Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery off the Southern Atlantic Region; Regulatory Amendment 28

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues regulations to implement Regulatory Amendment 28 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP) (Regulatory Amendment 28), as prepared and submitted by the South Atlantic Fishery Management Council (Council). This final rule revises the commercial and recreational annual catch limits (ACLs) for golden tilefish in the South Atlantic. The purpose of this final rule is to end overfishing of golden tilefish while minimizing, to the extent practicable, adverse socio-economic effects and achieve optimum yield (OY) on a continuing basis.

DATES:

This final rule is effective on January 4, 2019.

ADDRESSES:

Electronic copies of Regulatory Amendment 28 may be obtained from the Southeast Regional Office website at http://sero.nmfs.noaa.gov. Regulatory Amendment 28 includes an environmental assessment (EA), a Regulatory Flexibility Act (RFA) analysis, a regulatory impact review (RIR), and a Fishery Impact Statement.

FOR FURTHER INFORMATION CONTACT:

Karla Gore, telephone: 727-824-5305; email: karla.gore@noaa.gov.

SUPPLEMENTARY INFORMATION:

The snapper-grouper fishery of the South Atlantic is managed under the FMP, and includes golden tilefish along with other snapper-grouper species. 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).

NMFS issued a temporary rule to implement interim measures to reduce the total annual catch limit (ACL), commercial and recreational sector ACLs, and quotas for the hook-and-line and longline components of the commercial sector on January 2, 2018 (83 FR 65). On June 19, 2018, NMFS extended the interim measures for an additional 186 days, through January 3, 2019 (83 FR 28387). On September 27, 2018, NMFS published a proposed rule for Regulatory Amendment 28 and requested public comment (83 FR 48788). Regulatory Amendment 28 and the proposed rule outline the rationale for the actions contained in this final rule. A summary of the actions implemented by Regulatory Amendment 28 and this final rule is provided below.

Background

The Magnuson-Stevens Act requires that NMFS and regional fishery management councils 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.

Golden tilefish are harvested by both commercial and recreational fishermen throughout the South Atlantic, although the majority of landings are attributed to the bottom longline component of the commercial sector. Using data through 2010, the golden tilefish stock was assessed in 2011 through the Southeast Data, Assessment, and Review (SEDAR) stock assessment process (SEDAR 25). SEDAR 25 results indicated that the golden tilefish stock was not subject to overfishing and was not overfished. Based upon the results of SEDAR 25, the final rule for Amendment 18B to the FMP specified ACL based upon the acceptable biological catch (ABC) recommendation from the Council's Scientific and Statistical Committee (SSC). The total ACL was distributed among the sectors and commercial gear components (i.e., bottom longline and hook and line) based on allocations specified in Amendment 18B (78 FR 23858; April 23, 2013). For golden tilefish, 97 percent of the combined (commercial and recreational sectors together) ACL is allocated to the commercial sector, with 25 percent of the commercial ACL available for harvest by the hook-and-line component and 75 percent of the commercial ACL available for the longline component. The recreational sector is allocated 3 percent of the combined ACL.

In April 2016, an update to the SEDAR 25 stock assessment was completed for golden tilefish using data through 2014 (SEDAR 25 Update 2016). In May 2016, the Council's SSC reviewed the updated assessment, determined the assessment was based on the best scientific information available, and provided an ABC recommendation. In a letter dated January 4, 2017, NMFS notified the Council of the updated golden tilefish stock status (SEDAR 25 Update 2016) determination that the stock is undergoing overfishing but is not overfished. As mandated by the Magnuson-Stevens Act, NMFS and the Council must prepare and implement a plan amendment and regulations to end overfishing of golden tilefish. Therefore, the Council began development of an amendment to end overfishing of golden tilefish. Because the ABC recommendation from the Council's SSC was not available until late October 2017, there was insufficient time for the Council and NMFS to develop and implement management measures to end overfishing of golden tilefish by the start of the 2018 fishing year on January 1, 2018. Consequently, in a letter to NMFS dated June 27, 2017, the Council requested that NMFS implement interim measures to immediately reduce overfishing of golden tilefish while long-term measures could be developed through Regulatory Amendment 28. A temporary rule, published in the Federal Register on January 2, 2018 (83 FR 65), reduced the combined ACL based on a projected yield at 75 percent of the yield produced by the fishing mortality rate at maximum sustainable yield (F = 75%F_MSY), which was 362,000 lb (164,654 kg), whole weight. Converting this value to gutted weight using a conversion factor of 1.12 provided a value of 323,000 lb (146,510 kg), gutted weight. On June 19, 2018 (83 FR 28387), the temporary rule was extended for an additional 186 days, through January 3, 2019.

