of the Department of Commerce 

certified to the Chief Counsel for Advocacy of the Small Business 

Administration during the proposed rule stage that this action would 

not have a significant economic impact on a substantial number of small 

entities. The factual basis for this certification was published in the 

proposed rule and is not repeated here. No comments were received 

regarding the certification and NMFS has not received any new 

information that would affect its determination. No changes to the 

final rule were made in response to public comments. As a result, a 

regulatory flexibility analysis was not required and none was prepared.

NMFS implements management measures described in a framework 

action to the Fishery Management Plan for the Reef Fish Resources of 

the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico Fishery 

Management Council (Council). This final rule establishes a closure 

date for the 2013 recreational sector for the harvest of gag based on 

the projected annual catch target (ACT), and reduces the geographic 

extent of the recreational shallow-water grouper (SWG) fixed seasonal 

closure. In the Gulf of Mexico (Gulf), SWG consists of gag, red 

grouper, black grouper, scamp, yellowfin grouper, and yellowmouth 

grouper.

    The purpose of this rule is to help achieve optimum yield (OY) for 

the Gulf gag and other SWG resources and prevent overfishing from the 

stocks in the SWG complex.

 

DATES: This rule is effective July 5, 2013.

 

ADDRESSES: Electronic copies of the framework action, which includes an 

environmental assessment, regulatory impact review, and Regulatory 

Flexibility Act analysis, may be obtained from the Southeast Regional 

Office Web site at http://sero.nmfs.noaa.gov/sf/GrouperSnapperandReefFish.htm.

 

FOR FURTHER INFORMATION CONTACT: Peter Hood, Southeast Regional Office, 

NMFS, telephone 727-824-5305; email: This email address is being protected from spambots. You need JavaScript enabled to view it..

 

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf includes 

SWG and 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 February 21, 2013, NMFS published a proposed rule for the 

framework action and requested public comments (78 FR 12012). The 

proposed rule and the framework action outline the rationale for the 

actions contained in this final rule. A summary of the actions 

implemented by this final rule are provided below.

    This final rule: (1) Establishes a closure date for the 

recreational sector for the harvest of gag based on when the ACT is 

projected to be reached, rather than closing on November 1, 2013, as 

prescribed under current regulations; and (2) modifies the geographic 

extent of the recreational SWG fixed seasonal closure, which occurs 

from February 1 through March 31, each year, to allow recreational SWG 

fishing within Federal waters shoreward of the 20-fathom boundary 

during the closure. Both measures are intended to prevent overfishing 

of gag. However, while the second measure will reduce restrictions on 

fishermen wanting to harvest SWG in nearshore waters during the 

closure, the reduction in the geographic extent of the closure still 

provides some spawning season protection for several SWG species, but 

provides a better opportunity for the recreational sector to achieve OY 

from the stocks in the SWG complex in the Gulf.

 

Management Measures Contained in This Final Rule

 

Recreational Gag Fishing Season

 

    The recreational gag fishing season opens on July 1, each year. 

Currently, the season closes on November 1, each year, and remains 

closed until the following July. This final rule sets the closure date 

of the recreational sector for gag based on when the ACT is projected 

to be reached. NMFS will monitor recreational gag landings in-season 

and if NMFS projects the recreational gag ACL will be reached before 

the expected ACT closure date, NMFS may publish a different closure 

date in the Federal Register.

    Given a 2013 ACT of 1.287 million lb (0.584 million kg), gutted 

weight, and assuming compatible state regulations, NMFS projected at 

the time of the proposed rule that the recreational gag fishing season 

would remain open until sometime between November 11 and December 3, 

2013. In 2013, four Gulf coast counties in Florida established 

recreational gag fishing seasons in state waters that are inconsistent 

with the 2013 Federal season. All other Gulf coast counties are 

consistent with the season for Federal waters. Therefore, the effect of 

these inconsistent seasons on gag harvest has been factored into 

projections of how long the Federal season may remain open based on the 

ACT.

    Using updated landings data, NMFS now projects the ACT for the 

recreational sector for gag will be reached on December 3, 2013. 

Therefore, the recreational sector for gag will open at 12:01 a.m., 

local time, on July 1, 2013, and close at 12:01 a.m., local time, 

December 3, 2013, unless NMFS determines, using in-season landings 

data, that the ACL will be reached before December 3, 2013, at which 

time NMFS will publish a new closure date in the Federal Register.

    During the closure, the bag and possession limit of gag in or from 

the Gulf exclusive economic zone (EEZ) is zero. For persons in the Gulf 

on board a vessel for which a valid Federal charter vessel/headboat 

permit for Gulf reef fish has been issued, this bag and possession 

limit applies without regard to where such species were harvested, i.e. 

in state or Federal waters. The recreational sector for gag will reopen 

on July 1, 2014, the start of the 2014 recreational fishing season.

 

Recreational SWG Fixed Seasonal Closure

 

    This final rule modifies the geographic extent of the February 1 

through March 31 recreational SWG fixed seasonal closure, so that it 

applies only to Federal waters seaward of the 20-fathom boundary as 

established by the coordinates in 50 CFR 622.34(d). This modification 

will continue to provide protection for spawning gag as well as for 

other SWG species that spawn in waters deeper than 20 fathoms in 

February and March, while allowing fishermen to harvest SWG shoreward 

of the 20-fathom contour. The coordinates of the boundary follow the 

20-fathom reef fish bottom longline boundary from the Florida Keys 

north and west to Cape San Blas, as specified in Table 1 of Appendix B 

to 50 CFR Part 622. However, where the longline boundary moves out to 

50 fathoms west of Cape San Blas, this rule establishes new 20-fathom 

boundary coordinates for waters off Cape San Blas to the U.S. and 

Mexico border.

 

Comments and Reponses

 

    NMFS received a total of 23 individual comments on the framework 

action and the proposed rule. Seven individual comments supported all 

or a part of the rule. One Federal agency indicated they had no 

objection to the framework action or the rule. The

 

[[Page 33260]]

 

remaining comments opposed the rule. The comments specific to this 

framework action or proposed rule are grouped into 7 topics. These 

topics and NMFS' respective responses are summarized below.

    Comment 1: Alternative gag recreational seasons, beyond the 

proposed season from July 1 until the ACT is projected to be reached, 

should be considered. A part of this consideration should be to ensure 

the season coincides with seasons for other important reef fish species 

like red snapper and greater amberjack.

    Response: The Council considered several gag season alternatives in 

the framework action including split seasons and those based on 

matching the gag season with the seasons of other reef fish. However, 

the Council selected a single gag season beginning July 1 and ending 

when the ACT is projected to be reached (December 3, 2013) because this 

season is estimated to achieve the longest fishing season consistent 

with the harvest reductions outlined in the 10-year gag rebuilding 

plan. Other seasons considered by the Council tended to occur when gag 

harvest rates were higher and reduced the total season length by more 

than 30 to 60 days. The Council concluded the greatest benefits to the 

recreational sector would be achieved with a longer gag season.

    Comment 2: The assumptions used to determine the 2013 gag season 

dates and lengths are overly optimistic and will likely result in ACLs 

being exceeded.

    Response: NMFS disagrees that the assumptions used were overly 

optimistic and would likely result in ACLs being exceeded. The 2013 gag 

season length is projected based on landings data to best reflect 

current fishing conditions. The projection model, as described in 

Appendix D of the framework action, estimates the closure date by 

assessing total removals (i.e., landed and discarded dead fish). This 

model was used to establish the October 31 closure date for the 2012 

fishing season and preliminary recreational landings data for 2012 

estimate only 72 percent of the ACL was caught, suggesting the model is 

not likely to overestimate the season length. The projections are also 

based on harvesting the ACT [1.287 million lb (0.584 million kg), 

gutted weight], which is more conservative than the ACL (1.495 million 

lb, or 0.678 million kg, gutted weight). In addition, landings will be 

monitored during the fishing year, and if these data indicate the ACL 

would be met prior to the season closure date, recreational gag fishing 

will be closed when the ACL is projected to be reached.

    Comment 3: The level of harvest used to derive the season length 

does not match on-the-water observations of gag abundance. In addition, 

fishing effort is likely down with the current level of fuel prices, 

which would support a longer season.

    Response: The Council did not consider and this rule does not 

address changes to the harvest limits established in Amendment 32 to 

the FMP (77 FR 6988, February 10, 2012). To project the gag season 

length, a projection model (Appendix D of the framework action) was 

developed by NMFS and reviewed by the Council's Science and Statistical 

Committee. The model uses Southeast Fisheries Science Center's ACL 

database and is based on current levels of fishing effort by using 

actual landings information to estimate 2013 fishing effort.

    Comment 4: Changes to the SWG spawning closure should be rejected 

until NMFS and the Council evaluate the likely biological consequences 

for gag and other SWG stocks by removing the spawning closure.

