[Federal Register Volume 76, Number 106 (Thursday, June 2, 2011)]
[Rules and Regulations]
[Pages 31874-31881]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13703]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 110321211-1289-02]
RIN 0648-BA94


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: Final temporary rule.

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SUMMARY: This final temporary rule, issued pursuant to NMFS' authority 
to issue emergency and interim rules under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), replaces a 
temporary rule made effective January 1, 2011, and implements interim 
measures to reduce overfishing of gag in the Gulf of Mexico (Gulf). 
This rule reduces the commercial quota for gag and, thus, the combined 
commercial quota for shallow-water grouper species (SWG), establishes a 
2-month recreational season for gag, and suspends red grouper multi-use 
allocation in the Gulf grouper and tilefish individual fishing quota 
(IFQ) program, as recommended by the Gulf of Mexico Fishery Management 
Council (Council). The rule will be effective for 180 days, unless 
superseded by subsequent rulemaking, although NMFS may extend its 
effectiveness for an additional 186 days pursuant to the Magnuson-
Stevens Act. The intended effect of this final temporary rule is to 
reduce overfishing of the gag resource in the Gulf.

DATES: This rule is effective June 1, 2011, through November 29, 2011.

ADDRESSES: Electronic copies of documents supporting this final rule, 
which include an environmental assessment, a regulatory impact review, 
and a regulatory flexibility act analysis may be obtained from the 
Southeast Regional Office Web site at: http://sero.nmfs.noaa.gov/sf/GrouperSnapperandReefFish.htm.

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

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico 
is managed under the Fishery Management Plan for the Reef Fish 
Resources of the Gulf of Mexico (FMP). The FMP was prepared by the 
Council and is implemented through regulations at 50 CFR part 622 under 
the authority of the Magnuson-Stevens Act.
    On April 21, 2011, in response to a finding that the gag resource 
continues to be overfished and experiencing overfishing, NMFS published 
a proposed temporary rule that is finalized here, and requested public 
comment on that proposal (76 FR 22345).
    This final temporary rule reduces the commercial quota for gag from 
1.49 million lb (0.68 million kg) to 430,000 lb (195,045 kg), reduces 
the commercial SWG quota from 6.22 million lb (2.82 million kg) to 5.16 
million lb (2.34 million kg), suspends red grouper multi-use allocation 
in the Gulf grouper and tilefish IFQ program, and implements a 
recreational fishing season for gag from September 16 through November 
15, with a 2-fish daily bag limit. The purpose of this final temporary 
rule is to reduce overfishing of the gag resource in the Gulf. No 
changes from the proposed temporary rule were made to this final rule 
as a result of public comment.
    This action reduces the commercial quota for SWG species to 5.16 
million lb (2.34 million kg) from the 6.22 million lb (2.82 million kg) 
SWG quota which was implemented through a regulatory amendment to the 
FMP on January 1, 2011 (75 FR 74656, December 1, 2011). Because a gag 
interim rule that reduced the SWG quota even further became effective 
that same day on January 1, 2011 (75 FR 74650, December 1, 2011), NMFS 
delayed effectiveness of the 6.22 million lb (2.82 million kg) quota 
until further notification in the Federal Register. This temporary 
final rule further delays the effectiveness of the 6.22 million lb 
(2.82 million kg) SWG quota and implements a reduced SWG quota of 5.16 
million lb (2.34 million kg). After termination or expiration of this 
interim final rule, the timing of which is uncertain, NMFS will 
announce the effective date of the 6.22 million lb (2.82 million kg) 
SWG quota, unless this rule is superseded by subsequent rulemaking.

Comments and Responses

    The following is a summary of the comments NMFS received on the 
proposed rule and NMFS' respective responses. During the comment 
period, NMFS received 24 comments on the proposed rule. Three comments 
from non-governmental organizations supported the management measures 
contained in the proposed temporary rule. The remaining comments came 
primarily from the recreational sector of the Gulf reef fish fishery, 
as well as one state agency and one commercial fisherman. Those 
comments opposed one or more of the management measures contained in 
the proposed temporary rule, and are addressed below.
    Comment 1: A number of commenters questioned the scientific basis 
used to assess the gag stock and how scientific information was applied 
to support fishery management decisions. They indicated the data NMFS 
used were outdated or flawed, or in some cases data were ignored.
    Response: Stock assessments are conducted under the scientifically 
peer reviewed Southeast Data, Assessment,

[[Page 31875]]

and Review (SEDAR) process, which was initiated in 2002 to improve the 
quality and reliability of fishery stock assessments in the South 
Atlantic, Gulf of Mexico, and U.S. Caribbean. SEDAR seeks improvements 
in the scientific quality of stock assessments and supporting 
information available to address existing and emerging fishery 
management issues. This process emphasizes constituent and stakeholder 
participation in assessment development, transparency in the assessment 
process, and a rigorous and independent scientific review of completed 
stock assessments. SEDAR is organized around 3 workshops: data, 
assessment, and expert review. The data workshop documents, analyzes, 
and reviews datasets to be used for assessment analyses. The assessment 
workshop develops and refines quantitative population analyses and 
estimates population parameters. The final workshop is conducted by a 
panel of independent experts who review the data and the assessment and 
recommend the most appropriate values of critical population and 
management quantities. The 2006 gag assessment and 2009 update 
assessment were conducted using the SEDAR process, including 2010 
assessment reanalyses to better account for discarded fish. All of 
these assessments were used in determining the management measures 
contained in this temporary rule. All workshops and Council-initiated 
meetings reviewing the assessment were open to the public and included 
constituent participation on the various SEDAR panels to ensure the 
transparency of the data and how it was applied in the assessments. In 
addition, the Council's Scientific and Statistical Committee (SSC) 
reviewed assessment results and made recommendations to the Council 
about the adequacy of the assessments and at what level to set the 
acceptable biological catch. The Council took all of this information 
into consideration when recommending the management measures contained 
in this temporary rule. The finding of the SSC and Council are 
therefore the result of rigorous application of scientific principles.
    Comment 2: Several individuals questioned that red tide could be 
responsible for the 2005 mortality event modeled in the gag update 
assessment.
    Response: Red tide is believed to have contributed to the 2005 
episodic mortality event. In the 2009 update assessment, 10 models were 
run that varied different parameters within the assessment. The model 
with the best fit was one which took into account decreases in indices 
of abundance thought to have occurred because of the red tide event 
documented in 2005. Although this model cannot show a direct link 
between the red tide event and the decrease in gag abundance, it does 
indicate a variable was present in 2005 that depressed the stock size. 
The assessment panel felt that the 2005 red tide event was the factor 
that best explained this depressed stock.
    Comment 3: Several commenters indicated gag are plentiful and, 
therefore, further management measures beyond those in place in 2010 
are unnecessary. Other commenters indicated that although the gag 
population does seem depressed, the proposed management measures seem 
overly restrictive. Several commenters suggested alternative management 
measures including different seasonal closures, reduced bag limits, or 
increased size limits.
    Response: The 2006 assessment and 2009 update assessment for gag 
used a variety of data including those from fishery dependent and 
fishery independent sources. Several models were used including models 
that took into account a 2005 episodic mortality event. These models 
consistently indicated the gag stock was depressed. The model 
recommended by the Council's SSC was the one that took into account the 
2005 episodic mortality event, and that best explained the current 
estimated gag numbers. This model indicated the stock was overfished 
and undergoing overfishing, prompting NMFS to inform the Council of 
this condition and that, pursuant to the Magnuson-Stevens Act, the 
stock needs to be rebuilt. There was some question about the model 
results because of how discards were estimated in the model. A SEDAR 
panel was convened to address these questions and reanalyzed the 2009 
update assessment. The reanalysis of the assessment did not 
substantially alter the assessment outcome, that the stock was 
overfished and undergoing overfishing.
    In evaluating different management measures, the Council examined 
alternative seasonal closures, area closures, bag limits, and size 
limits. Because of the magnitude of discards by the recreational 
sector, only the seasonal closure alternatives would meet the required 
reductions. Bag limit changes would not substantially change season 
lengths. Reducing size limits would substantially shorten the season 
length, and increasing size limits would substantially increase the 
number of dead discards. Public testimony given at Council meetings 
either favored a summer or winter season, depending on where people 
fished. In general, fishermen from Texas and southwest and central 
Florida favored a winter season, and fishermen from other areas of the 
Gulf favored a summer season. In seeking a compromise, the Council 
recommended a fall season because it starts at the very end of the 
summer and comes very close to the winter months. A fall season 
maximizes the number of days gag would be open for fishing.
    Comment 4: One commenter indicated regionalized gag management 
should be considered to allow a greater proportion of the gag harvest 
to occur in areas where gag are more abundant.
    Response: Considering regionalized management is outside the scope 
of this rulemaking because such an approach would not directly reduce 
overfishing, as required by the Magnuson-Stevens Act. However, the 
Council continues to examine regionalized management for reef fish 
species. In the course of developing long-term management measures in 
Amendment 32 to the FMP, the Council is considering seasonal-area 
closures for grouper species which are considered to be a type of 
regionalized management.
    Comment 5: Several commenters indicated the management actions 
contained in this temporary rule favor the commercial sector over the 
recreational sector. These commenters suggest that the commercial 
sector should either be closed, not be allowed to use longline gear, or 
only harvest gag when the recreational sector is open.
    Response: When the allocation of gag harvest was developed for the 
recreational and commercial sectors in Amendment 30B to the FMP, it was 
based on average landings for each sector between 1986 and 2005. The 
resultant recreational and commercial allocation ratio is 61:39, 
respectively. The management measures contained in this temporary rule 
were designed to equally reduce the number of gag removals (harvest and 
dead discards) for each sector to maintain this allocation ratio. Thus, 
while the recreational regulations may seem more restrictive, they 
actually allow for a much greater recreational harvest than will be 
allowed for the commercial sector. It is beyond the scope of this 
temporary rule to change the allocation ratio. It is also beyond the 
scope of this temporary rule to ban longline gear; however, recently 
implemented management measures contained in Amendment 31 to the FMP 
have reduced the number of longline vessels and further limited where 
longline vessels can fish.
    The commercial sector is managed under an IFQ program where 
individual fishermen are given an allocation of gag

[[Page 31876]]

based on the commercial quota and the number of IFQ shares owned by the 
fisherman. This individual allocation allows commercial fishermen more 
flexibility in how they can fish, including fishing year round as long 
as they still have allocation remaining. If the commercial sector was 
not allowed to keep gag when the recreational sector was closed, dead 
discards would increase. Because the commercial sector fishes in waters 
deeper than where most of the recreational sector fishes, the 
likelihood of catching undersized fish is less and the chance a 
discarded fish would die if released is very high. Therefore, by 
allowing the commercial sector to keep gag year-round as long as an 
individual fisherman still has allocation, gag could be counted towards 
the quota and not wasted.
    Comment 6: Several commenters indicated fishing effort is down due 
to current economic conditions, including increased fuel prices.
    Response: In developing fishing regulations to limit harvest, 
recent fishing effort levels are taken into account. Recent data would 
reflect trends in effort due to factors such as changes in the economy. 
For example, as described in the environmental assessment, effort in 
2009 was below the 2005-2008 average, in part due to changing economic 
conditions. In addition, in recommending the management measures 
contained in this temporary rule, the Council heard testimony from 
constituents who described current conditions in the fishery, including 
the effects of the economic situation, and how they perceived the rule 
would affect them.
    Comment 7: One commenter questioned why the proposed rule would 
remove Sec.  622.34 paragraph (v) from the regulations and replace it 
with Sec.  622.34 paragraph (w).
    Response: Section 622.34, paragraph (v), was implemented through a 
2010 temporary rule and prohibits the harvest and possession of gag in 
the Gulf exclusive economic zone (EEZ). The 2010 temporary measure 
expires on May 31, 2011, unless subsequent rulemaking supersedes this 
measure. Because the timing of implementation of this new temporary 
rule was uncertain at the proposed rule stage, the rule proposed to 
remove paragraph (v) and add paragraph (w) to Sec.  622.34. However, 
because this new temporary rule will become effective on June 1, 2011, 
after the current temporary rule expires, NMFS can now add new 
paragraph (v) instead of paragraph (w) to Sec.  622.34. The new 
paragraph (v) implements a recreational gag seasonal closure in the 
Gulf EEZ by setting the gag bag limit to zero from January 1 through 
September 15, and from November 16 through December 31. This would 
allow a recreational gag harvest from September 16 through November 15 
under a 2-fish bag limit. This paragraph would also be temporary and 
would remain in effect for 180 days from the rule's publication date, 
and could be extended for up to an additional 186 days.
    Comment 8: One commenter suggested one of the purposes of this 
proposed rule is to force catch shares on the recreational sector. 
Another commenter stated his opposition to IFQs in general.
    Response: The development of catch shares and IFQ programs as 
management tools is completely unrelated to this rule. The purpose of 
this rule is to reduce overfishing of gag, as required by the Magnuson-
Stevens Act. Catch shares, or changes to the IFQ program, if 
considered, would be examined through the deliberative Council system 
and evaluated through a plan amendment to the FMP.
    Comment 9: Several commenters expressed concern over the magnitude 
of the economic effects on the recreational sector and associated 
shore-side businesses expected to occur as a result of the proposed 
temporary rule, and one comment stated that the economic assessment 
grossly and inadequately understated the economic effects of the 
recreational component of the proposed action.
    Response: The magnitude of the expected economic effects on all 
affected entities provided in the assessment is consistent with the 
comments that expressed concern over the magnitude of the economic 
effects. Substantial gag harvest reductions are necessary, however, to 
reduce overfishing of the gag resource, and the actions selected are 
expected to result in the best social and economic outcome.
    The comment that claimed the economic assessment grossly and 
inadequately understated the economic effects claimed that the proposed 
action would result in the loss of 5,000 jobs and $3 billion in 
economic activity per year in Florida. This comment also implied that 
the analysis for the proposed action determined that the total economic 
value of both gag and red grouper to the recreational fishing industry 
is only $118 million when the total economic value of saltwater fishing 
in west Florida is $23 billion.
    The estimates of the expected losses in jobs and economic activity 
provided by this comment were unsubstantiated by either source or 
methodology, and the ``$118 million'' estimate of economic value, or a 
reasonable proxy, cannot be found in the analysis provided for the 
proposed temporary rule or associated environmental assessment. 
Therefore, the origin of any of these numbers is unknown.
    The assessment of the expected economic effects of the recreational 
component of the proposed temporary rule included estimates of the 
expected changes in economic value, as measured by changes in consumer 
surplus (CS) to recreational anglers and net operating revenues (NOR) 
to for-hire businesses, and economic impact, also known as economic 
activity or business activity. Economic activity estimates provide a 
measure of how expenditures re-circulate through a geographic region 
and stimulate business sales in multiple production industries, wages 
and salaries, and jobs.
    Both of the measures of economic value (CS and NOR), are net sums, 
meaning they equal the remaining portion of benefits to anglers and 
revenues to for-hire vessels after expenditures have been deducted. As 
described in the assessment, the expected change in economic value is 
the appropriate measure for the calculation of the costs and benefits 
to the nation of a proposed management change.
    Estimates of changes in economic activity, though not an 
appropriate measure of economic value, were provided because they may 
be useful in characterizing potential community and shoreside effects 
of proposed management actions. Unlike economic value, however, 
measures of economic activity are not net sums. For example, in the 
case of business sales, total gross expenditures for an initial 
purchase of goods or services, as well as any expenditures that were 
necessary to produce those goods or services and that occurred within 
the same geographic area, are included in the measure of business 
activity. It should be clearly understood, therefore, that economic 
value and economic activity are not equivalent and it is incorrect to 
equate the two. This comment confuses the two measures and errs in 
characterizing the ``$23 billion'' as ``economic value'' when it should 
correctly have been labeled ``economic activity.'' As a result, 
comparisons of this total with others that may represent economic 
value, in the case of the ``$118 million'' figure, or that are measures 
of economic value, in the case of CS and NOR, are inappropriate and 
misleading.
    Beyond the issue of comparing disjointed concepts, the primary 
issue associated with this comment is the difference in magnitude of 
the estimated effects of the proposed action when

[[Page 31877]]

dealing with the common metric ``economic activity.'' Although details 
of the methodology utilized to produce the estimates provided in this 
comment were not given, the primary difference between the estimated 
effects provided in the assessment and those provided in this comment 
is likely the assumption of the number of trips that would be expected 
to be affected. Calculating this number is a key factor in the effects 
analysis.
    Based on the documented model employed in NMFS' assessment, one 
full-time equivalent (FTE) job was estimated to be lost for every 1,800 
angler trips cancelled in response to the proposed action. As described 
in the assessment, approximately 315,000 individual angler fishing 
trips could be cancelled due to this rule. These cancellations would 
result in the loss of 176 FTE jobs throughout the Gulf region, with 174 
of these jobs occurring in Florida. These estimates do not include the 
effects of trip cancellations in the headboat sector because business 
activity estimates for this sector are not available. However, this 
estimate of potentially cancelled trips is considered an upper bound 
for cancellation in the shore, private, and charter sectors because it 
assumes all trips that normally would be expected to target gag during 
the affected period would be cancelled. In reality, many of these trips 
would be expected to continue and target alternative species or be 
shifted to the open season. As a result, the over-estimation of the 
number of affected trips in these other recreational sectors is 
expected to be sufficient to compensate for the absence of information 
on the headboat sector. Applying the same ratio of affected trips to 
jobs to the jobs estimate provided in this comment (5,000 jobs lost in 
Florida) results in an estimate of approximately 9 million cancelled 
fishing trips. Available data do not support this estimate. The average 
number of trips that target gag each year throughout the Gulf of Mexico 
is estimated to be less than 600,000 trips, while the average number of 
trips that catch gag is estimated to be less than 1.2 million. The 
total number of trips for all species in west Florida averages less 
than 17 million trips per year. As a result, there is no foundation to 
expect that more than 50 percent of all fishing trips in west Florida 
would be cancelled as a result of an approximate 10-month prohibition 
on the recreational harvest of gag.

Non-Substantive Change From the Proposed Rule

    This final rule contains a change in the codified text from the 
proposed rule. In the proposed rule, Sec.  622.34 would be amended by 
removing and reserving paragraph (v), and adding paragraph (w). 
However, because this final rule will become effective on June 1, 2011, 
after the current interim rule that added paragraph (v) expires, NMFS 
no longer needs to add paragraph (w), and can add paragraph (v) back 
into the codified text instead.

Classification

    The NMFS Assistant Administrator (AA) has determined that this 
temporary rule is necessary for the conservation and management of the 
Gulf gag resource. The AA has also determined that this final temporary 
rule is consistent with the national standards of the Magnuson-Stevens 
Act and other applicable laws. The rule may be extended for a period of 
not more than 186 days, as described in section 305(c)(3)(B) of the 
Magnuson-Stevens Act.
    This final temporary rule has been determined to be not significant 
for purposes of Executive Order 12866.
    NMFS prepared a final regulatory flexibility analysis (FRFA) for 
this rule. The FRFA incorporates the initial regulatory flexibility 
analysis (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. A copy of the full IRFA 
is available from NMFS (see ADDRESSES). The FRFA follows.
    The Magnuson-Stevens Act provides the statutory basis for this 
final temporary rule. No duplicative, overlapping, or conflicting 
Federal rules have been identified. This final temporary rule does not 
establish any new reporting, record-keeping, or other compliance 
requirements.
    A statement of the need for and objectives of this final temporary 
rule is provided in the supplementary information section of this 
preamble and is not repeated here.
    A summary of the comments received on the proposed temporary rule 
is provided in the previous section of this preamble. Although NMFS 
received no comments to the IRFA, some of the comments noted concerns 
about the effects this rule would have on small businesses. For 
example, several commenters expressed concern over the magnitude of the 
economic effects on the recreational sector and associated shore-side 
businesses expected to occur as a result of this temporary rule. One 
commenter claimed the economic assessment in the proposed temporary 
rule grossly and inadequately understated the economic effects that 
would result from the proposed temporary rule and provided alternative 
estimates of these effects.
    NMFS responded to these comments in detail in the response to 
comments section of the preamble to this rule. Moreover, in the IRFA, 
NMFS analyzed the expected economic effects of the proposed action to 
the recreational sector components of anglers, for-hire businesses, and 
associated shore-side businesses. The effects of this temporary rule on 
anglers and shore-side businesses are not germane to the Regulatory 
Flexibility Act (RFA) analysis because anglers are not small entities 
within the context of the RFA (see discussion below) and shore-side 
entities would only be indirectly affected by the proposed action and 
the RFA does not require NMFS to examine indirect effects. NMFS agrees 
with the commenters that this rule will result in some economic effects 
on small (and large) entities. However, as discussed in greater detail 
below, there are no alternatives that would end overfishing of gag, as 
is required by the Magnuson-Stevens Act.
    With respect to the criticism that NMFS understates the economic 
effects of this rule, as discussed in the previous section of this 
preamble, these alternative estimates are undocumented and unsupported 
by available data. NMFS' earlier response to this criticism is 
sufficient and is not repeated here.
    This temporary final 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 temporary final rule is expected to directly affect commercial 
fishing vessels whose owners possess gag 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 were eligible for 
initial shares and allocation in the

[[Page 31878]]

grouper and tilefish IFQ program. Of these 970 entities, 908 received 
shares and allocation of grouper or tilefish, including 875 that 
received gag shares and an initial allocation of the commercial gag 
quota in 2010. These 875 entities are expected to be directly affected 
by this temporary final rule.
    Of the 875 entities that initially received gag shares, 215 did not 
record commercial landings or revenues in 2008 or 2009. 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 eight entities received a much 
higher initial allocation of gag in 2010 than all 215 entities, 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 quota shares was approximately 
$606,000 (2008 dollars).
    The average charter vessel 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 the average revenue values provided above, all commercial 
and for-hire fishing vessels expected to be directly affected by this 
temporary final 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. The average annual gross revenue by these vessels in 2008 and 
2009 was approximately $50,800 (2008 dollars). The vast majority of 
these vessels' commercial fishing revenue came from snapper, mackerel, 
dolphin, and wahoo landings. On average, these vessels received an 
initial allocation of 540 lb (245 kg) of gag quota in 2010.
    The remaining 521 commercially active fishing vessels that 
initially received gag shares recorded landings of gag in 2008 or 2009. 
Over that 2-year period, these vessels averaged approximately $71,000 
(2008 dollars) in annual gross revenue from commercial fishing. 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, these vessels 
were somewhat, though not significantly, dependent on revenue from gag 
landings. The average initial gag allocation in 2010 for these 521 
vessels was 2,121 lb (964 kg). Therefore, on average, the 2008 gag 
landings for these vessels 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. The average annual revenue for these 52 vessels 
was approximately $156,000 (2008 dollars) in 2008 and 2009. Revenue 
from gag landings for these vessels decreased from approximately 
$15,900 in 2008 to approximately $8,400 in 2009 and, thus, these 
vessels became relatively less dependent on gag landings in 2009. These 
vessels, however, were 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 by these vessels decreased only slightly, from 
approximately $36,000 in 2008 to approximately $31,000 in 2009 and, 
thus, these vessels became relatively more dependent on revenue from 
DWG landings. The average initial 2010 allocation of gag for these 
vessels 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 have a bottom longline 
endorsement have been harvesting well below their 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 fished, but are 
renewable for up to 1 year after expiration. Because of the extended 
permit renewal period, numerous permits may be expired but still 
renewable at any given time of the year. 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, NMFS estimates that 79 headboats 
operate in the Gulf. The majority of these vessels (43, or 
approximately 54 percent) operate from Florida ports. Because nearly 99 
percent of gag target effort and 97 percent of the economic impacts 
from recreational gag fishing in the Gulf occur in west Florida, NMFS 
assumed that the 823 for-hire vessels (780 charter vessels and 43 
headboats) with permit registration addresses in Florida will be 
directly affected by this action.
    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 any profit from commercial fishing in those 2 years. 
The reduction in this rule of the commercial gag quota from 1.49 
million lb (0.68 million kg) to 430,000 lb (195,045 kg) will reduce 
these vessels' average allocation of gag in 2011 from 952 lb (433 kg) 
to 275 lb (125 kg), or by approximately 677 lb (308 kg). Using the 
average 2008 gag price of $3.52 per pound, this loss in allocation 
could potentially represent a loss of nearly $2,400 (2008 dollars) in 
gross revenue per entity. Using the 2010 average price of $1.00 per 
pound of gag allocation, this loss in allocation could potentially 
represent a loss of $670 (2008 dollars) in net revenue per entity. For 
the eight entities within this group that also possess longline 
endorsements, their average allocation of gag in 2011 will be reduced 
from 3,418 lb (1,554 kg) to 987 lb (449 kg), or by 2,431 lb (1,105 kg). 
Thus, the potential loss in gross revenue and net revenue to these 
eight entities is estimated to be approximately $8,600 and $2,500 (2008 
dollars), respectively.
    However, in general, these potential losses in gross revenue and 
net revenue will only be realized if these 215 entities not only become 
active in commercial fishing, but also intend to harvest gag in 2011 at 
a level above their reduced allocation. That is, because they have not 
used their quota (and thus gained revenue to lose) in recent years, a 
reduction in allocation can only lead to a reduction in landings and, 
thus, gross revenue, if these entities intend to harvest at levels 
above their reduced allocation. Alternatively, these losses in gross 
and net revenue could accrue to a loss of ability by these entities to 
sell the allocations they will lose under the temporary action, though 
this possibility presumes that a demand for these allocations will 
exist. Regardless, the significance of these potential losses in gross 
and net revenue to these 215 entities cannot be evaluated because of

[[Page 31879]]

the lack of information on potential gross revenue, net revenue, and 
profits from commercial fishing in general and specifically for gag.
    Similarly, the 139 entities with gag shares that participated in 
commercial fisheries other than gag earned approximately $50,800 in 
annual gross revenue on average in 2008 and 2009. Profit estimates for 
these vessels are not currently available. However, because these 
entities did not have any gag landings in 2008 or 2009, none of their 
gross revenue or profit was the result of gag harvests. Under the 
temporary rule, the average allocation of gag in 2011 for these 
entities will be reduced from 588 lb (267 kg) to 170 lb (77 kg), or by 
418 lb (190 kg). Using the average 2008 price of $3.52 per pound, this 
loss in allocation could potentially represent a loss of nearly $1,500 
(2008 dollars) in gross revenue per entity. Using the 2010 average 
price of $1.00 per pound of gag allocation, this loss in allocation 
could potentially represent a loss of approximately $410 (2008 dollars) 
in net revenue per entity.
    However, these potential losses in gross and net revenue will only 
lead to a loss in profits if these 139 entities intend to commercially 
harvest gag in 2011 at a level above their reduced allocation. That is, 
a reduction in allocation can only lead to a reduction in landings if 
these entities intend to harvest at levels above their reduced 
allocation. For example, if these vessels intended to harvest gag in 
2011 at a level equivalent to their 2011 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 3 percent in gross revenue, which could in turn 
reduce net revenue and profits. Alternatively, losses in gross and net 
revenue could be due to a potential inability to sell the allocations 
lost under the temporary final rule, though this possibility presumes 
that a demand for these allocations will exist.
    The 521 entities with gag shares that commercially harvested gag in 
2008 or 2009 earned an average gross revenue of approximately $71,000 
(2008 dollars) per year. Profit estimates for these vessels are not 
currently available. However, gag landings accounted for approximately 
8 percent of these vessels' average annual gross revenue. As a result, 
these vessels are somewhat, but not significantly, dependent on revenue 
from gag landings. Under the temporary final rule, the gag allocations 
for these vessels will be reduced from 2,310 lb (1,050 kg) to 667 lb 
(303 kg), or 1,643 lb (747 kg) on average. Because 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 an 
equivalent 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 $5,800 (2008 dollars), or approximately 
8 percent, in annual gross revenue, on average. Using the 2010 average 
price of $1.00 per pound of gag allocation, these vessels could lose 
approximately $1,600 (2008 dollars) in net revenue, which is assumed to 
be representative of profit for commercial vessels, per entity under 
this temporary final rule.
    However, 52 of these 521 vessels also received a bottom longline 
endorsement in 2010. The average annual gross revenue for these 52 
vessels was approximately $156,000 (2008 dollars) in 2008 and 2009, 
with gag landings accounting for approximately 8 percent of gross 
revenue. These vessels are more dependent on revenue from red grouper 
than from gag. Under this action, the allocation of gag in 2011 for 
these vessels will decrease from 6,215 lb (2,825 kg) to 1,953 lb (888 
kg), or by 4,262 lb (1,937 kg). Because these vessels have been 
harvesting gag at levels near their 2010 allocation on average in 
recent years, the reduction in gag allocation is expected to lead to an 
equivalent reduction in gag landings and gross revenue. Using the 
average 2008 price of $3.52 per pound, it is estimated that these 
vessels would lose approximately $15,000 (2008 dollars) in annual gross 
revenue, or nearly 10 percent, on average. Using the 2010 average price 
of $1.00 per pound of gag allocation, these vessels would lose 
approximately $4,200 (2008 dollars) in net revenue, which is assumed to 
be representative of profit, per entity.
    No additional economic effects are expected to result from the 
revised SWG quota because this quota simply reflects the reduction in 
the commercial gag quota, the effects of which have already been 
discussed.
    Minimal adverse economic effects are expected to result from the 
action to suspend the conversion of red grouper allocation into multi-
use allocation valid toward the harvest of red grouper or gag. 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. As a 
result of the reduction in the commercial gag quota that will occur 
under this temporary final rule, it is expected that vessels will 
exhaust their gag and gag multi-use allocations relatively quickly. Gag 
commands a higher market price. As a result, gross revenue from 
commercial fishing revenue and profit per vessel could be reduced as a 
result of the suspension of multi-use conversion.
    NOR is assumed to be representative of profit for for-hire vessels. 
As previously discussed, it is assumed that 823 for-hire vessels, of 
which 780 are estimated to be charter vessels and 43 headboats, 
participate in the gag component of the recreational sector of the Gulf 
reef fish fishery. Estimates of NOR from recreational fishing for all 
species by these charter vessels and headboats are not available. 
However, on average, the NOR per year for vessels from trips targeting 
gag is estimated to be approximately $1.56 million for all charter 
vessels (approximately $2,000 per vessel) and approximately $91,300 for 
all headboats (approximately $2,100 per vessel), or approximately $1.65 
million per year for all for-hire vessels.
    During the periods when the recreational harvest of gag is 
prohibited, some trips that normally would be expected to target gag 
are expected to target other species, while other trips are expected to 
be cancelled. Estimates of NOR per trip by species targeted, however, 
are unavailable. Assuming the NOR per trip is constant regardless of 
the species targeted, for-hire operators will only lose NOR from 
cancelled trips and not trips directed towards alternative species. 
Estimates of the actual number of trips that would be expected to be 
cancelled as a result of the shortened gag season are not available. 
The following analysis assumes all for-hire trips that would normally 
be expected to target gag will be cancelled when the recreational 
sector is closed. Because not all of these trips are likely be 
cancelled, this analysis overestimates the actual reduction in NOR 
associated with a shorter season that is expected to occur and the 
following estimates of losses in NOR and profit for charter vessels and 
headboats should be considered maximum values.
    The establishment of a recreational gag fishing season of September 
16, 2011-November 15, 2011, is expected to result in a maximum 
reduction of NOR of approximately $435,000 and $28,000 from trips 
targeting gag on charter vessels and headboats, respectively, or 
approximately $463,000 across both fleets. These reductions translate 
into per-vessel averages of approximately $560 and $660 for charter 
vessels and headboats, respectively, or approximately 28 percent and 31 
percent of profits. If this temporary final

[[Page 31880]]

rule is extended an additional 186 days, as allowed under the Magnuson-
Stevens Act for interim or emergency measures, the reductions in NOR 
for charter vessels and headboats are estimated to be, in total over 
the entire period (366 days), approximately $1.41 million and $81,800, 
respectively, or $1,808 and $1,902 per charter vessel and headboat.
    This temporary rule is not expected to affect the profit from 
charter vessel or headboat trips that do not target gag. For-hire 
vessel dependence on fishing for individual species cannot be 
determined with available data. Although some for-hire vessels are 
likely more dependent on trips that target gag than other for-hire 
vessels, overall, only approximately 3 percent of for-hire anglers are 
estimated to target gag. As a result, while shortening the gag season 
action is 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 are these trips, by extension, expected to 
account for a substantial portion of total fleet-wide for-hire NOR.
    Two alternatives, including the status quo, were considered to 
setting the gag commercial quota at 430,000 lb (195,045 kg). The first 
alternative, the status quo, would have maintained the gag commercial 
quota at 1.49 million lb (0.68 million kg). 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 the commercial quota would 
be above the commercial annual catch target (ACT) of 500,000 lb 
(226,796 kg), which is based on the Council's defined FOY 
(fishing mortality at the optimum yield) yield of 1.28 million lb (0.58 
million kg) for 2011. In addition, this alternative would promote 
overfishing and slow recovery of the stock.
    The second alternative would have set the gag commercial quota at 
100,000 lb (45,539 kg). This alternative is based on the request made 
by the Council in August 2010 for the interim rule that published 
December 1, 2010, and reflects the uncertainty in the stock status at 
that time due to questions regarding how commercial and recreational 
discards were treated in the assessment update. When this commercial 
quota was recommended, it was unknown how revisions to the treatment of 
discards might influence the reanalysis of the updated stock 
assessment. If the reanalysis yielded a more pessimistic condition of 
the stock, then setting the harvest based on the FOY yield, 
estimated then at 390,000 lb (177,273 kg), would not reduce overfishing 
sufficiently to allow the stock to begin to recover within the maximum 
time frame allowed under the Magnuson-Stevens Act. The 100,000 lb 
(45.539 kg) commercial quota was recommended because some gag are 
expected to be incidentally caught by the commercial sector while 
fishing for other species. Further, most discarded gag die after being 
released due to the high discard mortality rate associated with fishing 
at deeper depths. Rather than waste all of these fish, the Council set 
the quota at a level that would allow some fish to be retained and be 
counted towards the commercial quota.
    As of March 2, 2011, over 65 percent of the gag IFQ shareholders 
had less than 50 lb (23 kg) in allocation still available to them. 
Thus, if the commercial quota were not set at a level above 100,000 lb 
(45,539 kg), gag would likely be lost through dead discards rather than 
kept and counted towards the commercial quota as fishermen run out of 
allocation. However, the reanalysis of the assessment showed a slight 
increase in the projected yields under the FOY if Florida 
adopted compatible regulations for the recreational sector. Because 
Florida adopted compatible regulations for the recreational sector, a 
higher commercial quota is allowable.
    One alternative, the status quo, was considered to suspending 
vessels' ability to convert red grouper allocation into multi-use 
allocation valid toward the harvest of red grouper or gag. This 
alternative would have continued to allow 4 percent of the red grouper 
allocation to be converted into multi-use allocation, and would be 
expected to result in gag harvests exceeding the annual catch limit, 
promote overfishing, and slow recovery of the stock, contrary to the 
Council's objectives. Further, this alternative would also be expected 
to result in greater adverse economic effects stemming from the 
corrective measures that would be implemented to address the over-
harvesting of gag.
    Three alternatives, including the status quo, were considered to 
establishing a recreational fishing season for gag of September 16, 
2011, through November 15, 2011. The first alternative, the status quo, 
would maintain the recreational ACT at 2.20 million lb (1 million kg), 
and anglers would be able to harvest the 2-fish daily bag limit for gag 
starting June 1, 2011. Depending on whether 2006-08 or 2009 is used as 
the baseline, the estimated reduction in removals under this 
alternative would be between 15 percent and 20 percent, which is 
insufficient to allow the stock to rebuild, and would be inconsistent 
with the stock rebuilding plan being developed by the Council. In 
addition, this alternative is inconsistent with the Magnuson-Stevens 
Act and current National Standard 1 guidance because the expected level 
of harvest would be above the recreational ACT of 780,000 lb (353,802 
kg), which is based on the Council's defined FOY yield of 
1.28 million lb (0.58 million kg) for 2011. Further, this alternative 
would promote overfishing and slow recovery of the stock.
    The second alternative would set the gag bag limit to zero and, 
thereby, prohibit the recreational harvest of gag. This alternative 
would reduce fishing mortality the most out of all the alternatives 
considered and, therefore, generate the greatest biological benefits 
for the gag stock. Although this alternative would not allow the 
recreational harvest of gag while the interim rule is in effect, the 
number of dead discards would also be expected to be reduced because no 
recreational fishing trips would be expected to target gag. Because 
Florida adopted compatible regulations, this alternative would reduce 
the harvest sufficiently in 2011 to be consistent with the Council's 
rebuilding plan in Amendment 30B to the FMP, as it would reduce 
removals between 58 percent and 67 percent and, as such, end 
overfishing. If Florida had not adopted compatible regulations, the 
estimated reduction in removals would be between 43 percent and 61 
percent, which would reduce, but might not be sufficient to end, 
overfishing. Because no recreational harvest of gag would be allowed, 
this alternative would be expected to result in greater economic losses 
to the for-hire sector than this temporary rule. However, when the 
Council requested the current temporary rule, it intended to allow some 
recreational harvest of gag in 2011 and establish that level of harvest 
under the long-term management measures being developed in Amendment 32 
to the FMP. This alternative would not accomplish that goal, and so was 
not selected.
    The third alternative would establish a recreational fishing season 
for gag of July 1, 2011, through August 15, 2011, and, thus, would 
allow for some recreational harvest of gag in 2011 as the Council 
intended when it requested the current interim rule. This alternative 
would establish a 46-day recreational fishing season, which is less 
than the 61-day season under this temporary rule. This alternative also 
minimally overlaps with the red snapper season, which begins on June 1. 
This alternative

[[Page 31881]]

would provide for-hire vessels with a greater number of options when 
marketing summer trips. The reduction in removals under this 
alternative would be expected to be between 49 percent and 60 percent 
and, therefore, might be sufficient to end overfishing.
    The Council heard public testimony regarding potential recreational 
seasons for gag at its February 2011 meeting. Participants in the 
recreational sector asked for either a summer or winter season 
depending on their geographic location. In general, recreational 
participants from Texas, southwest Florida, and central Florida favored 
a winter season, while recreational participants from other areas of 
the Gulf favored a summer season. In looking for a compromise, the 
Council recommended the proposed recreational season with no changes to 
the bag limit or size limit. The proposed recreational season would 
cover the end of the summer recreational fishing season and run through 
the beginning of the winter recreational fishing season. In addition, 
the estimated reductions in removals under the proposed recreational 
season are between 50 percent and 54 percent, which might be sufficient 
to end overfishing.
    Pursuant to 5 U.S.C. 553(d)(3), NMFS finds that delaying this 
rule's effective date for 30 days is impracticable and contrary to the 
public interest, and therefore there is good cause to waive the 30-day 
delay in effectiveness of this rule.
    A delay is impracticable, because it would contribute to 
overfishing of gag, which is contrary to National Standard 1 of the 
Magnuson-Stevens Act, which requires NMFS to conserve and manage ocean 
resources to prevent overfishing while achieving the optimum yield from 
each fishery. Without this rule, on June 1, 2011 the current gag 
temporary rule will expire, which would allow the commercial sector to 
harvest gag using red grouper multi-use allocation and the recreational 
sector to harvest gag in Federal waters. These harvests could result in 
further overfishing of gag, contrary to NMFS' statutory obligations. By 
implementing this rule immediately, red grouper multi-use allocation 
will be suspended and the recreational sector for gag will be closed to 
gag harvest until the 2-month gag season, which opens on September 16 
and closes on November 15, 2011.
    In addition, delaying the effectiveness of this rule for 30-days is 
contrary to the public interest. This rule replaces the current fishing 
season for gag with a 2-month recreational fishing season for gag in 
the fall. Recreational fishing businesses need to be able to plan for 
this season, and any delay in implementing this rule will delay their 
ability to plan for this new season, and risk economically injuring 
these entities. Moreover, many Gulf reef fish fishermen have already 
exhausted their gag allocation for the year, and this temporary rule 
will allow them to catch more gag. Without the increased allocation of 
gag, gag bycatch in the commercial sector would increase, leading in 
turn to a higher gag mortality rate, and a further reduction of the gag 
resource, which would be contrary to the public's interest.
    Accordingly, the 30-day delay in effectiveness of the measures 
contained in this temporary rule is waived.

List of Subjects in 50 CFR Part 622

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

    Dated: May 27, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 622 is amended 
as follows:

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

0
1. The authority citation for part 622 continues to read as follows:

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


Sec.  622.20  [Amended]

0
2. In Sec.  622.20, paragraph (b)(2)(iv)(A) is suspended.

0
3. In Sec.  622.34, paragraph (v) is added to read as follows:


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

* * * * *
    (v) Seasonal closure of the recreational sector for gag. The 
recreational sector for gag, in or from the Gulf EEZ, is closed from 
January 1 through September 15 and November 16 through December 31 each 
year. During the closure, the bag and possession limit for gag in or 
from the Gulf EEZ is zero.

0
4. 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--5.16 
million lb (2.34 million kg).
    (B) * * *
    (4) For fishing year 2011 and subsequent fishing years--430,000 lb 
(195,045 kg).
* * * * *
[FR Doc. 2011-13703 Filed 5-27-11; 4:15 pm]
BILLING CODE 3510-22-P