Management Measures Contained in This Final Rule

This final rule revises the combined ACL for golden tilefish to be 342,000 lb (155,129 kg), gutted weight. In May 2016, the Council's SSC reviewed the SEDAR 25 assessment update and provided fishing level recommendations based on a P* (probability of overfishing) value of 30 percent derived from the Council's ABC control rule. However, at their March 2018 meeting, the Council determined that they were willing to accept a risk of overfishing at the level implemented through the temporary interim rule (F = 75%F_MSY) when the population is at equilibrium. Thus, the Council requested the SSC recommend an ABC based on F = 75%F_MSY, which represented a level closer to a P* value of 40 percent. At their May 2018 meeting, the SSC reviewed the Council's request to revise the ABC recommendation and agreed to change the ABC to the value at F = 75%F_MSY. Therefore, the SSC's most recent ABC recommendation was 362,000 lb (164,654 kg), whole weight.

This combined ACL specified in Regulatory Amendment 28 is equal to the Council's SSC ABC recommendation of 362,000 lb (164,654 kg), whole weight, when converted to gutted weight. The SEDAR 25 Update (2016) for golden tilefish used a whole weight to gutted weight conversion factor of 1.059, but the interim rule used a conversion value of 1.12. At their June 2018 meeting, the Council indicated that a conversion factor of 1.059 rather than a 1.12 was more appropriate to convert the ABC recommendation from whole weight to gutted weight. Both SEDAR 25 Update 2016 and the 1.059 conversion factor constitute the best scientific information available for golden tilefish. The SSC's ABC recommendation forms the basis for the actions in Regulatory Amendment 28 and this final rule, which is expected to end overfishing of golden tilefish in the South Atlantic.

This final rule also specifies the commercial and recreational sector ACLs and component commercial quotas using the existing sector allocations of 97 percent commercial and 3 percent recreational, as well as allocating 25 percent of the commercial ACL to the hook-and-line component and 75 percent of the commercial ACL to the longline component. Therefore, through this final rule, the commercial ACL (equivalent to the commercial quota) is 331,740 lb (150,475 kg), gutted weight. The commercial ACL for the hook-and-line component is 82,935 lb (37,619 kg), gutted weight, and the commercial ACL for the longline component is 248,805 lb (112,856 kg), gutted weight. The recreational ACL is 2,316 fish.

The reduction in the ACLs in this final rule is expected to end overfishing of golden tilefish and minimize future adverse socio-economic effects. Adhering to sustainable harvest through an ACL based on information from the most recent stock assessment (Southeast Data Assessment and Review (SEDAR) 25 2016 Update) is expected to be more beneficial to fishers and fishing communities in the long term because catch limits are based on the current conditions. The reduction in the ACLs in this final rule is expected to provide biological benefits (such as protections against recruitment failure) to the golden tilefish stock by reducing the levels of fishing mortality. The revised ACL values in Regulatory Amendment 28 and implemented through this final rule are based on the best scientific information available.

The measures in Regulatory Amendment 28, as described in this final rule, replace the current interim measures outlined in the temporary rule. Failure to implement Regulatory Amendment 28 by the expiration of the temporary rule (January 4, 2019) may risk overfishing of golden tilefish because ACLs will revert to higher levels in place prior to implementation of the temporary rule, and those levels exceed the SSC's most recent ABC recommendation. In addition, implementing Regulatory Amendment 28 by the expiration date of the temporary rule will avoid confusion among fishers and law enforcement with changing catch levels.

Comments and Responses

During the public comment period, NMFS received a total of 10 comments on Regulatory Amendment 28 and the proposed rule from individuals and fishing organizations. Of these, three comments supported the need for protection of golden tilefish, with which NMFS agrees. Two comments generally expressed support for golden tilefish harvest by the recreational sector and complained of increasing costs, but those comments were not directed to the ACL changes contained in the proposed rule; thus, they are considered to be outside the scope of Regulatory Amendment 28. Two additional comments were entirely unrelated to golden tilefish harvest and were, therefore, also outside the scope of Regulatory Amendment 28. Comments that were beyond the scope of Regulatory Amendment 28 and the proposed rule, are not addressed further in this final rule. Comments that specifically relate to the actions contained in the Regulatory Amendment 28 and the proposed rule, as well as NMFS' respective responses, are summarized below.

