Amendment 37 Gray Triggerfish

NMFS proposes to implement management measures described in Amendment 37 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). If implemented, this rule would revise the commercial and recreational sector's annual catch limits (ACLs) and annual catch targets (ACTs) for gray triggerfish; revise the recreational sector accountability measures (AMs) for gray triggerfish; revise the gray triggerfish recreational bag limit; establish a commercial trip limit for gray triggerfish; and establish a fixed closed season for the gray triggerfish commercial and recreational sectors. Additionally, Amendment 37 would modify the gray triggerfish rebuilding plan. The intent of this rule is to end overfishing of gray triggerfish and help achieve optimum yield (OY) for the gray triggerfish resource in accordance with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

Written comments must be received on or before March 15, 2013.

 

ADDRESSES: You may submit comments on this document, identified by ``NOAA-NMFS-2012-0199'', by any of the following methods:

 

     Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2012-0199, click the ``Comment Now!'' icon, complete the required fields, and enter or attach your comments.

     Mail: Submit written comments to Rich Malinowski, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter ``N/A'' in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

    Electronic copies of Amendment 37, which includes a draft environmental assessment and a regulatory impact review, may be obtained from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Rich Malinowski, Southeast Regional Office, telephone  727-824-5305, email rich.malinowski@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 Act. All gray triggerfish weights discussed in this 

proposed rule are in round weight.

Background

The Magnuson-Stevens Act requires NMFS and regional fishery 

management councils to prevent overfishing and achieve, on a continuing 

basis, the OY from federally managed fish stocks. These mandates are 

intended to ensure that fishery resources are managed for the greatest 

overall benefit to the nation, particularly with respect to providing 

food production and recreational opportunities, and protecting marine 

ecosystems. To further this goal, the Magnuson-Stevens Act requires 

fishery managers to end overfishing of stocks and to minimize bycatch 

and bycatch mortality to the extent practicable.

 Status of the Gray Triggerfish Stock

The last Southeast Data, Assessment, and Review (SEDAR) benchmark 

stock assessment for gray triggerfish was completed in 2006 (SEDAR 9). 

SEDAR 9 indicated that the gray triggerfish stock was both overfished 

and possibly undergoing overfishing. Subsequently, Amendment 30A to the 

FMP established a gray triggerfish rebuilding plan beginning in the 

2008 fishing year (73 FR 38139, July 3, 2008). In 2011, a SEDAR 9 

update stock assessment for gray triggerfish determined that the gray 

triggerfish stock was still overfished and was additionally undergoing 

overfishing. The 2011 SEDAR 9 Update indicated the 2008 gray 

triggerfish rebuilding plan had not made adequate progress toward 

ending overfishing and rebuilding the stock. NMFS informed the Council 

of this determination in a letter dated March 13, 2012. NMFS also 

requested that the Council work to end overfishing of gray triggerfish 

immediately and to revise the gray triggerfish stock rebuilding plan.

    As a way to more quickly implement measures to end overfishing and 

rebuild the stock, the Council requested and NMFS implemented a 

temporary rule to reduce the gray triggerfish commercial and 

recreational ACLs and ACTs (77 FR 28308, May 14, 2012). The temporary 

rule also established an in-season AM for the gray triggerfish 

recreational sector to be more consistent with the commercial sector 

AMs and provide for an additional level of protection to ensure that 

the recreational ACL is not exceeded and that the risk of overfishing 

is reduced. These interim measures were then extended through May 15, 

2013, to ensure that the more permanent measures being developed 

through Amendment 37 could be implemented without a lapse in these more 

protective management measures (77 FR 67303, November 9, 2012).

Management Measures Contained in This Proposed Rule

    This proposed rule would revise the gray triggerfish commercial and 

recreational sector ACLs and ACTs (commercial ACT expressed as 

commercial quota in the regulatory text), revise the gray triggerfish 

recreational sector AMs, revise the gray triggerfish recreational bag 

limit, establish a commercial trip limit for gray triggerfish, and 

establish a fixed closed season for the gray triggerfish commercial and 

recreational sectors.

ACLs and ACTs

    This rule would revise the ACLs for the gray triggerfish commercial 

and recreational sectors. This rule would also revise the ACTs 

(commercial ACT expressed as a quota in the regulatory text) for both 

sectors.

    The Council's Scientific and Statistical Committee (SSC) reviewed 

the gray triggerfish 2011 SEDAR 9 Update. The SSC recommended that the 

gray triggerfish acceptable biological catches (ABC) for the 2012 and 

2013 fishing years be set at 305,300 lb (138,346 kg). The current gray 

triggerfish stock ABC is 595,000 lb (269,887 kg). Based on this 

recommendation, the commercial and recreational ACLs and ACTs for the 

gray triggerfish need to be updated.

    The Magnuson-Stevens Act requires that the FMP contain a mechanism 

for specifying ACLs at a level such that overfishing does not occur. An 

ACT is a management target established to account for management 

uncertainty in controlling the actual catch at or below the ACL. An ACT 

is used in the system of AMs so that the ACL is not exceeded. 

Therefore, a sector ACT should be set below the sector ACL to allow the 

sector to be closed when the ACT is projected to be reached.

    In Amendment 30A to the FMP, the Council established a 21 percent 

commercial and 79 percent recreational allocation of the gray 

triggerfish ABC (73 FR 38139, July 3, 2008). These allocations are used 

to set the commercial and recreational sector-specific ACLs. The ABC 

recommended by the SSC is 305,300 lb (138,482 kg) and the combined 

sector ACLs are equal to the ABC. Based on the allocations established 

in Amendment 30A to the FMP, this proposed rule would set a reduced 

commercial ACL of 64,100 lb (29,075 kg), and a reduced recreational ACL 

of 241,200 lb (109,406 kg).

    The Generic Annual Catch Limit Amendment developed by the Council 

and implemented by NMFS (76 FR 82044, December 29, 2011) established a 

standardized procedure to set sector-specific ACTs based on the ACLs. 

ACTs are intended to account for management uncertainty and provide a 

buffer that better ensures a sector does not exceed its designated ACL. 

The Council chose to use this procedure, which resulted in a 5 percent 

buffer between the commercial ACL and ACT, and a 10 percent buffer 

between the recreational ACL and ACT. Therefore, this proposed rule 

would set the commercial ACT (commercial quota) at 60,900 lb (27,624 

kg), and the recreational ACT at 217,100 lb (98,475 kg). The proposed 

ACLs and ACTs in this rule are the same as those currently in place as 

implemented through the temporary rule (77 FR 28308, May 14, 2012). The 

current commercial gray triggerfish quota functions as the commercial 

ACT.

 AMs

    To reduce the risk of overfishing, Amendment 30A to the FMP 

established gray triggerfish AMs. AMs are management controls that are 

implemented to prevent ACLs from being exceeded (in-season AMs), and to 

correct or mitigate overages of the ACL if they occur (post-season 

AMs). For the commercial sector, there are currently both in-season and 

post-season AMs. The in-season AM closes the commercial sector after 

the commercial quota (commercial ACT) is reached or projected to be 

reached. Additionally, if the commercial ACL is exceeded despite the 

quota closure, the post-season AM would reduce the following year's 

commercial quota (commercial ACT) by the amount of the prior-year's 

commercial ACL overage.

    For the recreational sector, there is currently no in-season AM, 

but a post-season AM is in effect. For the recreational sector, if the 

recreational ACL is exceeded, NMFS will reduce the length of the 

following year's fishing season by the amount necessary to ensure that 

recreational landings do not exceed the recreational ACT during the 

following year.

    In 2008, recreational landings exceeded both the recreational ACT 

and ACL. In 2009, the recreational ACT was exceeded. However, in 2010, 

recreational landings did not exceed the ACT or ACL. Reduced 2010 

recreational landings may be attributable to fishery closures 

implemented that year as a result of the Deepwater Horizon MC252 oil 

spill. Based on recent trends in recreational landings and anticipated 

future recreational effort, the Council and NMFS have determined that 

implementing an in-season AM would reduce the risk of exceeding the ACL 

in the future. This proposed rule would  

replace the current post-season AM with an in-season AM for the 

recreational sector to prohibit the recreational harvest of gray 

triggerfish (a recreational sector closure) after the recreational ACT 

is reached or projected to be reached. This proposed rule would also 

add an overage adjustment that would apply if the recreational sector 

ACL is exceeded and gray triggerfish are overfished. This post-season 

AM would reduce the recreational ACL and ACT for the following year by 

the amount of the ACL overage in the prior fishing year, unless the 

best scientific information available determines that a greater, 

lesser, or no overage adjustment is necessary.

 Commercial Trip Limit

    Currently, there is no trip limit for the commercial sector. This 

rule proposes to establish a commercial trip limit for gray triggerfish 

of 12 fish. This commercial trip limit would be applicable until the 

commercial ACT (commercial quota) is reached or projected to be reached 

during a fishing year and the commercial sector is closed.

 Seasonal Closure of the Commercial and Recreational Sectors

    This proposed rule would establish a seasonal closure of the gray 

triggerfish commercial and recreational sectors in the Gulf from June 

through July, each year. This fixed seasonal closure would assist 

rebuilding of the gray triggerfish stock by prohibiting harvest during 

the gray triggerfish peak spawning season. Additionally, June and July 

are the months that have the highest percentage of recreational 

landings.

 Recreational Bag Limit

    Gray triggerfish currently have a recreational bag limit that is 

part of the 20-fish aggregate reef fish bag limit. As part of this 20-

fish aggregate, there is currently no specific limit for recreational 

gray triggerfish landings as long as the total is 20 fish or less. This 

proposed rule would establish a 2-fish gray triggerfish recreational 

bag limit within the 20-fish aggregate reef fish bag limit. This 

recreational bag limit would be applicable until the recreational ACT 

is reached or projected to be reached during a fishing year and the 

recreational sector is closed.

 Other Action Contained in Amendment 37

    Amendment 37 would revise the rebuilding plan for gray triggerfish. 

The gray triggerfish stock is currently in the 5th year of a rebuilding 

plan that began in 2008. Amendment 37 would modify the rebuilding plan 

in response to the results from the 2011 SEDAR update assessment and 

subsequent SSC review and recommendations for the gray triggerfish ABC. 

The modified rebuilding plan would be based on a constant fishing 

mortality rate that does not exceed the fishing mortality rate at OY.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 

Assistant Administrator, NMFS, has determined that this proposed rule 

is consistent with the FMP, Amendment 37, the Magnuson-Stevens Act and 

other applicable law, subject to further consideration after public 

comment.

    This proposed 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 that this proposed rule, if implemented, would not have 

a significant economic impact on a substantial number of small 

entities. The factual basis for this determination is as follows:

    The purpose of this proposed rule is to end overfishing of gray 

triggerfish and rebuild the gray triggerfish stock by the end of 2017 

to achieve OY. The Magnuson-Stevens Act provides the statutory basis 

for this proposed rule. No duplicative, overlapping, or conflicting 

Federal rules have been identified. This proposed rule would not 

introduce any changes to current reporting, record-keeping, and other 

compliance requirements.

    This rule, if implemented, is expected to directly affect 

approximately 400 vessels that have a valid (non-expired) or renewable 

commercial Gulf reef fish permit. A renewable permit is an expired 

permit that may not be actively fished, but is renewable for up to 1 

year after permit expiration. Although over 900 vessels have a 

commercial Gulf reef fish permit, which is required to possess and sell 

quantities of gray triggerfish in excess of the recreational bag limit, 

only an average of 382 vessels per year harvested gray triggerfish 

during the period 2005 through 2009. More recent commercial landings 

data is either not available (2011 to current) or is not expected to be 

representative of normal fishing performance, i.e., the 2010 fishing 

year as a result of the Deepwater Horizon MC252 oil spill and 

associated fisheries closures. The average annual dockside revenue for 

commercial vessels that harvested gray triggerfish during this period 

was approximately $87,000 per vessel (2010 dollars).

    This rule, if implemented, is also be expected to directly affect 

1,366 vessels that possess a valid or renewable charter/headboat permit 

for Gulf reef fish (for-hire). The for-hire fleet is comprised of 

charterboats, which charge a fee on a vessel basis, and headboats, 

which charge a fee on an individual angler (head) basis. Although the 

for-hire permit does not distinguish between charterboats and 

headboats, an estimated 69 headboats operate in the Gulf. The average 

charterboat is estimated to earn approximately $77,000 (2010 dollars) 

in annual revenue, and the average headboat is estimated to earn 

approximately $234,000 (2010 dollars).

    NMFS has not identified any other small entities that would be 

expected to be directly affected by this proposed rule.

    The Small Business Administration has established size criteria for 

all major industry sectors in the U.S. including fish harvesters. 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 its affiliated operations worldwide. The revenue 

threshold for a business involved in the for-hire fishing industry is 

$7.0 million (NAICS code 713990, recreational industries). All 

commercial and for-hire vessels expected to be directly affected by 

this proposed rule are believed to be small business entities.

    Amendment 37, on which this proposed rule is based, addresses five 

basic actions: (1) Revision of the gray triggerfish rebuilding plan; 

(2) specification of the commercial and recreational gray triggerfish 

ACLs and ACTs; (3) establishment of a gray triggerfish commercial 

sector closed season and trip limit; (4) establishment of a gray 

triggerfish recreational closed season and bag limit; and (5) revision 

of the AMs for the gray triggerfish recreational sector.

    Rebuilding plans are not contained in the regulatory text 

associated with this proposed rule and are therefore outside the scope 

of the Regulatory Flexibility Act (RFA). Further, revision of the 

rebuilding plan would be an administrative action and, as a result, 

would not be expected to have any direct economic effects on any small 

entities. Direct effects of a rebuilding plan would only be expected to 

accrue to any resultant harvest restrictions implemented through a 

future rulemaking to achieve the goals of the

rebuilding plan. The proposed harvest restrictions encompass 

modification of the sector ACTs, fishing seasons, commercial trip 

limits, and recreational bag limits. The expected economic effects of 

these proposed modifications are discussed below.

    AMs are intended to ensure harvest overages do not occur and to 

correct or mitigate for overages if they do occur. In-season AMs are 

specifically intended to prevent or minimize harvest overages. The 

establishment of AMs, or their modification, would be an administrative 

action that would only be expected to have indirect effects on small 

entities. These effects would occur if the AMs are triggered. Because 

the proposed action would only modify and not implement the current 

AMs, no direct effects would be expected to accrue to any small 

entities. As a result, this component of the proposed rule is also 

outside the scope of the RFA.

    However, because the potential implementation of the proposed in-

season AM would be expected to restrict fishing operations and 

potentially result in direct short-term reductions in revenue and 

profit, further discussion of the potential significance of these 

effects is provided. The proposed in-season gray triggerfish 

recreational sector AM would result in closure of the gray triggerfish 

recreational season if the recreational sector ACT is reached or is 

projected to be reached. As a result, harvest and possession would be 

prohibited. Few, if any, fishing trips would be expected to be 

cancelled in response to a prohibition on the harvest and possession of 

gray triggerfish because anglers rarely target gray triggerfish: It was 

identified as a primary target species for less than 1/10th of 1 

percent of all fishing trips (2005-2009). Rather, gray triggerfish are 

often harvested incidental to fishing for other reef fish species. 

Because other, more desirable reef species would still be available for 

recreational harvest, any prohibition on the harvest or possession of 

gray triggerfish would not be expected to have a significant impact on 

a substantial number of small entities.

    Because gray triggerfish is not a significantly targeted species, 

the proposed overage adjustment if the recreational ACL is exceeded 

would also be expected to result in minimal, if any, reduction in 

revenue to small entities. Because of the combination of in-season 

closure authority, low total harvest and target effort, and the 

expected recovery of gray triggerfish, overage adjustments would be 

expected to be infrequent and, if necessary, require only minimal 

reductions in the recreational ACT. Therefore, few, if any, 

recreational trips would be expected to be lost and the revenue to 

small entities would not be expected to be significantly affected.

    Although Amendment 37 contained three proposed actions associated 

with the commercial harvest of gray triggerfish--specification of the 

ACT, establishment of the closed season, and establishment of a 

commercial trip limit--the expected economic effects of this rule would 

be determined primarily by the specification of the ACT. Individually, 

assuming no change in fishing behavior, the proposed commercial sector 

closed season and trip limit would be expected to result in a reduction 

in total annual revenue for all vessels that harvest gray triggerfish 

of approximately $26,000 and $72,000, respectively. All reductions are 

expressed in 2010 dollars. Combined, these two measures would be 

expected to result in a reduction in total annual revenue of 

approximately $88,000. This result is less than the total of the two 

individual proposed actions, approximately $98,000, because the 

proposed closed season would negate the expected effects of the trip 

limit during that period. However, the combined effects of these two 

proposed actions would not be expected to be sufficient to constrain 

commercial gray triggerfish harvest to the ACT and avoid an in-season 

closure. The proposed ACT, 60,900 lb (27,624 kg), would be expected to 

require a reduction in expected annual commercial harvest of 

approximately 118,000 lb (53,524 kg). The combined effects of the 

proposed commercial sector seasonal closure and trip limit would be a 

reduction in annual commercial harvest of approximately 92,000 lb 

(41,730 kg). Because commercial harvest would be prohibited when the 

commercial ACT is reached, the full necessary commercial sector harvest 

reduction would be expected to occur as a result of the three measures 

combined (seasonal closure, trip limit, and closure when the ACT is 

reached). Thus, although the total effect of the proposed seasonal 

closure and trip limit would be an expected reduction in annual revenue 

of approximately $88,000, the net effect of the proposed commercial 

ACT, seasonal closure, and trip limit would be a reduction in annual 

revenue of approximately $112,000. Distributed across all commercial 

sector entities expected to be directly affected by these proposed 

measures (382 vessels), the average expected effect would be a 

reduction in annual revenue of approximately $300 per entity, or less 

than one percent of the average annual revenue per vessel of $87,000. 

Although some vessels may be expected to experience a reduction in 

revenue by more than the average, overall, any reduction would not be 

expected to be significant because of the small amount of gray 

triggerfish traditionally harvested by commercial reef fish fishermen.

    Impacts on the recreational sector are expected to be similar to 

those affecting the commercial sector. The proposed gray triggerfish 

recreational ACT, seasonal closure, and recreational bag limit would be 

expected to individually result in an annual reduction in producer 

surplus, used as a proxy for profit, of approximately $295,000, 

$232,000, and $137,000, respectively. All reductions are expressed in 

2010 dollars and equal the combined effects of the proposed actions 

across all affected entities. Combined, the proposed seasonal closure 

and bag limit would be expected to result in an annual reduction in 

producer surplus of approximately $310,000, which would be less than 

the effects of the two individual proposed actions combined because of 

the interactive effects of the two proposed measures. The combined 

effects of these two proposed measures exceeds the expected effects of 

the proposed recreational ACT because the estimated reduction in 

harvest under the proposed seasonal closure and bag limit exceeds the 

reduction necessary to limit harvest to the proposed gray triggerfish 

recreational ACT and avoid an in-season closure. Thus, for the proposed 

actions affecting the recreational sector, the net expected economic 

effect would be determined by the combined effects of the proposed 

seasonal closure and bag limit rather than the proposed ACT.

    Unlike the case for the commercial sector, the number of vessels 

within the for-hire fleet that take trips targeting gray triggerfish 

cannot be determined with available data. If the projected reduction in 

producer surplus is distributed across all Gulf reef fish for-hire 

vessels (1,366 vessels), the average annual reduction in producer 

surplus would be approximately $230 (2010 dollars) per vessel, or 

approximately 1 percent in average annual profit per vessel 

(approximately $22,800 (2010 dollars)). Because all vessels would not 

be expected to target gray triggerfish, however, the average reduction 

in producer surplus per affected vessel would be expected to increase. 

However, the estimates of expected reduction in producer surplus 

associated with the proposed actions affecting the recreational sector 

were generated using a worst-case assumption. Specifically, the projected reductions in producer surplus 

were based on the assumption that recreational angler effort, and 

associated for-hire revenue, would be reduced proportionate to the 

change in allowable harvest. As previously discussed, gray triggerfish 

is regarded as a bycatch or general harvest species, harvested in 

connection with general reef fish fishing (no target species) or as a 

result of fishing for other reef fish species. As a result, instead of 

cancelling fishing trips, few if any for-hire vessels would be expected 

to experience a reduction in customer traffic, and associated revenue, 

as a result of either the proposed seasonal closure or reduced 

recreational bag limit. Instead, substitution of another target species 

during the proposed closed season and continued fishing at the proposed 

lower bag would be expected. As a result, the proposed actions 

affecting the recreational sector would not be expected to 

significantly reduce profits for a significant number of small for-hire 

entities.

    In summary, the proposed rule, if implemented, would not be 

expected to have a significant impact on a substantial number of small 

entities and, as a result, an initial regulatory flexibility analysis 

is not required and none has been prepared.