    Response: NMFS disagrees that the change to the SWG spawning 

closure should be rejected and that additional evaluation of the 

biological consequences of the change is necessary. The Council 

considered the stock status of gag and other SWG species, as well as 

the biological consequences for these species, when evaluating the 

impacts of modifying the SWG seasonal spawning closure. The Council 

determined that this modification would continue to protect spawning 

aggregations of gag and other grouper species such as red grouper and 

scamp because these species spawn primarily in waters deeper than 20 

fathoms. During the offshore February and March seasonal closure, 

fishing effort for SWG may increase shoreward of 20 fathoms. However, 

the harvest of SWG species is regulated with bag limits, size limits, 

and the use of ACTs, ACLs, and accountability measures (AMs), which are 

designed to protect SWG stocks from overfishing and help achieve OY.

    Comment 5: Closing waters seaward of 20 fathoms in February and 

March will be more difficult to enforce than the current February and 

March closure of all Gulf waters. There is no way to determine where a 

fish was caught after a vessel reaches the shore.

    Response: NMFS agrees that a seasonal-area closure can be more 

difficult to enforce than a traditional Gulf-wide seasonal closure, 

which can be enforced dockside. However, the Council determined that 

enforcement concerns were outweighed by the benefits of opening waters 

shoreward of 20 fathoms to SWG harvest (with the exception of gag, 

which does not open until July 1 each year), which will allow for-hire 

businesses to book grouper fishing trips and private anglers to keep 

grouper they catch when fishing shoreward of 20 fathoms during February 

and March.

    Comment 6: To protect SWG stocks, there should be no fishing during 

the spawning periods.

    Response: NMFS disagrees that a prohibition on all fishing during 

spawning is required to protected SWG stocks. The proposed seasonal-

area closure is expected to afford protection to all of the SWG 

species. The closure covers some part of peak spawning for each of 

these species, except yellowmouth grouper, and provides protection for 

all spawning during February and March in waters deeper than 20 

fathoms, which is where most of the spawning occurs. The Council 

determined, and NMFS agrees, that limiting the seasonal closure to 

waters deeper than 20 fathoms will continue to provide sufficient 

protection for SWG spawning while reducing socio-economic impacts on 

the recreational sector.

    Comment 7: Private anglers should have a year-round season and more 

restrictions should be added to the for-hire and commercial sectors.

    Response: The Council did not consider and this rule does not 

address regulatory changes to the commercial sector or restrictions 

that would apply only to the for-hire component of the recreational 

sector. A year-round recreational season for SWG species, other than 

gag, is possible shoreward of 20 fathoms as long as the AMs for these 

SWG species do not require a closure. For gag, the harvest levels under 

the rebuilding plan do not allow for a year-round recreational harvest.

 

Changes From the Proposed Rule

 

    On April 17, 2013, NMFS published in the Federal Register an 

interim final rule to reorganize the regulations in 50 CFR part 622 for 

the Gulf of Mexico, South Atlantic, and the Caribbean (78 FR 22950). 

That interim final rule did not create any new rights or obligations 

for the regulated entities. Rather, the rule merely reorganized the 

existing regulatory requirements in the Code of Federal Regulations 

into a new format. This final rule incorporates this new format into 

the regulatory text; it does not change the specific regulatory 

requirements that were contained in the proposed rule. Therefore, as a 

result of

 

[[Page 33261]]

 

this reorganization, the seasonal closure text previously located at 

Sec.  622.34(u) is now at Sec.  622.34(d) and the text previously 

located at Sec.  622.34(v) is now at Sec.  622.34(e).

    The proposed rule included the term ``regulatory amendment'' to 

describe the document developed by the Council to implement the 

management measures contained in this final rule. However, NMFS has 

determined that it is more specific to use the term ``framework 

action'' to describe this document because the management measures 

contained in this final rule may be implemented through the Gulf reef 

fish framework procedures as defined in Amendment 38 to the FMP (78 FR 

6218, January 30, 2013); therefore NMFS uses this term throughout this 

final rule.

 

Classification

 

    The Regional Administrator, Southeast Region, NMFS has determined 

that the actions contained in this final rule and framework action are 

necessary for the conservation and management of the reef fish fishery 

and are 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.

    The Chief Counsel for Regulation of the Department of Commerce 

certified to the Chief Counsel for Advocacy of the Small Business 

Administration during the proposed rule stage that this action would 

not have a significant economic impact on a substantial number of small 

entities. The factual basis for this certification was published in the 

proposed rule and is not repeated here. No comments were received 

regarding the certification and NMFS has not received any new 

information that would affect its determination. No changes to the 

final rule were made in response to public comments. As a result, a 

regulatory flexibility analysis was not required and none was prepared.

 

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