Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Lane Snapper Catch Limits

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS proposes to implement management measures described in an abbreviated framework action under 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 proposed rule would modify the Gulf of Mexico (Gulf) lane snapper catch limits. The purpose of this proposed rule is to modify the Gulf lane snapper catch limits based on the best scientific information available. This proposed rule would also revise reporting and compliance requirements for Gulf reef fish commercial permit holders using vessel monitoring systems (VMS).

DATES:

Written comments must be received by July 17, 2024.

ADDRESSES:

A plain language summary of this proposed rule is available at https://www.regulations.gov/docket/NOAA-NMFS-2024-0049 . You may submit comments on this document, identified by [NOAA-NMFS-2024-0049] by either of the following methods:

• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Visit https://www.regulations.gov and type NOAA-NMFS-2024-0049, in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments.
• Mail: Submit all written comments to Dan Luers, NMFS Southeast Regional Office, 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 https://www.regulations.gov without change. All personal identifying information ( e.g., name, address), 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).

Electronic copies of the abbreviated framework action, which includes a Regulatory Flexibility Act (RFA) analysis and a regulatory impact review, may be obtained from the Southeast Regional Office website at https://www.fisheries.noaa.gov/action/gulf-mexico-lane-snapper-catch-limits-abbreviated-framework .

FOR FURTHER INFORMATION CONTACT:

Dan Luers, NMFS Southeast Regional Office, telephone: 727-824-5305, email: daniel.luers@noaa.gov.

SUPPLEMENTARY INFORMATION:

NMFS and the Council manage the Gulf reef fish fishery, which includes lane snapper, under the FMP. The FMP was prepared by the Council, approved by the Secretary of Commerce, and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

Background

The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing and achieve, on a continuing basis, the optimum yield (OY) from federally managed fish stocks. These mandates are intended to ensure 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.

Unless otherwise noted, all weights in this proposed rule are in round weight.

Lane snapper occur in estuaries and shelf waters of the Gulf, and are particularly abundant off south and southwest Florida. Lane snapper in the Gulf exclusive economic zone are managed as a single stock, with a combined annual catch limit (ACL) for the commercial and recreational sectors that is set equal to the acceptable biological catch (ABC). The fishing season is open year-round, January 1 through December 31. Currently, the lane snapper overfishing limit (OFL) is 1,053,834 pounds (lb) (478,011 kilograms (kg)) and the ABC is 1,028,973 lb (466,734 kg). These catch limits are based on the results of an update to the Southeast Data, Assessment, and Review 49 (SEDAR 49) that was completed in 2019, and used recreational landings estimates generated by the Marine Recreational Information Program (MRIP) Fishing Effort Survey (FES) instead of the previous MRIP-Coastal Household Telephone Survey.

This abbreviated framework action and proposed rule would increase the lane snapper OFL, ABC, and ACL based on the results of the SEDAR 49 interim analysis (IA) and recommendations from the Council's Scientific and Statistical Committee. The SEDAR 49 IA included updated landings and dead discards information as well as an updated catch-per-unit-effort index for the headboat fleet.

Management Measures Contained in the Abbreviated Framework Action and This Proposed Rule

The abbreviated framework action and proposed rule would increase the lane snapper OFL from 1,053,834 lb (478,011 kg) to 1,116,331 lb (506,359 kg), the ABC from 1,028,973 lb (466,734 kg) to 1,088,873 lb (493,904 kg), and set the stock ACL equal to the ABC at 1,088,873 lb (493,904 kg). This would result in an increase in the allowable harvest of 59,900 lb (27,170 kg).

Proposed Changes to Regulations Not Associated With the Abbreviated Framework Action

For fishermen with a valid Federal commercial permit to harvest Gulf reef fish, NMFS is proposing revisions to the process for requesting a power-down exemption to the VMS requirement. NMFS is also proposing to remove the requirement that the vessel owner or operator certify compliance with the proper installation and activation of a VMS unit. NMFS expects both of these changes to reduce the burden on individual fishermen and NMFS, and increase enforceability.

Regulations at 50 CFR 622.28(a) require the owner or operator of a vessel that has been issued a commercial permit for Gulf reef fish to maintain an operational satellite-linked VMS unit on the vessel that transmits the location of the vessel on a regular and consistent basis. Regulations at 50 CFR 622.28(d) allow an owner or operator to power down the VMS unit if the vessel will be continuously out of the water or in port more than 72 consecutive hours. The regulations at 50 CFR 622.28(d) also specify the process for requesting this power-down exemption, which includes obtaining a letter of exemption from the NMFS Office of Law Enforcement (OLE), filing a report through the VMS terminal prior to each power down, and entering the power-down code in the VMS terminal prior to each prior down.

When VMS was first required, the process to request a power-down exemption was not included in the regulations; instead, the regulations referred to the NOAA Enforcement Draft VMS Requirements that were included in Appendix E to Amendment 18A to the FMP (71 FR 45248, August 9, 2006). When NMFS revised the VMS regulations in 2007, NMFS added to the regulations the process for requesting a power-down exemption (72 FR 73270, December 27, 2007). Technology now allows for use of an online form and immediate authorization by NMFS.

Therefore, NMFS is proposing to modify the process for submitting the power-down exemption, including how and what information is collected. The owner or operator of the permitted vessel would use an online form to request the VMS power-down exemption. The information requested on the online form would be similar to the current form. The only change to the data collected would be a field for an email address for the person making the request and their self-identification as the vessel owner or operator. NMFS expects the online form to allow for faster communication and approval for the requester, and to streamline the administrative process by eliminating the need for manual data entry. NMFS would use the self-identification to confirm that the submitter is authorized to submit the request as the vessel owner or operator.

If all of the required information is provided, the authorization for the power-down exemption would be provided automatically as a visible display soon after the time of submission, and would also be sent to the email address provided by the requester and, if different from the requester, to the permit holder's email address if NMFS was provided that information as part of the permit holder's previous permit application. Vessel owners and operators would no longer send an email from the VMS unit on the vessel to NMFS OLE, or enter the power-down code using the VMS declaration form on the VMS terminal.

A power-down exemption would be valid until the expiration date requested, which NMFS would limit to not more than 1 year from the authorization date. A new request for a power-down exemption would be required after the completion of the previous authorization for any subsequent time period. There would be no limit on the number of exemptions that can be requested.

If a vessel owner or operator wants to end a power-down exemption before the expiration date, the authorization would end automatically when the vessel owner or operator submits a commercial trip declaration. Alternatively, the vessel owner or operator may contact NMFS OLE to end the power-down exemption.

In addition to the changes to the power-down exemption regulations, NMFS proposes to remove the current requirements at 50 CFR 622.28(f)(1) through (3) for a vessel owner or operator to submit a form certifying that a qualified marine electrician has installed and activated a NMFS-approved VMS unit on the vessel. The intent of the form, “Vessel Monitoring System (VMS) Installation and Activation Certification for the Reef Fish Fishery of the Gulf of Mexico,” was to provide NMFS with additional assurance that a vessel owner or operator is compliant with the requirements to install and activate an approved VMS unit. However, NMFS has determined that the compliance form is overly burdensome and has little utility. To accomplish the same purpose as the form, NMFS intends to add a check-box certification to the permit application that is required when a commercial reef fish permit is renewed or transferred. In addition, NMFS can detect whether a unit is operational. The existing requirement for a qualified marine technician to install the VMS unit would remain in § 622.28(f).

Classification

NMFS is issuing this rule pursuant to sections 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act, which provide the specific authority and procedure for implementing this action. Section 304(b)(1)(A) authorizes NMFS to issue proposed regulations prepared and recommended by the Council under section 303(c), and section 305(d) of the Magnuson-Stevens Act authorizes NMFS to propose regulations necessary to carry out an FMP. This action is necessary to carry out the FMP because it would reduce the compliance burden on the owners and operators of commercial reef fish vessels and increase the enforceability of the VMS requirement applicable to vessels issued commercial fish permits. The NMFS Assistant Administrator has determined that this proposed rule is consistent with the abbreviated framework action, the FMP, other provisions of 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 Magnuson-Stevens Act provides the legal basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. The first objective of this proposed rule is to update existing Gulf lane snapper catch limits based on the best scientific information available to achieve OY for Gulf lane snapper while preventing overfishing, consistent with the requirements of the Magnuson-Stevens Act. The second objective of this proposed rule is to revise VMS related reporting requirements for commercial Gulf reef fish permit holders to be consistent with NMFS OLE's current practices and to remove the requirement to provide the certification of installation and activation.

The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, will not have a significant economic impact on a substantial number of small entities. A description of the factual basis for this determination follows. All monetary estimates in the following analysis are in 2022 dollars.

The abbreviated framework action and proposed rule would revise the OFL, ABC, and stock ACL for Gulf lane snapper from 1,053,834 lb (478,011 kg), 1,028,973 lb (466,734 kg), and 1,028,973 lb (466,734 kg), respectively, to 1,116,331 lb (506,359 kg), 1,088,873 lb (493,904 kg), and 1,088,873 lb (493,904 kg) respectively. Because all the current and proposed catch limits were both derived, in part, using MRIP-FES data, they are directly comparable.

In addition, NMFS is proposing to revise existing requirements for the collection of information approved under Office of Management and Budget (OMB) Control Number 0648-0544, Southeast Region Vessel Monitoring System and Related Requirements. This proposed rule would revise the process for fishermen to request a VMS power-down exemption, including how and what information is collected, and the valid period of an exemption. This proposed rule would also remove an existing requirement for a vessel owner or operator to submit a form certifying that a qualified marine electrician has installed and activated a NMFS-approved VMS unit on the vessel, and that NMFS personnel have verified its operation. This proposed rule contains a collection-of-information requirement subject to review and approval by the OMB under the Paperwork Reduction Act (PRA).

A valid commercial Gulf reef fish vessel permit is required in order for commercial fishing vessels to legally harvest reef fish species in the Gulf. As of August 26, 2021, there were 814 vessels that possessed a valid commercial Gulf reef fish vessel permit. Ownership data regarding vessels that harvest Gulf reef fish are incomplete. Therefore, it is not currently feasible to accurately determine affiliations between these particular vessels. Because of the incomplete ownership data, for purposes of this analysis, NMFS assumes each of these vessels is independently owned by a single business, which is expected to result in an overestimate of the actual number of businesses directly regulated by this proposed action. Thus, NMFS assumes this proposed rule would regulate 814 commercial fishing businesses.

Although the proposed changes to the stock ACL would apply to recreational anglers, under the RFA, recreational anglers are not considered to be entities. Small entities include small businesses, small organizations, and small governmental jurisdictions (5 U.S.C. 601(6) and 601(3)-(5)). Recreational anglers are not businesses, organizations, or governmental jurisdictions and so they are outside the scope of this analysis (5 U.S.C. 603).

A valid charter vessel/headboat (for-hire) Gulf reef fish vessel permit is required in order for for-hire vessels to legally harvest lane snapper in the Gulf. NMFS does not possess complete ownership data regarding vessels that hold charter vessel/headboat Gulf reef fish vessel permits, and thus potentially harvest lane snapper. Therefore, NMFS is not currently able to accurately determine affiliations between these vessels and the businesses that own them. As a result, for purposes of this analysis, NMFS assumes each for-hire vessel is independently owned by a single business, which is expected to result in an overestimate of the actual number of for-hire fishing businesses regulated by this proposed rule.

This proposed rule would only be expected to alter the fishing behavior of for-hire vessels that target lane snapper in the Gulf ( i.e., the behavior of for-hire vessels that incidentally harvest lane snapper in the Gulf is not expected to change). Therefore, only for-hire vessels that target lane snapper in the Gulf are expected to be directly affected by this proposed rule.

NMFS does not possess data indicating how many for-hire vessels actually harvest or target Gulf lane snapper in a given year. However, in 2020, there were 1,289 vessels with valid charter vessel/headboat Gulf reef fish vessel permits. Further, Gulf lane snapper is primarily targeted in waters off the west coast of Florida. Of the 1,289 vessels with valid charter vessel/headboat Gulf reef fish vessel permits, 803 were homeported in Florida. Of these permitted vessels, 62 are primarily used for commercial fishing rather than for-hire fishing purposes and thus are not considered for-hire fishing businesses. In addition, 46 of these permitted vessels are considered headboats. Although headboats are considered for-hire fishing businesses, they take a relatively large, diverse set of anglers to harvest a diverse range of species on a trip, and therefore do not typically target a particular species. Therefore, NMFS assumes that no headboats would be directly affected as a result of this proposed rule. However, charter vessels often target lane snapper. Of the 803 vessels with valid charter vessel/headboat Gulf reef fish vessel permits that are homeported in Florida, 695 vessels are charter vessels. As described in the abbreviated framework action, 76 percent of charter vessels with valid charter vessel/headboat permits in the Gulf were active in 2017 ( i.e., 24 percent were not fishing). A charter vessel would only be directly affected by this proposed rule if it is fishing. Given this information, NMFS' best estimate of the number of charter vessels that are likely to target Gulf lane snapper in a given year is 528. Thus, this proposed regulatory action is estimated to regulate 528 for-hire fishing businesses if finalized.

On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts (revenue) for all businesses primarily engaged in the commercial fishing industry (NAICS code 11411) for RFA compliance purposes only (80 FR 81194, December 29, 2015). In addition to this gross revenue standard, a business primarily involved in commercial fishing is classified as a small business if it is independently owned and operated, and is not dominant in its field of operations (including its affiliates). From 2018 through 2022, the maximum annual gross revenue earned by a single commercial reef fish vessel during this time was about $3.63 million, while the average annual gross revenue for a vessel commercially harvesting Gulf lane snapper was $63,698. Based on this information, all commercial fishing businesses regulated by this proposed rule are determined to be small entities for the purpose of this analysis.

The SBA has established that a business primarily involved in for-hire fishing (NAICS code 487210) 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 annual receipts (revenue) not in excess of $14.0 million for all its affiliated operations worldwide. The maximum annual gross revenue for a single headboat in the Gulf was about $1.45 million in 2017. On average, annual gross revenue for headboats in the Gulf is about three times greater than annual gross revenue for charter vessels, reflecting the fact that businesses that own charter vessels are typically smaller than businesses that own headboats. Based on this information, all for-hire fishing businesses regulated by this proposed rule are determined to be small businesses for the purpose of this analysis.

If implemented, NMFS expects this proposed rule to directly affect the 814 commercial fishing businesses that possess a valid commercial Gulf reef fish permit. Further, NMFS expects this proposed rule to directly affect 528 of the 1,227 for-hire fishing businesses with valid Federal charter vessel/headboat permits in the Gulf reef fish fishery, or approximately 43 percent of those for-hire fishing businesses. For the purpose of this analysis, all affected commercial and for-hire fishing businesses are small entities. Based on this information, NMFS expects the proposed rule to affect a substantial number of small entities.

For vessels that commercially harvest lane snapper in the Gulf, currently available data indicate that economic profits are approximately 32 percent of annual average gross revenue. Given that their average annual gross revenue is $63,698, annual average economic profit per vessel is estimated to be approximately $20,383.

As noted above, the abbreviated framework action and this proposed rule would increase the stock ACL from 1,028,973 lb (466,734 kg) to 1,088,873 lb (493,904 kg). This increase in the stock ACL would increase the amount of lane snapper available for harvest by the commercial sector. Based on the commercial and recreational sector-specific landings from 2018-2022, the recreational sector has accounted for 97.26 percent of landings, while the commercial sector has accounted for 2.74 percent of landing. If this current relative sector usage persists, NMFS expects the increase of 59,900 lb (27,170 kg) to the lane snapper stock ACL to allow the commercial sector to utilize an additional 1,641 lb (744 kg). NMFS expects this increase in commercial landings to have a minimal increase on the average ex-vessel price due to a relatively high number of substitute products ( e.g., imports, other reef fish species landed in the Gulf and South Atlantic, etc.). Thus, assuming the average ex-vessel price of $3.35/lb, gutted weight, from 2018-2022, NMFS expects the annual gross revenue to increase by $5,498 and economic profit to increase by $1,759. On a per vessel basis, NMFS expects annual gross revenue and economic profit to increase by $18 and $10, respectively.

As described in the abbreviated framework action, the average annual economic profits are approximately $27,000 per charter vessel. The proposed action to change the total OFL, ABC, and stock ACL for Gulf lane snapper would increase the total amount of lane snapper available for harvest by the recreational sector. If current relative sector usage persists, the increase of 59,900 lb (27,170 kg) to the lane snapper stock ACL would allow the recreational sector to utilize an additional 58,259 lb (26,426 kg).

The change to the Gulf lane snapper stock ACL may cause a change in the number of recreational targeted trips. In the long run, factors of production, such as labor and capital, can be used elsewhere in the economy, and so only short-term changes to economic profits are expected. In the Gulf, headboat trips take a diverse set of anglers on a single vessel, generally advertising a diverse range of species to be caught. Therefore, an assumption that no headboat trips would be gained due to a change in ACL would be reasonable. However, charter vessel trips that are targeting lane snapper may be added and are the focus of the recreational sector analysis. Based on the predicted closure dates under the 3-year average (2018-2020) and 5-year average (2018-2022) as shown in the abbreviated framework action, the recreational season is not expected to close early under either the proposed or current ACLs. Therefore, the proposed ACL would not be expected to lengthen the recreational season and provide additional charter trips, and therefore no changes to for-hire profits are expected as a result of this proposed regulatory action.

If implemented, NMFS expects the proposed VMS power-down exemption changes to decrease the number of respondents per year and decrease the number of annual responses. Public reporting burden for requesting a VMS power-down exemption is expected to be reduced per entity due to faster to completion rates with the online form, as opposed to filling out and mailing a paper-based form with postage and waiting for a response from NMFS OLE to be delivered by postal mail. However, NMFS expects an increase in the total number of annual power down exemption requests due to NMFS' increased outreach to participants on the requirement to submit a power down exemption request before turning off their VMS unit. Opportunity costs are associated with any time burden created by reporting requirements. Typically, opportunity cost is approximated using the average wage or salary of those covered by the requirement. Vessel owners or operators would be responsible for submitting the VMS power-down exemption, and thus use of the average wage of first line supervisors and managers in the fishing, forestry, and farming industries is appropriate. As of May 2023, which is the most currently available information, the Bureau of Labor Statistics reported that the mean wage of individuals in this occupation group was $28.28. The revised VMS power-down exemption would apply to all 814 actively permitted Gulf reef fish vessels. The annual fleet-wide time burden associated with this revision would be increased from 12.5 hours to 21.75 hours, or an increase of 9.25 total burden hours. Thus, the public reporting burden per vessel is expected to increase by approximately 0.01 hours per year. This results in an increase in opportunity cost of approximately $0.32 per business per year, which is trivial relative to the average annual gross revenue for a commercial Gulf reef fish vessel. The total cost savings in postage resulting from changes to the VMS power-down exemption per vessel is approximately $0.66 per year. Based on the analysis above, the additional costs per business resulting from the VMS power down exemption revisions are expected to be minimal.

If implemented, NMFS OLE expects the removal of the VMS Installation and Activation Certification for the Reef Fish Fishery of the Gulf of Mexico changes to decrease the number of respondents per year and decrease the number of annual responses. Removing the required form to certify an installed and activated VMS unit, as proposed, would remove the associated annual time burden and costs from respondents. The revised VMS Installation and Activation Certification would apply to all 814 actively permitted Gulf reef fish vessels. The annual fleet-wide time burden associated with this revision would be decreased from 593.3 hours to 2.67 hours, or a reduction of 590.63 total burden hours. Thus, the total decrease in time burden per vessel is approximately 0.73 hours per year. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. This results in a reduction in opportunity cost of approximately $20.20 per business per year.

Based on the information above, NMFS does not expect a reduction in profits for a substantial number of small entities as a result of this proposed rule. Thus, this proposed rule would not have a significant economic impact on a substantial number of small entities and an initial regulatory flexibility analysis is not required and none has been prepared.

This proposed rule contains a collection-of-information requirement subject to review and approval by the OMB under the PRA. NMFS is proposing to revise existing requirements for the collection of information approved under OMB Control Number 0648-0544, Southeast Region Vessel Monitoring System and Related Requirements. This proposed rule would revise the process for fishermen to request a VMS power-down exemption, including how and what information is collected, and the valid period of an exemption. This proposed rule would also remove an existing requirement for a vessel owner or operator to submit a form certifying that a qualified marine electrician has installed and activated a NMFS-approved VMS unit on the vessel, and that NMFS personnel have verified its operation.

NMFS seeks public comment regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Submit comments on these or any other aspects of the collection of information at https://www.reginfo.gov/public/do/PRAMain .

Notwithstanding any other provision of the law, no person is required to respond to, nor will any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 622

• Commercial
• Fisheries
• Fishing
• Gulf
• Lane snapper
• Recreational
• Reef fish
• Vessel monitoring systems

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 622 as follows:

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

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

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

2. In § 622.28, revise paragraphs (d) and (f) to read as follows:

3. In § 622.41, revise paragraph (k) to read as follows: