[Federal Register Volume 75, Number 200 (Monday, October 18, 2010)]
[Proposed Rules]
[Pages 63786-63791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26198]



[[Page 63786]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 100806332-0491-01]
RIN 0648-BA02


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Gag Grouper Management 
Measures

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

ACTION: Proposed temporary rule; request for comments.

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SUMMARY: NMFS issues this proposed temporary rule that would implement 
interim measures to reduce overfishing of gag in the Gulf of Mexico 
(Gulf). This proposed rule would reduce the commercial quota for gag 
and, thus, the combined commercial quota for shallow-water grouper 
species (SWG), prohibit recreational harvest of gag, and suspend red 
grouper multi-use allocation in the Gulf grouper and tilefish 
individual fishing quota (IFQ) program, as requested by the Gulf of 
Mexico Fishery Management Council (Council). The intended effect of 
this proposed rule is to reduce overfishing of the gag resource in the 
Gulf.

DATES: Written comments must be received on or before November 2, 2010.

ADDRESSES: You may submit comments on the proposed rule identified by 
NOAA-NMFS-2010-0168 by any of the following methods:
     Electronic submissions: Submit electronic comments via the 
Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
     Mail: Peter Hood, Southeast Regional Office, NMFS, 263 
13th Avenue South, St. Petersburg, FL 33701.
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. All comments received are a part 
of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
field if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Comments received through means not specified in this rule will not 
be considered.
    Copies of documents supporting this proposed rule, which include an 
environmental assessment and an initial regulatory flexibility analysis 
(IRFA), may be obtained from Peter Hood, Southeast Regional Office, 
NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone: 727-824-5305 or 
e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico 
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).

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. To further this goal, the Magnuson-
Stevens Act requires fishery managers to end overfishing of stocks 
while achieving, on a continuing basis, the OY from each fishery, and 
to minimize bycatch and bycatch mortality to the extent practicable.
    In a letter dated August 11, 2009, NMFS informed the Council that 
gag are overfished and undergoing overfishing. Under section 304(e) of 
the Magnuson-Stevens Act, after a Council has been notified of a 
stock's overfishing status, a fishery management plan or plan amendment 
must be developed and implemented within two years of notification, to 
end overfishing and rebuild the stock. The Council is currently 
developing Amendment 32 to the FMP which includes measures to end 
overfishing of gag and establish a rebuilding plan for the gag stock. 
However, because Amendment 32, if approved, would not likely be 
implemented until late 2011 or the beginning of 2012, this temporary 
rule contains management measures intended to address overfishing of 
gag on an interim basis. NMFS proposes a reduced commercial quota for 
gag of 100,000 lb (45,359 kg), a reduced commercial SWG quota of 4.83 
million lb (2.19 million kg), a suspension of red grouper multi-use 
shares in the Gulf grouper and tilefish IFQ program, and a prohibition 
on the recreational harvest of gag. These measures will remain in 
effect for 180 days, with the possibility of extending for another 186 
days, unless amended by subsequent rulemaking.

Status of Stock

    The Southeast Data, Assessment, and Review (SEDAR) update 
assessment for gag was conducted in April 2009, with the objective of 
updating the 2006 SEDAR 10 gag benchmark assessment. Data sources for 
the update assessment included both fishery-dependent and fishery-
independent data through 2008. The Council's Scientific and Statistical 
Committee (SSC) recommended a model that allows the natural mortality 
rate from 2005, a year when there was an extensive red tide event along 
the West Florida Shelf, to adjust above the base natural mortality 
rate. This corresponds to an 18-percent mortality rate. The SSC 
recommended an acceptable biological catch (ABC) of 1.17 million lb 
(0.53 million kg) which is the 2011 yield estimated by the fishing 
mortality rate (F) needed to rebuild the stock in 10 years.
    In the course of developing management alternatives for gag, 
potential inconsistencies in commercial and recreational estimates of 
discards were discovered. Preliminary estimates of commercial gag 
discards provided by NOAA's Southeast Fisheries Science Center (SEFSC) 
indicated commercial discards were two orders of magnitude greater when 
estimated using reef fish observer data compared with methods used in 
the SEDAR update assessment for the stock. Additionally, size and age 
distributions computed for recreational discards in the update 
assessment indicated most discards were close to the minimum size limit 
in more recent years. However, Mote Marine Laboratory tagging data and 
headboat and Florida Fish and Wildlife Conservation Commission observer 
data indicated a broader size range for discarded fish. The Council 
discussed these discrepancies at their August 2010 meeting and agreed 
that another review of the gag assessment would be conducted in the 
fall or winter of 2010 to address these discrepancies. Therefore, NMFS 
anticipates a subsequent rulemaking after the review

[[Page 63787]]

has been completed based on revised assessment information.
    A red grouper update assessment was conducted at same time as the 
gag update assessment. Because of the difference in how recreational 
discard size distributions were estimated between the assessments, the 
discrepancies in discard information did not trigger the same concerns 
for red grouper. Therefore, the Council did not make a similar request 
for the red grouper assessment to be reviewed. However, the Council did 
recognize the effects discard estimation could have on the assessment 
and, therefore, requested the SEFSC to review observer discard 
information to determine the magnitude of these effects for red 
grouper.

Grouper and Tilefish IFQ Program

    The commercial sector is currently managed under an IFQ program 
implemented in January 2010. Under this program, each qualifying 
fisherman was allocated IFQ shares based on historical participation in 
the grouper and tilefish component of the Gulf reef fish fishery. Each 
year, fishermen receive allocation based on the current quota and the 
amount of shares each holds. To allow for flexibility and to reduce 
bycatch, at the beginning of each fishing year, a percentage of each 
fisherman's gag and red grouper allocations are designated as multi-use 
allocations. The IFQ program designates 4 percent of red grouper 
allocation and 8 percent of gag allocation to multi-use allocation. Red 
grouper multi-use allocation is allocation that may be used to harvest 
red grouper after all of an IFQ account holder's (shareholder or 
allocation holder's) red grouper allocation has been used or 
transferred; and to harvest gag after both gag and gag multi-use 
allocation has been used or transferred. Gag multi-use allocation is 
allocation that may be used to harvest gag after all of an IFQ account 
holder's (shareholder or allocation holder's) gag allocation has been 
used or transferred; and to harvest red grouper after both red grouper 
and red grouper multi-use allocation has been used or transferred. 
However, using all of the current red grouper multi-use allocations to 
harvest gag, alone could result in gag commercial landings exceeding 
the quota. This action does not reduce the overall red grouper 
allocation but will prohibit the conversion of red grouper multi-use 
allocation that could lead to additional gag landings.

Management Measures Contained in This Proposed Rule

    This interim rule would reduce the commercial quota for gag to 
100,000 lb (45,359 kg). This quota would be released at the beginning 
of the 2011 fishing year so IFQ participants would have the opportunity 
to fish their allocation throughout the year.
    The SSC had previously recommended a commercial gag quota of 
390,000 lb (176,901 kg). However, because of the method by which dead 
discards were calculated in the gag update assessment, the review of 
the update assessment could result in a lower allowable harvest. This 
lower harvest would be implemented through Amendment 32 to the FMP. If 
NMFS were to prohibit commercial harvest completely through this 
interim rule, then any gag incidentally caught when fisherman target 
other reef fish would result in discards. Therefore, the Council 
requested, and NMFS proposes a quota of 100,000 lb (45,359 kg), which 
would allow a minimum level of incidentally caught gag to be retained 
and counted against the commercial quota.
    Because of the proposed reduction in the gag commercial quota, the 
commercial quota for SWG is proposed to be reduced to 4.83 million lb 
(2.19 million kg). Within the SWG quota are separate quotas for gag and 
red grouper. The other SWG species included in this combined quota 
include black grouper, scamp, yellowfin grouper, rock hind, red hind, 
and yellowmouth grouper. Additionally, for the purposes of the IFQ 
program for Gulf groupers and tilefishes in Sec.  622.20(b)(2)(v), 
speckled hind and warsaw grouper are considered SWG species under 
certain circumstances. After all of an IFQ account holder's deep-water 
grouper (DWG) allocation has been landed and sold, or transferred, or 
if an IFQ account holder has no DWG allocation, then other SWG 
allocation may be used to land and sell speckled hind and warsaw 
grouper. In this interim rule, the reduction of the SWG quota directly 
corresponds to the amount of the reduction in the commercial quota for 
gag.
    This interim rule would also suspend red grouper multi-use 
allocation to ensure the gag commercial quota is not exceeded. Red 
grouper multi-use allocation will be addressed further in Amendment 32 
to the FMP.
    This interim rule would prohibit the recreational harvest of gag by 
setting the recreational bag limit for gag to zero. However, it is the 
intent of the Council to allow a 2011 recreational harvest of gag, 
likely in a limited gag fishing season, through management measures to 
be implemented through Amendment 32. Although gag landings may be 
reduced through more restrictive bag limits, proportional reductions in 
gag discards and associated discard mortality are not likely based on 
high levels of gag bycatch and bycatch mortality within other 
components of the Gulf reef fish fishery.
    At its August 2010 Council meeting, the Council indicated a 
preference for a summer recreational fishing season for gag based on 
projections from the 2009 gag stock assessment, and expressed its 
intent to implement such a recreational season in Amendment 32.
    The rationale for prohibiting gag recreational harvest is based on 
the high rate of gag regulatory discards. Most of the recreational 
effort occurs in the coastal and nearshore waters where juvenile gag 
typically reside. Although the average estimated recreational discard 
mortality rates are lower than the commercial discard mortality rates 
(32 percent for the recreational sector and 67 percent for the 
commercial sector), the total number of dead discards within the 
recreational sector may still be comparatively high given the high 
encounter rate in the recreational sector. Therefore, to meet the 
Council's intent to allow a recreational gag season later in 2011, it 
is important to reduce the number of recreational dead discards through 
this temporary rule to allow for the longest season length possible 
through Amendment 32.
    For the commercial sector, the encounter rate of regulatory 
discards is lower than that for the recreational sector because 
commercial fishing effort primarily occurs in offshore waters where 
adult gag typically reside. However, with a higher discard rate, the 
likelihood of a gag surviving after capture in the commercial sector is 
much lower because of the effects of barotrauma that occur during 
commercial harvest of gag in deeper waters.
    Therefore, the Council requested a minimal commercial gag quota to 
account for gag that are caught incidentally during the targeting of 
other reef fish species and allow those incidental gag to be counted 
against the commercial quota rather than be discarded dead.