Comment 1: Regulatory Amendment 28 does not adequately consider the socio-economic impacts that will disproportionately impact the small fishing communities that are affected by the South Atlantic fishing industry.

Response: As described in the EA and the for Regulatory Amendment 28 and the proposed rule, the ACL reductions are necessary to end overfishing of golden tilefish in the South Atlantic. The Council and NMFS have adequately considered the socio-economic impacts through the socio-economic impact analysis developed in Regulatory Amendment 28 for implementing this final rule. NMFS conducted a RIR, an Initial Regulatory Flexibility Analysis (IRFA), and a Final Regulatory Flexibility Analysis (FRFA) that analyze the expected impacts of the actions in the regulatory amendment on the commercial and recreational sectors engaged in fishing for South Atlantic golden tilefish.

NMFS expects the reductions to the ACLs and quotas will result in adverse, short-term economic effects. These effects will apply directly on the participants of the golden tilefish commercial and recreational sectors and indirectly on the supporting industries, such as dealers, tackle and bait shops, and fishing communities. However, Regulatory Amendment 28 and this final rule will likely minimize future adverse socio-economic effects by ending overfishing of South Atlantic golden tilefish and preventing the stock from being overfished.

NMFS has determined that all entities directly affected by the management measures outlined in Regulatory Amendment 28 and this final rule are small entities as this term is defined in the Classification section of this rule, so that disproportionate impacts on small versus large entities are not expected to occur. However, effects on affected entities will not be uniform. In general, the larger the sector (e.g., commercial sector) or commercial component's (e.g., longline fishermen) percentage of the allocation, the greater the short-term adverse economic impacts will be. In addition, the more dependent a location or fishing community is on fishing for golden tilefish, the greater the adverse impacts will be on an area's fishing participants and supporting industries.

Comment 2: Why is the commercial ACL, listed in weight, significantly greater than the recreational ACL, which is given in numbers of fish?

Response: The commercial ACL is greater than the recreational ACL because 97 percent of the total ACL is allocated to the commercial sector and 3 percent to the recreational sector. The sector allocations were specified in 2010 (75 FR 82280; December 30, 2010). Regulatory Amendment 28 and this final rule revise the ACL for golden tilefish based on the ABC recommendation from the Council's SSC, but do not change the allocation of the ACL among the commercial and recreational sectors. This allocation was previously determined by the Council and NMFS to be fair and equitable, based on landings data, and considered the least disruptive to economic and social environments. The commercial ACL is further allocated into commercial quotas with 75 percent to the commercial longline sector and 25 percent to the commercial hook-and-line sector, as established in 2013 through Amendment 18B to the FMP (78 FR 23858; April 23, 2013). These quota allocations were also based on commercial landings data, as more of the commercial harvest is from the commercial longline component than the hook-and-line component.

The commercial allocation is listed in pounds (lb) of gutted weight (gw) and the recreational allocation is in numbers of fish. To convert the recreational ACL into numbers of fish, the recreational landings data collected through the Marine Recreational Information Program and Southeast Region Headboat Survey were used to calculate the average weight of South Atlantic golden tilefish. From 2012-2016, the average weights of recreational golden tilefish have ranged annually from 4.21 lb, gw to 5.11 lb, gw. Using these 5 years of data (2012-2016) provides an average weight of 4.43 lb, gw. Therefore, a conversion factor of 4.43 lb, gw per fish is used for converting the South Atlantic golden tilefish recreational ACL into numbers of fish.

Comment 3: There needs to be better data collected on golden tilefish instead of continuing to use limited existing data applied in inconsistent methods because it is irresponsible with the goal of achieving MSY.

Response: NMFS determined that the data used in Regulatory Amendment 28 represents the best scientific information available and that the data used in SEDAR 25 2016 Update is applied neither inconsistently nor irresponsibly. NMFS notes that Regulatory Amendment 28 and the final rule respond to the latest stock assessment for golden tilefish in the South Atlantic (SEDAR 25 Update 2016). The SEDAR 25 Update 2016 concluded that the stock is undergoing overfishing, but is not overfished.

The SEDAR 25 participants outlined the research needs for the golden tilefish stock assessment and these are contained in the SEDAR 25 Assessment Report. The next golden tilefish stock assessment, which will include a review of all existing data, is scheduled to begin in 2019.

The golden tilefish stock of the South Atlantic was assessed through the SEDAR process, which is a peer-reviewed cooperative effort to assess the status of stocks in the jurisdictions of the South Atlantic, Caribbean, and Gulf of Mexico Fishery Management Councils; as well as NMFS' Southeast Fisheries Science Center and Southeast Regional Office, and the NMFS Highly Migratory Species Division; and the Atlantic and Gulf States Marine Fisheries Commissions. SEDAR also relies on state agencies and universities throughout the region for research, data collection, and stock assessment expertise. Fishery-dependent and independent data were utilized in the stock assessment. All of the data sources used are further described in the SEDAR 25 Update 2016, which is available on the SEDAR website at http://sedarweb.org. The SEDAR website also provides supporting documentation that describes data collection programs and research findings.

The Council received the results of the assessment update from their SSC in June 2016, and Council members expressed concern over the large differences in biological benchmarks and fishing level recommendations between SEDAR 25 Update 2016 and SEDAR 25. Subsequently, the Council requested an updated stock assessment for golden tilefish.

To address the Council's concerns, in May 2017, the SEDAR Steering Committee agreed to revise the SEDAR 25 Update 2016, because a new golden tilefish stock assessment could not be completed in 2017. The SSC reviewed the 2017 revision to the SEDAR 25 Update 2016 at their October 2017 meeting and determined that it was unsuitable for management. Therefore, the best scientific information available for golden tilefish remains the SEDAR 25 Update 2016.

Classification

The Regional Administrator for the NMFS Southeast Region has determined that this final rule is consistent with Regulatory Amendment 28, the Magnuson-Stevens Act, and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866. This final rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

In compliance with section 604 of the RFA, NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) for this final rule. The FRFA incorporates the IRFA, a summary of the significant economic issues raised by public comments, NMFS' responses to those comments, and a summary of the analyses completed to support the action. The FRFA follows.

A description of this final rule, and its rationale, objectives, and legal basis are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. The Magnuson-Stevens Act provides the statutory basis for this final rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this final rule. Accordingly, this final rule does not implicate the Paperwork Reduction Act.

No comments specific to the IRFA were received from the public or from the Chief Counsel for the Advocacy of the Small Business Administration; however, there are comments that have socio-economic implications, and they are addressed in the Comments and Responses section, specifically in Comment 1.

No changes to the proposed rule were made in response to public comments. NMFS agrees that the Council's recommendation for the action will best achieve their objectives for this final rule while minimizing, to the extent practicable, the adverse effects on fishermen, support industries, and associated communities.

NMFS expects this final rule will directly affect all commercial vessels that harvest South Atlantic golden tilefish under the FMP. The change in the recreational ACL in this final rule will not directly affect or regulate for-hire businesses. Any impact to the profitability or competitiveness of for-hire fishing businesses will be the result of changes in for-hire angler demand and will therefore be indirect in nature. Under the RFA, recreational anglers who will be directly affected by this final rule, are not considered small entities, so they are outside the scope of this analysis and only the effects on commercial vessels were analyzed. For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

From 2012 through 2016, an average of 23 longline vessels per year landed golden tilefish from the South Atlantic. The Federal golden tilefish longline endorsement to the snapper-grouper permit started in 2013 upon implementation of the final rule for Amendment 18B to the snapper-grouper FMP (78 FR 23858; April 23, 2013). Endorsed vessels, combined, averaged 255 trips per year in the South Atlantic on which golden tilefish were landed, and 182 other trips that took place either in the South Atlantic (but no golden tilefish were caught) or in other areas (Gulf of Mexico or Mid-Atlantic) that caught any species including golden tilefish. The average annual total dockside revenue (2016 dollars) for these vessels combined was approximately $1.56 million from golden tilefish, approximately $0.10 million from other species co-harvested with golden tilefish (on the same trips), and approximately $0.43 million from other trips by these vessels on trips in the South Atlantic on which no golden tilefish were harvested or on trips which occurred in other areas. Total average annual revenue from all species harvested by longline vessels landing golden tilefish in the South Atlantic was approximately $2.10 million, or approximately $92,000 per vessel. Longline vessels generated approximately 74 percent of their total revenues from golden tilefish. For the same period, an average of 82 vessels per year landed golden tilefish using other gear types (mostly hook-and-line) in the South Atlantic. These vessels, combined, averaged 483 trips per year in the South Atlantic on which golden tilefish were landed and 2,862 trips taken in the South Atlantic on which golden tilefish were not harvested or trips that took place in other areas and caught any species including golden tilefish. The average annual total dockside revenue (2016 dollars) for these 82 vessels was approximately $0.36 million from golden tilefish, approximately $0.66 million from other species co-harvested with golden tilefish (on the same trips in the South Atlantic), and approximately $4.13 million from the other trips taken by these vessels. The total average annual revenue from all species harvested by these 82 vessels was approximately $5.16 million, or approximately $62,000 per vessel. Approximately 7 percent of these vessels' total revenues came from golden tilefish.

Based on the foregoing revenue information, all commercial vessels using longlines or hook-and-line gear affected by this final rule may be considered to be small entities. Because all entities expected to be directly affected by this final rule are assumed to be small entities, NMFS has determined that this final rule will affect a substantial number of small entities. However, since all affected entities are small entities, the issue of disproportionate effects on small versus large entities does not arise in the present case.

This final rule will reduce the combined stock ACL, and consequently the ACLs for the commercial and recreational sectors as well as the longline and hook-and-line component ACLs of the commercial sector. The longline and hook-and-line components of the commercial sector will be expected to lose approximately $592,000 ($25,739 per vessel) and $217,000 ($2,646 per vessel) respectively, in annual ex-vessel revenues. This will very likely translate to profit reductions for both the longline and hook-and-line components, particularly for longline vessels, as they are more dependent on golden tilefish. As noted above, golden tilefish account for about 74 percent of longline vessel revenues and 7 percent of hook-and-line vessel revenues. The ACLs may be changed in the future if this final rule is successful in addressing the overfishing condition for the South Atlantic golden tilefish. Economic benefits would ensue if the ACLs are subsequently increased based on an improved stock status.

The following discussion analyzes the alternatives that were considered by the Council, including those that were not selected as preferred by the Council. Unlike the preferred alternative, six of the other alternatives would provide for varying ACLs over 6 years, at least. For this reason, a 6-year period is considered for comparing alternatives. To carry out a 6-year comparison, the ACL under the preferred alternative is kept constant for 6 years. It is noted that a stock assessment for golden tilefish would be completed in 2019, so the Council may opt to revise the ACL in 2020 or later. Over a 6-year period with constant ACL, the preferred alternative will be expected to reduce revenues by approximately $3.02 million for the longline component and $1.11 million for the hook-and-line component of the commercial sector, using a 7 percent discount rate.

Ten alternatives, including the preferred alternative as described above, were considered for reducing the South Atlantic golden tilefish ACLs. The first alternative, the no action alternative, would maintain the current economic benefits to all participants in the South Atlantic golden tilefish component of the snapper-grouper fishery. This alternative, however, would not address the need to end overfishing of the stock, thereby increasing the likelihood that more stringent measures would need to be implemented in the near future.

With one exception, all the other alternatives would result in larger revenue losses to the longline and hook-and-line vessels than the preferred alternative. Alternatives that would result in larger revenue losses than the preferred alternative would provide for lower ACLs over a 6-year period. Total losses over 6 years from these alternatives would range from $3.17 million to $4.29 million for longline vessels and from $1.16 million to $1.83 million for hook-and-line vessels. The alternative with lower attendant revenue losses than the preferred alternative would be expected to reduce total ex-vessel revenues by approximately $2.65 million for longline vessels and $0.97 million for hook-and-line vessels over 6 years. Relative to the preferred alternative, this alternative would result in larger ex-vessel revenue losses initially but lower revenue losses in subsequent years, because the ACLs in subsequent years would be greater than those of the preferred alternative. Both alternatives would be expected to result in early harvest closures as a result of reaching the ACL during the fishing year, and in the first fishing year, harvest closure under the preferred alternative would occur later than that of the other alternative. The reverse may be expected for the subsequent years. The Council considered the preferred alternative as affording the best means to end overfishing of golden tilefish in the South Atlantic, because it is based on the best scientific information available.

List of Subjects in 50 CFR Part 622

• Annual catch limit
• Fisheries
• Fishing
• Golden tilefish
• Snapper-grouper
• South Atlantic

For the reasons set out in the preamble, 50 CFR part 622 is amended 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 § 622.190, revise paragraphs (a)(2)(i) through (iii) to read as follows:

3. In § 622.193, revise paragraphs (a)(1)(i) through (iii), and (a)(2), to read as follows: