Shallow Water Grouper Amendment 38

NMFS issues this final rule to implement management measures described in Amendment 38 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) prepared by the Gulf of Mexico (Gulf) Fishery Management Council (Council). This final rule modifies post-season accountability measures (AMs) that affect the recreational harvest of shallow-water grouper species (SWG), changes the trigger for recreational sector AMs for gag and red grouper, and revises the Gulf reef fish framework procedure. The intent of this final rule is to achieve optimum yield (OY) while ensuring the Gulf reef fish fishery resources are utilized efficiently.

This rule is effective March 1, 2013.

ADDRESSES: Electronic copies of Amendment 38, which includes an environmental assessment, fishery impact statement, regulatory flexibility act analysis, and a regulatory impact review, may be obtained from the Southeast Regional Office Web Site at http://sero.nmfs.noaa.gov/sf/GrouperSnapperandReefFish.htm.

 

FOR FURTHER INFORMATION CONTACT: Susan Gerhart, Southeast Regional Office, NMFS, telephone:  727-824-5305; email: Susan.Gerhart@noaa.gov.

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf 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 October 12, 2012, NMFS published a notice of availability for
Amendment 38 to the FMP and requested public comments (77 FR 62209). On
October 19, 2012, NMFS published a proposed rule for Amendment 38 to
the FMP and requested public comments (77 FR 64300). Amendment 38 was
approved by the Secretary of Commerce on January 9, 2013. Amendment 38
and the proposed rule for Amendment 38 outlined the rationale for the
actions contained in this final rule. A summary of the actions
implemented by this final rule are provided below.

Management Measures Contained in This Final Rule

    This rule modifies the recreational sector post-season AMs for gag
and red grouper, which currently affects all SWG species (i.e., gag,
red grouper, black grouper, scamp, yellowfin grouper, and yellowmouth
grouper), changes the trigger for recreational sector AMs for gag and
red grouper, and revises the Gulf reef fish framework procedure. The
intent of this final rule is to achieve OY while ensuring the fishery
resources are utilized efficiently.
    This final rule revises the post-season recreational sector AMs for
gag and red grouper so that the shortening of the recreational fishing
season following a fishing year with a recreational sector ACL overage
applies only to the species with landings that exceeded the
recreational ACL the prior year. Revising the recreational sector AMs
should improve the likelihood of achieving OY for red grouper and avoid
unnecessary closures of all SWG species.
    This rule also revises the trigger for post-season AMs for gag and
red grouper, so that AMs are based on a comparison of the current
year's recreational sector landings to the recreational ACL. These
recreational sector AM revisions should provide greater protection to
the gag and red grouper stocks, be easier for fishermen to understand,
and be less burdensome to administer.

Additional Measures Contained in Amendment 38

    Amendment 38 adds AMs to the list of measures that may be revised
through the Gulf reef fish framework process. No changes to the
regulatory text are required to implement the Amendment 38 action to
add AMs to the framework process, because NMFS previously erroneously
included AMs in Sec.  622.48(d) in the rule implementing the Generic
ACL/AM Amendment (76 FR 82044, December 29, 2011). Amendment 38 also
updates language in the framework procedure related to Council advisory
panels and committees. More general language in reference to Council
committees and advisory panels replaces specific references that are no
longer accurate. There is no regulatory text associated with this
measure.

Additional Measures Contained in This Final Rule

    In addition to the other changes to the FMP, this final rule
revises the management measures contained in the regulations that may
be established or modified by the framework procedure to match those
that are contained in the FMP. In the final rule implementing the
Generic ACL/AM Amendment, NMFS erroneously included sale and purchase
restrictions, and transfer at sea provisions, in the list of management
measures at Sec.  622.48(d). Thus, NMFS is removing these two items
from the list of management measures in Sec.  622.48(d). Additionally,
NMFS is removing total allowable catch (TAC) from Sec.  622.48(d). TAC
has been included in the Federal regulations since the adjustment of
management measures was first codified in 1992 (57 FR 11914, April 8,
1992). With the implementation of ACLs and ACTs, TAC is no longer used
in the management of Gulf reef fish.
    In Sec.  622.49, paragraphs (a)(4)(ii)(C) and (a)(5)(ii)(C), NMFS
clarifies language regarding the management of a recreational sector
ACL overage. If gag or red grouper are overfished, and the recreational
ACL is exceeded, the recreational ACL overage is deducted from the
recreational ACL established for the following year and from the ACT,
as determined in Sec.  622.49, paragraph (a)(4)(ii)(B) or
(a)(5)(ii)(B). If the recreational ACT is scheduled to increase in the
year following a recreational ACL overage, the recreational ACT could
be maintained at the current level and the overage would be deducted
from that prior year's ACT. However, if the best scientific information
available determines that maintaining the prior year's recreational ACT
is unnecessary, the recreational ACT could increase as scheduled and
the recreational overage would be deducted from the increased ACT in
the following fishing year. This distinction was not made in the final
rule for Amendment 32 to the FMP (77 FR 6988, February 10, 2012);
however, this clarification is consistent with not allowing the
recreational ACT to increase above the recreational ACL after an
overage occurs, maintains a larger buffer between the recreational ACT
and recreational ACL when an overage occurs, and is what the Council
intended in Amendment 32.
    NMFS moves the following sentence in the regulations from Sec. 
622.49, paragraph (a)(4)(ii)(A) to paragraph (a)(4)(ii)(B): ``In
addition, the notification will reduce the length of the recreational gag fishing
season the following fishing year by the amount necessary to ensure gag
recreational landings do not exceed the recreational ACT in the
following fishing year.'' This change will keep only recreational in-
season AMs in paragraph (a)(4)(ii)(A), and include the recreational
post-season AMs in paragraph (a)(4)(ii)(B).
    Additionally, NMFS identified an inadvertent inconsistency between
the regulatory text in the proposed rule for Amendment 32 to the FMP
(76 FR 67656, November 2, 2011) and the second proposed rule for
Amendment 32 to the FMP (77 FR 1910, January 12, 2012). To correct this
mistake, in Sec.  622.49, paragraph (a)(4)(ii)(B), NMFS revises the
phrase ``If gag are not overfished'' to read ``Without regard to
overfished status,'' and in paragraph (a)(5)(ii)(B), NMFS revises the
phrase ``If red grouper are not overfished'' to read ``Without regard
to overfished status.''