Future Action

    NMFS has determined that this proposed rule is necessary to reduce 
overfishing of gag in the Gulf of Mexico. NMFS will consider all public 
comments received on this proposed rule in determining whether to 
proceed with a final rule and, if so, whether any revisions would be 
appropriate in the final rule. If NMFS issues a final rule, it would be 
effective for not more than

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180 days after publication, as authorized by section 305(c) of the 
Magnuson-Stevens Act. The final rule could be extended for an 
additional 186 days, provided that the public has had an opportunity to 
comment on the rule.
    NMFS acknowledges the need to continue monitoring all sources of 
gag mortality to determine the appropriate level of future actions 
necessary to ensure progress consistent with the stock rebuilding plan 
over the long term.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the regulatory amendment, 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.
    NMFS prepared an IRFA, as required by section 603 of the Regulatory 
Flexibility Act, for this proposed rule. The IRFA describes the 
economic impact that this proposed rule, if adopted, would have on 
small entities. A description of the action, why it is being 
considered, and the objectives of, and legal basis for this action are 
contained at the beginning of this section in the preamble and in the 
SUMMARY section of the preamble. A copy of the full analysis is 
available from the Council (see ADDRESSES). A summary of the IRFA 
follows.
    The Magnuson-Stevens Act provides the statutory basis for the 
proposed rule. The proposed temporary rule would reduce the commercial 
quota for gag, reduce the combined commercial SWG quota, prohibit 
recreational harvest of gag, and suspend red grouper multi-use 
allocation in the Gulf grouper and tilefish IFQ program. The purpose of 
this proposed temporary rule is to reduce overfishing of the gag 
resource in the Gulf.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified.
    This proposed temporary rule is expected to directly affect 
commercial harvesting and for-hire operations. The Small Business 
Administration (SBA) 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. For for-hire vessels, the 
other qualifiers apply and the receipts threshold is $7.0 million 
(NAICS code 713990, recreational industries).
    This proposed temporary rule is expected to directly affect 
commercial fishing vessels whose owners possess gag fishing quota 
shares and for-hire fishing vessels that harvest gag. As of October 1, 
2009, 970 entities owned a valid commercial Gulf reef fish permit and 
thus were eligible for initial shares and allocation in the grouper and 
tilefish IFQ program. Of these 970 entities, 908 entities initially 
received shares and allocation of grouper or tilefish, and 875 entities 
specifically received gag shares and an initial allocation of the 
commercial sector's gag quota in 2010. These 875 entities are expected 
to be directly affected by the proposed actions to reduce the 
commercial quota for gag and disallow the conversion of red grouper 
allocation to multi-use allocation.
    Of the 875 entities that initially received gag shares, 215 were 
not commercially fishing in 2008 or 2009 and thus had no commercial 
fishing revenue during these years. On average, these 215 entities 
received an initial allocation of 874 lb (397 kg) of gag in 2010. Eight 
of these 215 entities also received a bottom longline endorsement in 
2010. These 8 entities received a much higher initial allocation of gag 
in 2010, with an average of 3,139 lb (1,427 kg).
    The other 660 entities that initially received gag shares and 
allocations in 2010 were active in commercial fisheries in 2008 or 
2009. The maximum annual commercial fishing revenue in 2008 or 2009 by 
an individual vessel with commercial gag fishing quota shares was 
approximately $606,000 (2008 dollars).
    The average charterboat is estimated to earn approximately $88,000 
(2008 dollars) in annual revenue, while the average headboat is 
estimated to earn approximately $461,000 (2008 dollars). Based on these 
values, all commercial and for-hire fishing vessels expected to be 
directly affected by this proposed temporary rule are determined for 
the purpose of this analysis to be small business entities.
    Of the 660 commercial fishing vessels with commercial landings in 
2008 or 2009, 139 vessels did not have any gag landings in 2008 or 
2009. Their average annual gross revenue in these 2 years was 
approximately $50,800 (2008 dollars). The vast majority of these 
vessels' commercial fishing revenue is from a combination of snapper, 
mackerel, dolphin, and wahoo landings. On average, in 2010, these 
vessels received an initial allocation of 540 lb (245 kg) of gag quota.
    The remaining 521 commercially active fishing vessels did have 
landings of gag in 2008 or 2009. Their average annual gross revenue 
from commercial fishing was approximately $71,000 (2008 dollars) 
between the two years. On average, these vessels had 2,375 lb (1,080 
kg) and 1,300 lb (591 kg) of gag landings in 2008 and 2009 
respectively, or 1,835 lb (834 kg) between the 2 years. Gag landings 
accounted for approximately 8 percent of these vessels' annual average 
gross revenue, and thus they are somewhat though not significantly 
dependent on revenue from gag landings. These vessels' average initial 
gag allocation in 2010 was 2,121 lb (964 kg). Therefore, on average, 
their 2008 gag landings were very near their 2010 gag allocation, but 
their 2009 gag landings were considerably less than their 2010 
allocation.
    Of these 521 vessels, 52 vessels also received a bottom longline 
endorsement in 2010. These particular vessels' average annual revenue 
was approximately $156,000 (2008 dollars) in 2008 and 2009. Revenue 
from gag landings fell from approximately $15,900 to $8,400 in 2009 and 
thus they became relatively less dependent on gag landings. These 
vessels are highly dependent on revenue from red grouper landings, 
which accounted for 54 percent and 47 percent of their gross revenue in 
2008 and 2009 respectively. Revenue from deep-water grouper (DWG) 
landings decreased only slightly, from approximately $36,000 in 2008 to 
$31,000 in 2009, and thus these vessels became relatively more 
dependent on revenue from DWG landings. Their average initial 2010 
allocation of gag was approximately 5,507 lb (2,503 kg) while their 
average gag landings were 3,933 lb (1,788 kg) and 2,204 lb (1,002 kg) 
in 2008 and 2009 respectively. Thus, vessels that now have a bottom 
longline endorsement have been harvesting well within that allocation 
in recent years, particularly in 2009.
    The for-hire fleet is comprised of charter vessels, which charge a 
fee on a vessel basis, and headboats, which charge a fee on an 
individual angler (head) basis. The harvest of gag in the EEZ by for-
hire vessels requires a charter vessel/headboat permit for Gulf reef 
fish. On March 23, 2010, there were 1,376 valid or renewable for-hire 
Gulf reef fish permits. A valid permit is a non-expired permit. Expired 
reef fish for-hire permits may not be actively

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fished, but are renewable for up to 1 year after expiration. Because of 
the extended renewal period, numerous permits may be expired but 
renewable at any given time of the year during the renewal period after 
the permit's expiration. The majority (823, or approximately 60 
percent) of the 1,376 valid or renewable permits were registered with 
Florida addresses. The registration address for the Federal permit does 
not restrict operation to Federal waters off that State; however, 
vessels would be subject to any applicable State permitting 
requirements. Although the permit does not distinguish between 
headboats and charter vessels, it is estimated that 79 headboats 
operate in the Gulf. The majority of these vessels (43, or 
approximately 54 percent) operate from Florida ports. Given that nearly 
99 percent of target effort for gag and 97 percent of the economic 
impacts from the recreational sector for gag in the Gulf reef fish 
fishery are in west Florida, it is assumed that the 823 for-hire 
vessels (780 charter vessels and 43 headboats) in Florida are expected 
to be directly affected by the proposed action to reduce the 
recreational bag limit for gag to zero.
    The 215 entities with gag shares that did not participate in 
commercial fishing in 2008 or 2009 have no commercial fishing revenue 
and did not earn profit from commercial fishing in those 2 years. Under 
the proposed action to decrease the commercial quota for gag, their 
allocation of gag in 2011 would be reduced, on average, from 874 lb 
(397 kg) to 61 lb (28 kg), or by approximately 813 lb (370 kg). Using 
the 2008 average price of $3.52 per lb, this loss in allocation could 
potentially represent an annual loss of nearly $2,900 in gross revenue 
per entity. For the eight entities with gag shares that also possess 
longline endorsements, their average annual allocation of gag would be 
reduced from 3,139 lb (1,427 kg) to 220 lb (100 kg), or by 2,919 lb 
(1,327 kg). Thus, their potential loss in gross revenue, estimated to 
be nearly $10,280, could be much higher. However, in general, this 
potential loss in gross revenue could only reduce profit if these 
entities not only become active in commercial fishing, but specifically 
intend to harvest gag in 2011 and at a level above their reduced 
allocation. Alternatively, these potential losses in gross revenue 
could be due to these entities' inability to sell the allocations they 
are losing under the proposed action, though this possibility presumes 
that a demand for these allocations exists. Regardless, the 
significance of this potential loss in gross revenue to these 215 
entities cannot be evaluated given the lack of information on potential 
gross revenue and profit from commercial fishing in general and 
specifically for gag.
    Profit estimates are not currently available for the 139 entities 
with gag shares that participated in commercial fisheries other than 
gag. However, since these vessels did not have any gag landings, none 
of their gross revenue and thus none of their profit were the result of 
gag harvests. Under the proposed action to decrease the commercial 
quota for gag, their average allocation of gag in 2011 would be reduced 
from 540 lb (245 kg) to 38 lb (17 kg), or by approximately 502 lb (228 
kg). Using the 2008 average price of $3.52 per pound, this loss in 
allocation could potentially represent an annual loss of nearly $1,800 
in gross revenue per entity. However, this potential loss in gross 
revenue could only lead to a loss in profit if these entities intend to 
become active in the gag component of the Gulf reef fish fishery in 
2011 and at a level above their reduced allocation. Thus, for example, 
assuming these vessels intend to harvest gag in 2011 at a level 
equivalent to their 2010 allocation, and this harvest was in addition 
to, rather than in place of, their recent commercial fishing 
activities, the reduction in allocation could lead to a maximum loss of 
approximately three percent in gross revenue which could in turn reduce 
profit. Alternatively, these losses in gross revenue could be due to 
these entities' inability to sell the allocations they are losing under 
the proposed action, though this possibility presumes that a demand for 
these allocations exists.
    Profit estimates are not currently available for the 521 entities 
with gag shares that participated in the commercial gag sector of the 
Gulf reef fish fishery in 2008 or 2009. Under the proposed action to 
decrease the commercial gag quota, these vessels' gag allocations would 
be reduced from 2,121 lb (964 kg) to 148 lb (67 kg), or by 
approximately 1,973 lb (897 kg) on average. As these vessels have been 
harvesting at levels near their 2010 allocation in recent years on 
average, this reduction in gag allocation is likely to lead to a future 
reduction in gag landings and therefore gross revenue. Using the 
average 2008 price of $3.52 per pound, it is estimated that these 
vessels could lose nearly $6,950, or approximately 10 percent, in 
average annual gross revenue. A loss in gross revenue of this magnitude 
would likely lead to a reduction in profit.
    However, for the 52 vessels with gag shares that were active in the 
gag component of the Gulf reef fish fishery and also received a bottom 
longline endorsement in 2010, their allocation of gag in 2011 would 
decrease from 5,707 lb (2,594 kg) to 400 lb (182 kg), or by 
approximately 5,307 lb (2,412 kg) under the proposed action. This loss 
in landings is estimated to be valued at approximately $18,700 in gross 
revenue, or 12 percent of their average annual gross revenue. Such a 
loss in gross revenue would likely reduce their profit.
    Under the proposed action to suspend the conversion of red grouper 
allocation into multi-use allocation valid toward the harvest of red 
grouper or gag, minimal adverse economic effects are expected as a 
result of commercial fishing entities not being allowed to convert 4 
percent of their red grouper allocation into multi-use allocation. 
Multi-use allocation that has been converted from red grouper 
allocation can only be used to possess, land, or sell gag after an 
entity's gag and gag multi-use allocation has been landed, sold, or 
transferred. Given the proposed reduction in the commercial gag quota, 
it is likely these entities will exhaust their gag and gag multi-use 
allocations relatively early in 2011. Revenue from gag landings is 
greater than revenue from an equivalent amount of red grouper landings 
since gag commands a relatively higher market price. Thus, total 
commercial fishing revenue and, therefore, profit per vessel could be 
slightly less than if the multi-use conversion were allowed to 
continue.
    Net operating revenues (NOR) are assumed to be representative of 
profit for for-hire vessels. It is assumed that 823 for-hire vessels, 
780 charter vessels and 43 headboats, participate in the recreational 
gag component of the Gulf reef fish fishery. Estimates of NOR from 
recreational fisheries other than gag and thus across all fisheries in 
which these charter vessels and headboats participate are not currently 
available. However, on average, NOR for charter vessels from trips 
targeting gag are estimated to be approximately $1.34 million per year 
while NOR for headboats from trips targeting gag are estimated to be 
$81,000 per year. Thus, NOR for all trips targeting gag is estimated to 
be approximately $1.35 million per year. The average annual NOR from 
trips targeting gag is estimated to be $1,716 per charter vessel and 
$1,881 per headboat.
    When the length of the gag season is reduced by setting the 
recreational bag limit for gag at zero, some trips that formerly 
targeted gag will instead target

[[Page 63790]]

other species while other trips that formerly targeted gag will be 
cancelled. Assuming the NOR per trip is constant regardless of the 
species targeted, for-hire operators will only lose NOR from trips 
cancelled as a result of the shortened season length. Information 
regarding the number of trips cancelled as a result of the shortened 
season is not currently available. Thus, this analysis assumes that all 
of the current for-hire trips targeting gag will be cancelled. Because 
some of these trips would probably not be cancelled, this assumption is 
expected to overestimate the actual reduction in NOR associated with a 
shorter season. Thus, the following estimates of losses in NOR and 
profit for charter vessels and headboats should be considered maximum 
values.
    Under the proposed action to set the gag recreational bag limit for 
gag at zero, the losses in NOR from trips targeting gag for charter 
vessels and headboats are estimated to be approximately $750,000 and 
$43,000, respectively, if the proposed temporary rule is not extended 
for up to 186 days as allowed under the Magnuson-Stevens Act for 
interim measures. Thus, the losses in NOR from trips targeting gag are 
estimated to be $962 and $1,000 per charter vessel and headboat, 
respectively. These NOR losses represent a loss in profit from trips 
targeting gag of approximately 56 percent and 53 percent per charter 
vessel and headboat, respectively. However, if the proposed temporary 
rule is extended, the losses in NOR for charter vessels and headboats 
are estimated to be approximately $1.34 million and $81,000, 
respectively. Thus, the losses in NOR are estimated to be $1,716 and 
$1,881 per charter vessel and headboat, respectively. These losses in 
NOR represent a loss in profit from trips targeting gag of 100 percent 
per charter vessel and headboat, respectively. The proposed action is 
not expected to affect profit for charter vessels and headboats from 
trips not targeting gag. Vessel dependence on fishing for individual 
species cannot be determined with available data. Although some vessels 
are likely more dependent on trips that target gag than other vessels, 
overall, about three percent of for-hire anglers are estimated to 
target gag. As a result, while the proposed action would be expected to 
substantially affect the NOR derived from gag trips, overall, gag trips 
do not comprise a substantial portion of total for-hire trips nor would 
they, by extension, be expected to account for a substantial portion of 
total for-hire NOR.
    No additional economic effects would be expected to result from the 
revised SWG quota because the updated SWG quota simply reflects the 
proposed reduction in the commercial gag quota, the effects of which 
have already been discussed.
    Three alternatives, including the status quo, were considered for 
the action to reduce the commercial quota for gag from 1.49 million lb 
(0.68 million kg) to 100,000 lb (45,359 kg) in 2011. The first 
alternative, the status quo, would have maintained the commercial quota 
for gag at 1.49 million lb (0.68 million kg) in 2011. This alternative 
is not consistent with the goals and objectives of the Council's plan 
to manage gag to achieve the mandates of the Magnuson-Stevens Act. 
Specifically, selection of this alternative would be inconsistent with 
current National Standard 1 guidance because this quota would be above 
the ABC recommended by the Council's SSC of 1.17 million lb (0.53 
million kg) for 2011. In addition, this alternative would promote 
overfishing and slow recovery of the stock.
    The second alternative would have set the commercial quota for gag 
at 390,000 lb (0.18 million kg), with one option to release the entire 
quota on January 1, 2011 and a second option to release 50 percent of 
the quota on January 1, 2001 and the remaining 50 percent on July 1, 
2011. This quota is based on projected FOY yield streams, 
1.01 million lb (0.46 million kg) for 2011, and is consistent with the 
methods used by the Council in Amendment 30B for setting the annual 
catch target. This harvest level corresponds with the Council's initial 
request for an interim rule at its June 2010 meeting. The commercial 
quota for gag under this alternative is less than what the quota would 
be if based on the SSC's ABC recommendation (FRebuild yield 
stream) of 1.17 million lb (0.53 million kg). Based on the SSC's 
recommendation, selecting this alternative would have a less than 50 
percent chance of overfishing by the commercial sector and would 
provide a greater than 50 percent chance of rebuilding the stock if 
this yield stream is adhered to in future actions. However, recent 
discrepancies with the estimation of dead discards could affect how the 
assessment projects the status of the stock. If these discrepancies 
show a more pessimistic condition of the stock when the assessment is 
rerun, then selecting this alternative could result in harvest levels 
inconsistent with rebuilding the stock within the time frames outlined 
in the Magnuson-Stevens Act. Should these discrepancies result in a 
more optimistic condition of the stock, then the commercial quota for 
gag could be increased in subsequent actions.
    The third alternative is the most conservative and would set the 
commercial quota for gag equal to zero. Under this alternative, any 
addition to the quota would be initiated through Amendment 32 or some 
other rulemaking vehicle. Closure of the commercial sector to gag would 
benefit the stock by ending overfishing as well as halt gag fishing 
during the primary gag spawning season. However, this alternative would 
not allow gag allocation holders to land gag that might be caught 
incidentally when fishing for other species. Instead, these fish would 
have to be released. Because the commercial sector generally operates 
in relatively deep waters, a large proportion of these fish would 
likely die from barotrauma and handling. Release mortality has been 
estimated to be 67 percent on average for commercial discards. This 
high rate of discard mortality would contribute to overall mortality, 
thereby slowing recovery of the stock and thus is contrary to the 
Council's objectives.
    Two alternatives, including the status quo, were considered for the 
action to suspend the ability of allocation holders to convert red 
grouper allocation into multi-use allocation valid toward the harvest 
of red grouper or gag. The first alternative, the status quo, would 
continue to allow 4 percent of the red grouper allocation to be 
converted into multi-use allocation. This alternative is expected to 
result in gag harvests that would exceed specified annual catch limits, 
promote overfishing, and therefore slow recovery of the stock, contrary 
to the Council's objectives. Further, this alternative is also expected 
to result in greater adverse economic effects stemming from the 
corrective measures that would be implemented to address the over-
harvesting of gag.
    The second alternative would allow a smaller percentage (1.6 
percent) of red grouper allocation to be converted into multi-use 
allocation based on the buffer existing between the commercial annual 
catch limit (ACL) and quota for gag. This alternative is consistent 
with a gag commercial ACL of 1.76 million lb (0.8 million kg) and a 
1.49 million lb (0.68 million kg) commercial quota for gag. Since the 
proposed commercial quota for gag is only 100,000 lb (45,359 kg), the 
percentage of red grouper allocation that could be converted to multi-
use allocation is too high under this alternative as it is expected to 
result in gag harvests that would exceed specified ACLs, promote 
overfishing,

[[Page 63791]]

and therefore slow recovery of the stock, contrary to the Council's 
objectives.
    Two alternatives, including the status quo, were considered for the 
action to set the recreational bag limit at zero. The first 
alternative, the status quo, would maintain the recreational catch 
target at 2.20 million lb (1 million kg) as defined in Amendment 30B 
and thus maintain the current recreational bag limit of 2 gag within 
the 4-fish aggregate grouper bag limit. Selection of this alternative 
would be inconsistent with current National Standard 1 guidance because 
this level of harvest would be above the ABC recommended by the 
Council's SSC of 1.17 million lb (0.53 million kg) for 2011. In 
addition, this alternative would promote overfishing and slow recovery 
of the stock.
    The second alternative would set the gag bag limit to zero on the 
date when 620,000 lb (0.28 million kg) of gag is projected to be landed 
by the recreational sector in 2011. This harvest level is consistent 
with the fishing mortality rate associated with the OY used by the 
Council in Amendment 30B to set the recreational annual catch target. 
Under certain assumptions regarding the disposition of discards, this 
alternative is expected to result in a fishing season of 83 days. Given 
the closure of the shallow water grouper (SWG) recreational sector 
annually from February 1 to March 31, fishing would be allowed for the 
month of January and from April 1 to May 22. However, this fishing 
season is dependent on achieving the same percentage reduction in dead 
discards as obtained from the harvest. If these levels of reduction are 
not met, then harvesting this amount of fish could exceed the 
reductions needed for the stock to recover under the rebuilding plan 
being developed in Amendment 32 which, in turn, could require deeper 
cuts in future harvests than those projected by the current assessment 
update.
    Although by regulation, the actions in this proposed temporary rule 
do not need to end overfishing, they do need to reduce overfishing. 
This alternative could limit the types of long-term measures developed 
by the Council in Amendment 32 that could be applied to the 2011 
fishing year since the 620,000 lb (0.28 million kg) catch target would 
likely be achieved before rulemaking from Amendment 32 is implemented. 
Therefore, the harvest for the rest of the fishing year could be zero 
and any long-term measures developed in Amendment 32 would not apply 
until 2012.
    Further, recent discrepancies with the estimation of dead discards 
could affect how the assessment projects the status of the stock. If 
these discrepancies show a more pessimistic condition of the stock when 
the assessment is rerun, then selecting this alternative could result 
in harvest levels inconsistent with rebuilding the stock within the 
time frames outlined in the Magnuson-Stevens Act. This is particularly 
important for the recreational sector which harvests a greater 
proportion of the gag total catch than the commercial sector. 
Conversely, should these discrepancies result in a more optimistic 
condition of the stock, the recreational catch target and bag limit 
could be increased in subsequent actions.
    This proposed temporary rule does not establish any new reporting, 
record-keeping, or other compliance requirements.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

    Dated: October 12, 2010.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 622 is 
proposed to be amended as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

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

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


Sec.  622.20  [Amended]

    2. In Sec.  622.20, paragraph (b)(2)(iv)(A) is suspended.
    3. In Sec.  622.34, paragraph (v) is added to read as follows:


Sec.  622.34  Gulf EEZ seasonal and/or area closures.

* * * * *
    (v) Closure of the recreational sector for gag. The recreational 
sector for gag in the Gulf EEZ is closed. During the closure, all 
recreational harvest and possession of gag grouper in or from the Gulf 
EEZ is prohibited. Such fish caught in the Gulf EEZ must be released 
immediately with a minimum of harm.
    4. In Sec.  622.39, paragraph (b)(1)(ii) is suspended, and 
paragraph (b)(1)(viii) is added, to read as follows:


Sec.  622.39  Bag and possession limits.

* * * * *
    (b) * * *
    (1) * * *
    (viii) Groupers, combined, excluding goliath grouper, Nassau 
grouper, and gag--4 per person per day, but not to exceed 1 speckled 
hind or 1 warsaw grouper per vessel per day, or 2 red grouper per 
person per day. However, no grouper may be retained by the captain or 
crew of a vessel operating as a charter vessel or headboat. The bag 
limit for such captain and crew is zero.
* * * * *
    5. In Sec.  622.42, paragraphs (a)(1)(iii)(A)(3) and 
(a)(1)(iii)(B)(3) are suspended, and paragraphs (a)(1)(iii)(A)(4) and 
(a)(1)(iii)(B)(4) are added, to read as follows:


Sec.  622.42  Quotas.

    (a) * * *
    (1) * * *
    (iii) * * *
    (A) * * *
    (4) For fishing year 2011 and subsequent fishing years--4.83 
million lb (2.19 million kg).
    (B) * * *
    (4) For fishing year 2011 and subsequent fishing years--100,000 lb 
(45,359 kg).
* * * * *
[FR Doc. 2010-26198 Filed 10-15-10; 8:45 am]
BILLING CODE 3510-22-P