[Federal Register Volume 88, Number 85 (Wednesday, May 3, 2023)]
[Rules and Regulations]
[Pages 27701-27709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09336]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 230427-0115]
RIN 0648-BL89


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Resources of the Gulf of Mexico; Temporary Measures To Reduce 
Overfishing of Gag

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 implements interim measures to 
reduce overfishing of gag in Federal waters of the Gulf of Mexico 
(Gulf). This final temporary rule reduces the 2023 commercial and 
recreational sector harvest levels for gag and changes the 2023 
recreational fishing season for gag in Federal waters of the Gulf. This 
temporary rule is effective for 180 days, but NMFS may extend the 
interim measures for a maximum of an additional 186 days. The purpose 
of this temporary rule is to reduce overfishing of gag while the long-
term management measures are developed.

DATES: This final temporary rule is effective from May 3, 2023, until 
October 30, 2023.

ADDRESSES: An electronic copy of the environmental assessment (EA) 
supporting these interim measures may be obtained from the Southeast 
Regional Office website at https://www.fisheries.noaa.gov/action/interim-action-reduce-overfishing-gag-gulf-mexico. The EA includes a 
regulatory impact review and a Regulatory Flexibility Act (RFA) 
analysis.

FOR FURTHER INFORMATION CONTACT: Dan Luers, NMFS Southeast Regional 
Office, telephone: 727-824-5305, or email: [email protected].

SUPPLEMENTARY INFORMATION: The reef fish fishery in the Gulf is managed 
under the Fishery Management Plan for the Reef Fish Resources of the 
Gulf of Mexico (FMP) and includes gag and 30 other managed reef fish 
species. The FMP was prepared by the Gulf of Mexico Fishery Management 
Council (Council) and is implemented by NMFS through regulations at 50 
CFR part 622 under authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act).
    On February 3, 2023, NMFS published a proposed temporary rule in 
the Federal Register and requested public comment (88 FR 7388). The 
proposed temporary rule and EA outline the rationale for the actions 
contained in this final temporary rule, and the EA is available from 
NMFS (see ADDRESSES

[[Page 27702]]

section). A summary of the management measures described in the EA and 
implemented by this temporary rule is provided below.
    All weights described in this temporary rule are in gutted weight.
    Gulf gag is harvested by the commercial and recreational sectors, 
with 39 percent of the total annual catch limit (ACL) allocated to the 
commercial sector and 61 percent allocated to the recreational sector. 
The gag stock was assessed in 2021 through the Southeast Data, 
Assessment, and Review (SEDAR) stock assessment process (SEDAR 72), and 
was determined to be overfished and undergoing overfishing. SEDAR 72 
incorporated several modified data inputs from the previous gag stock 
assessment, including recreational catch and effort data generated by 
the Marine Recreational Information Program (MRIP) using the Fishing 
Effort Survey (FES; MRIP-FES). The MRIP-FES fully replaced the MRIP 
Coastal Household Telephone Survey (CHTS) in 2018. MRIP-FES generally 
estimates higher recreational effort, and thus higher recreational 
landings, than MRIP-CHTS. The recreational catch limits in this 
temporary rule are not directly comparable to the previous recreational 
catch limits because of the change from MRIP-CHTS to MRIP-FES to 
estimate recreational landings.
    SEDAR 72 also accounted for observations of red tide mortality, 
since gag is vulnerable to red tide events and was negatively affected 
by these disturbances in 2005, 2014, 2018, and projected for 2021 
directly within the stock assessment model. Lastly, modeling changes 
were made in SEDAR 72 to better quantify commercial discards by taking 
into account the potential misidentification between black grouper and 
gag, which are similar looking species, and to improve size estimates 
of gag retained by commercial and for-hire fishermen, and private 
anglers.
    In November 2021, the Council's Scientific and Statistical 
Committee (SSC) reviewed SEDAR 72 and found it to be the best 
scientific information available for informing fisheries management. On 
January 26, 2022, NMFS notified the Council that gag was overfished and 
undergoing overfishing, and that measures to rebuild the stock and end 
overfishing must be implemented within 2 years, i.e., by January 26, 
2024. In response, the Council began work on Amendment 56 to the FMP. 
However, because the management measures in Amendment 56 are not 
expected to be effective until the 2024 fishing year, the Council 
requested that NMFS implement interim measures to reduce overfishing of 
gag during the 2023 fishing year. Specifically, the Council requested 
that NMFS implement reduced catch levels for gag using the current 
sector allocations of the total ACL, and that NMFS move the start of 
the gag recreational fishing season.

Management Measures Contained in This Final Temporary Rule

    During the effectiveness of this temporary rule, the total ACL for 
gag is 661,901 lb (300,233 kg). This temporary rule also specifies the 
commercial and recreational sector ACLs and component commercial quotas 
using the existing sector allocations of the total ACL of 39 percent 
commercial and 61 percent recreational. The commercial ACL and 
commercial quota are 258,000 lb (117,027 kg) and 199,000 lb (90,265 
kg), respectively. The recreational ACL is 403,759 lb (183,142 kg), and 
the recreational annual catch target (ACT) is 362,374 lb (164,370 kg).
    The reduced catch limits requested by the Council are based on a 
rebuilding time that is equal to twice the time necessary to rebuild 
the stock if fishing mortality was reduced to zero, which is one of the 
rebuilding times considered in Amendment 56.
    Although the Council requested a commercial ACL of 258,142 lb 
(117,091 kg) and commercial quota of 199,157 lb (90,336 kg) for 2023, 
the analyses conducted by NMFS supporting the implementation of interim 
measures use a commercial ACL and quota rounded to the nearest thousand 
pounds, as noted above. NMFS used the rounded numbers because they are 
consistent with the numerical format of the current gag commercial 
catch limits and the Council did not consider whether this practice 
should be continued for the purpose of the interim commercial catch 
limits. NMFS expects the Council to clearly articulate in Amendment 56 
whether the commercial catch limits for gag should continue to be 
rounded to the nearest thousand pounds.
    Because the commercial sector relies on the Individual Fishing 
Quota program for groupers and tilefishes (GT-IFQ program) that 
distributes commercial quota to shareholders for the entire fishing 
year, no change to the commercial fishing season would occur under this 
temporary rule. Further, the Council did not recommend interim 
modifications to the commercial sector's IFQ multi-use provision for 
gag and red grouper. Therefore, the gag and red grouper multi-use 
allocation will be available as specified in 50 CFR 622.22(a)(5).
    In addition to the reduced gag catch limits, the Council requested 
that NMFS move the start of the gag recreational fishing season for the 
2023 fishing year from June 1 to September 1. The Council also 
requested the season close on November 10, instead of remaining open 
through December 31, as it has in recent years. Therefore, the 2023 
recreational fishing season will be open from September 1 through 
November 9, unless NMFS projects that the recreational ACL will be 
reached sooner and closes the recreational sector as required by the 
accountability measures (AM) specified in 50 CFR 622.41(r)(2).
    The reduced recreational catch limits in this temporary rule will 
result in a shorter recreational season. However, the Council and NMFS 
expect that the change to the recreational season will mitigate the 
lower catch limits and will maximize the number of recreational fishing 
days for gag. If the opening date for the recreational season had 
remained June 1, 2023, NMFS projected that recreational landings of gag 
would reach the recreational ACL in only 16 days.
    NMFS would implement the current AM of an in-season closure earlier 
if NMFS projects that recreational landings will meet or exceed the 
recreational ACL before the November 10 closure date.
    The temporary reductions in the allowable harvest of gag will 
result in reduced allowable harvest for both the commercial and 
recreational sectors and a reduced recreational fishing season. The 
reduced harvest levels and shortened recreational fishing season will 
likely result in short-term adverse socio-economic effects. However, 
the temporary ACLs, commercial quota, and recreational ACT are expected 
to minimize future adverse socio-economic effects by potentially 
decreasing further reductions in the allowable harvest levels required 
to end overfishing of gag through Amendment 56. The temporary harvest 
levels in this rule will also provide biological benefits to the gag 
stock by reducing the past levels of fishing mortality.

Comments and Responses

    NMFS received 24 comments during the public comment period on the 
proposed temporary rule. Most of the comments NMFS received were 
opposed to the interim measures for gag. NMFS acknowledges the comments 
in favor of the action in the proposed rule and agrees with them. Some 
comments were outside the scope of the proposed temporary rule, 
suggesting NMFS implement alternative management measures or apply 
restrictions to a specific fishery sector or component,

[[Page 27703]]

and those comments are not responded to in this final temporary rule. 
Comments that were opposed to or requested additional information about 
the actions contained in the proposed temporary rule are grouped as 
appropriate and summarized below, along with NMFS' responses.
    Comment 1: The catch level reductions for gag are unnecessary 
because either the stock assessment is inaccurate or there is no 
shortage of gag in certain areas of the Gulf.
    Response: NMFS disagrees that the reduction in the gag catch limits 
are unnecessary. The best scientific information available supports 
both the stock assessment results and the decision to reduce the catch 
limits through this temporary rule. The most recent stock assessment 
for Gulf gag (SEDAR 72) was completed in 2021 and determined that the 
stock is undergoing overfishing and is overfished. The assessment 
included a multi-day data review workshop and several webinars, and was 
reviewed by the Council's SSC, which concluded that SEDAR 72 was based 
on the best scientific information available. Although NMFS recognizes 
that the abundance of gag varies across locations in the Gulf, gag is 
managed as a single stock in the Gulf, and the stock assessment, which 
used Gulf-wide data, concluded that the overall abundance has declined 
precipitously since the previous gag stock assessment was completed in 
2016. This conclusion is supported by the inability of both the 
commercial and recreation sectors to harvest their allotted quotas of 
gag. In the last 5 years covered by SEDAR 72 (2015-2019), the combined 
commercial and recreational harvest only exceeded 50 percent of the gag 
stock ACL once (2016).
    Comment 2: The recreational season for gag should be open from 
October through December because that is when gag move closer to shore.
    Response: The Council recommended a recreational season opening on 
September 1 because public comments from stakeholders supported the 
longest season possible. The season starting September 1 is scheduled 
for a maximum of 70 days, closing on November 10, while the alternative 
start dates considered for the recreational season resulted in shorter 
season estimates. NMFS estimated that a June 1 start date would last 
only 16 days; an October 1 start date is estimated to last 55 days; and 
a November 1 start date is estimated to last 29 days. Thus, even if an 
October 1 start date for the recreational season was implemented, NMFS 
projected the season would only last until late November. In addition, 
shorter seasons are more likely to result in ``derby-like'' fishing, 
where greater effort and greater numbers of fish are harvested in a 
shorter period, and fishermen may decide go out in more dangerous 
conditions.
    Comment 3: NMFS should reduce the recreational bag limit from two 
fish to one fish instead of reducing the season length. Alternatively, 
NMFS should reduce bag limit to one fish and reduce the recreational 
season length.
    Response: The Council did not consider an action to change the 
existing bag limit for gag, nor recommend that NMFS reduce the gag two-
fish bag limit through this temporary rule. Additional analysis is 
necessary to determine the combined impacts of reducing the bag limit 
and shortening the open season. The Council has indicated that it may 
explore a bag limit reduction in the future, which would provide the 
opportunity to complete this additional analysis and evaluate whether a 
reduction in bag limit combined with the change to the open season 
would achieve the desired reduction in harvest.
    Comment 4: Although the commercial quota and recreational ACT are 
decreased by 79 percent, the recreational season length in number of 
days is only reduced by 61 percent. The percentage reduction in 
recreational fishing days should be the same as the reduction in the 
recreational ACT.
    Response: This temporary rule shortens the recreational season for 
gag from 214 days (June 1 through December 31) to 70 days (September 1 
through November 9), which is approximately a 67 percent reduction. In 
addition, consistent with the current accountability measures, this 
temporary rule limits recreational harvest to the recreational ACL also 
set in this rule, not the recreational ACT. The recreational ACL will 
be reduced from 1,903,000 lb (863,186 kg) to 403,759 lb (183,142 kg). 
However, as explained above, these catch limits are not directly 
comparable because of the change from MRIP-CHTS to MRIP-FES to estimate 
recreational landings. Further, NMFS would not expect the reduction in 
the ACL to directly correspond to the reduction in the season length 
because recreational fishing effort and catch rates for gag change 
during a fishing year, so the time of year when fishing occurs is 
important in projecting how quickly the catch limit will be reached. 
This temporary rule will change the start date for the gag recreational 
season from June 1 to September 1. Because the recreational harvest of 
gag in total pounds is historically much lower in September and October 
than in June, NMFS projects that it will take longer to catch the 
decreased ACL than it would if the season were to open on June 1.
    Comment 5: The proposed recreational season of September 1 through 
November 9 is problematic for three reasons. First, the catch rates of 
gag in June, July, and August are low and a recreational closure during 
this time will not have a significant reduction on recreational 
harvest. Second, gag are commonly caught while targeting red snapper 
and a closure for gag from June through August, when red snapper 
harvest is generally at its peak, will most likely cause a significant 
number of gag discards in deep water. Therefore, the gag season should 
be open concurrent with the red snapper season to reduce bycatch of gag 
during that time, and then close the gag season late in the year, such 
as, an open season from June 1 through September 30. Separating the 
fishing seasons for gag and red snapper seems more likely to maximize 
bycatch, not minimize it to the extent practicable as required by 
National Standard 9. Last, the recreational season of September 1 
through November 9 will heavily favor commercial fishermen instead of 
recreational fishermen due to the less favorable weather conditions at 
that time of year.
    Response: NMFS has determined that the change in the recreational 
open season implemented through this temporary rule will reduce gag 
bycatch and bycatch mortality, to the maximum extent practicable, 
consistent with the requirements of National Standard 9. The Council 
considered multiple factors in recommending the preferred alternative 
for the start date of the gag recreational season, including the season 
length projections, economic concerns, especially associated with the 
for-hire sector, and the potential changes in bycatch. The Council 
determined that it is important to provide recreational fishermen and 
for-hire businesses the longest season possible to harvest the 
recreational ACL. A season starting September 1 (the longest projected 
season length of the alternatives considered) is scheduled to be open 
for 70 days, while a season beginning June 1 (the shortest projected 
season) is projected to last 16 days. Although gag catch rates, i.e., 
catch per unit effort, may be lower during June through August, 
concurrent with most of the Gulf States recreational seasons for red 
snapper and with the Federal red snapper for-hire season, than in some 
months later in the year (e.g., November), the total pounds of gag 
harvested during this season is higher

[[Page 27704]]

than any other time in the year due to the higher number of anglers 
that harvest gag. This is because of the larger number of recreational 
fishermen targeting reef fish, and also likely due to relatively 
favorable fishing weather and the open red snapper season. In addition, 
a June 1 start date would have the greatest adverse economic effects on 
the for-hire component because during the limited 16-day season 
fishermen on for-hire vessels would have to take single trips to 
harvest both red snapper and gag, instead of having a different season 
to schedule trips for the two species. Thus, a June 1 season is 
expected to result in a decreased number of trips and decreased revenue 
for the for-hire component.
    With respect to bycatch, opening the recreational season on June 1 
would require recreational fishermen to discard all gag caught after 
the short 16-day season concludes. Although the September 1 opening may 
result in discards during the few weeks that the season would have been 
open in early June, it is also expected to eliminate targeted harvest 
of gag from June 1 through August 31. Many experienced fishermen have 
explained during public meetings that gag can be avoided when targeting 
other species, including red snapper. Thus, although there are 
uncertainties with regard to the extent of bycatch given each of the 
season opening dates, NMFS expects the September 1 season opening to 
reduce gag mortality during the peak of the red snapper recreational 
season, reduce overall gag mortality, and also provide economic and 
social benefits to the recreational sector.
    NMFS does not believe the recreational season in this temporary 
rule will favor commercial fishermen over recreational fishermen. 
Because there are separate commercial and recreational catch limits, 
harvest by the commercial sector will not impact the recreational 
season. This longer recreational season will provide the greatest 
flexibility to recreational fishermen to avoid periods of poor weather 
and harvest gag, compared to the other shorter seasons that the Council 
considered. Further, in at least some areas, gag move closer to shore 
in the fall as the water cools, which may allow for safer access by 
anglers when compared to areas farther offshore where gag occur in the 
summer. The cooler, shallower water may also reduce release mortality 
for those gag that are caught but cannot be kept.
    Comment 6: The initial regulatory flexibility analysis (IRFA) for 
the proposed temporary rule is faulty because it does not account for 
effects on commercial crew members.
    Response: Analyses conducted to satisfy the requirements of the RFA 
only consider the effects of a rule on entities subject to the 
regulation (i.e., entities to which the rule will directly apply) 
rather than entities indirectly affected by the regulation. Because the 
commercial quota for gag is allocated to businesses that possess shares 
for gag in the GT-IFQ program, crew members on commercial fishing 
vessels who do not also possess such shares would be indirectly rather 
than directly affected by the temporary rule. Therefore, consideration 
of effects on individual crew members is outside the scope of the IRFA 
analysis.
    Comment 7: The temporary rule will adversely affect consumers who 
purchase gag by raising prices or they will not be able to purchase the 
fish.
    Response: NMFS agrees that the reduction in the commercial quota 
proposed by this temporary rule would be expected to temporarily 
increase the ex-vessel price of gag, which would likely be passed on to 
consumers and result in a decrease in consumer surplus, i.e., economic 
value to consumers. Specifically, Table 4.1.3.2 in the environmental 
assessment indicates that the ex-vessel price of gag is expected to 
increase by $1.44 per lb, which in turn is expected to reduce consumer 
surplus by $497,585, over the maximum effective period of the temporary 
rule, 366 days. These economic losses for consumers cannot be avoided 
because NMFS has determined that the commercial quota reduction in this 
temporary rule is necessary to reduce overfishing of gag while a 
rebuilding plan is being developed.
    Comment 8: The gag commercial quota reduction will cause extreme 
hardship to commercial fishermen and their families, their communities, 
and the seafood supply chain, and could have been avoided or at least 
mitigated had the Council and NMFS acted sooner. The reduction in the 
recreational catch limits will cause for-hire vessels to go out of 
businesses or greatly affect their ability to make a living, and may 
cause effort to shift to other species.
    Response: NMFS recognizes that the temporary rule may cause 
economic hardships for commercial and recreational for-hire 
stakeholders and communities reliant on gag. However, not reducing 
harvest would be expected to result in further declines to the gag 
population and greater economic hardships in the longer term. Regarding 
the timeliness of this action, the Council and NMFS use the SEDAR 
process to assess the abundance and health of populations of several 
managed stocks. The gag stock has been assessed frequently since 2006, 
with some assessments indicating the population was overfished and 
overfishing was occurring, and other assessments indicating the 
population was healthy. Prior to SEDAR 72, the next most recent stock 
assessment (SEDAR 33 Update, 2016) indicated the gag population was 
healthy. Thus, the Council and NMFS did not have sufficient information 
to support reducing catch levels prior to the Council receiving the 
results of SEDAR 72 at its September 2021 meeting. Stock assessments 
take several years to complete, so the data from the stock assessment 
may be several years old before a final rule can be implemented, and 
thus a population status may change before the Council and NMFS receive 
the results.
    Comment 9: The temporary rule is unlikely to achieve its purpose 
due to unconstrained and inaccurate estimates of recreational discards. 
The temporary rule does not adequately track or account for dead 
discards of gag by the recreational sector. It is unclear if NMFS' 
analysis takes into account the potential for increased directed 
fishing for gag during the new open fishing season, which could 
increase catch rates beyond what was historically observed during that 
period of time and thus fail to control overall fishing mortality. The 
analysis concludes that overall gag mortality is expected to decrease, 
but the basis for that conclusion is not explained. It does not appear 
that the temporary rule or the accompanying analysis quantifies the 
numbers of gag expected to be caught and discarded dead as bycatch by 
recreational anglers during the closed or open seasons, or the 
potential for increased directed fishing pressure during the proposed 
70-day fishing season. Without those figures, the public has no way to 
assess the actual impact on ``overall gag mortality.''
    Response: The purpose of this temporary rule is to reduce 
overfishing of gag during the 2023 fishing year while the Council and 
NMFS work to implement permanent measures to end overfishing and 
rebuild the stock. As explained in the response to Comment 5, NMFS 
recognizes that shifting the recreational season may change fishing 
pressure during the fall months and the magnitude of gag discards 
during the red snapper season. However, NMFS does not agree that it is 
necessary to quantify expected discards to conclude that the reduction 
in the commercial and recreational catch limits will

[[Page 27705]]

achieve the purpose of reducing overfishing during this interim period. 
As explained in the environmental assessment supporting this rule, the 
average total gag commercial and recreational landings between 2017 and 
2021 was over 3 million lb (1,360,777 kg). This temporary rule is 
expected to constrain total harvest in 2023 to 661,901 lb (300,233 kg) 
and, therefore, regardless of any uncertainty related discard 
mortality, reduce overfishing compared to the status quo catch limits 
and recent landings. Further, the Council considered uncertainty in the 
catch rates when recommending the September 1 to November 10 
recreational season. This 70-day season is more conservative than NMFS' 
current estimate for the season length based on previous years of 
fishing effort during September through December, which suggests that 
it would take 80 to 96 days to harvest the revised gag recreational 
ACL. The shorter 70-day season accounts for changes in effort that may 
occur due to the new season timeframe, and provide a buffer in case 
recreational landings are higher than estimated. Also, NMFS will use 
all available data, including final 2022 recreational data, which are 
not yet available, to determine whether the season should be reduced 
further. If the data indicate a recreational closure for gag is 
necessary to avoid exceeding its recreational ACL prior to November 10, 
NMFS will close the season.
    Comment 10: The voluntary data collection from private recreational 
anglers that occurs through MRIP-FES is delayed by months after 
landings occur and before they are available for use by management. 
NMFS does not explain how it will obtain sufficient information from 
the recreational sector about what is caught during the proposed open 
season in time to actually shorten that season.
    Response: NMFS will use the best data available to project the 
duration of the recreational season. The recreational season 
implemented by this final temporary rule will be a maximum of 70 days 
and is based on a conservative estimate that is expected to result in 
landings less than the new recreational ACL for gag. NMFS will continue 
to run projections that include newly available recreational landings, 
such as the final 2022 recreational landings of gag, which are not 
included in the current projection. If the updated projections indicate 
that recreational landings will reach the recreational ACL before 
November 10, NMFS will shorten the season.

Future Action

    NMFS has determined that this temporary rule is necessary to reduce 
overfishing of gag. NMFS considered all public comments received within 
the scope of the proposed temporary rule in the determination of 
whether to proceed with a final temporary rule and whether any 
revisions to the final temporary rule were appropriate. This final 
temporary rule is effective for 180 days after the date of publication 
in the Federal Register, as authorized by section 305(c) of the 
Magnuson-Stevens Act. The temporary rule could be extended for up to an 
additional 186 days if NMFS publishes a temporary rule extension in the 
Federal Register, because the public has had an opportunity to comment 
on the proposed temporary rule, and the Council is actively preparing 
an FMP amendment to address overfishing on a permanent basis.

Classification

    This action is issued pursuant to section 305(c) of the Magnuson-
Stevens Act, 16 U.S.C. 1855(c). The NMFS Assistant Administrator has 
determined that this temporary rule is consistent with the Magnuson-
Stevens Act and other applicable law.
    This temporary rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Magnuson-Stevens Act provides the legal basis for this 
temporary rule. No duplicative, overlapping, or conflicting Federal 
rules have been identified. In addition, no new reporting and record-
keeping requirements are introduced by this temporary rule. This 
temporary rule contains no information collection requirements under 
the Paperwork Reduction Act of 1995.
    NMFS prepared a final regulatory flexibility analysis (FRFA) for 
this temporary rule. The FRFA incorporates the IRFA, a summary of the 
significant issues raised by the public comments in response to the 
IRFA, NMFS' responses to those comments, and a summary of the analyses 
completed to support the action. NMFS' responses to public comments 
regarding the IRFA and the Executive Order 12866 analysis are in the 
SUPPLEMENTARY INFORMATION section of the preamble under the Comments 
and Responses heading. A copy of the full analysis is available from 
NMFS (see ADDRESSES). A summary of the FRFA follows.
    The objective of this temporary rule is to use the best scientific 
information available to reduce overfishing of gag while a rebuilding 
plan is developed, consistent with the authority under the Magnuson-
Stevens Act. All monetary estimates in the following analysis are in 
2019 dollars.
    This temporary rule will revise the stock ACL, sector ACLs, 
commercial quota, and recreational ACT for gag based on the ``TMin*2'' 
rebuilding scenario, which is twice the minimum time for the stock to 
rebuild with zero fishing mortality and is an alternative under 
consideration in Amendment 56. This temporary rule retains the existing 
sector allocations of the stock ACL of 39 percent to the commercial 
sector and 61 percent to the recreational sector, but will reduce the 
stock ACL, commercial ACL, recreational ACL, commercial quota and 
recreational ACT to 661,901 lb (300,233 kg), 258,000 lb (117,027 kg), 
403,759 lb (183,142 kg), 199,000 lb (90,265 kg), and 362,374 lb 
(164,370 kg), respectively. The recreational portion of the revised 
stock ACL, the recreational ACL, and the recreational ACT are based on 
MRIP-FES data. This temporary rule will also change the recreational 
season start date from June 1 to September 1, and close the season on 
November 10 unless NMFS projects the recreational ACL to be met sooner. 
As a result, this temporary rule is expected to regulate commercial 
fishing businesses that possess shares of gag in the GT-IFQ program and 
for-hire fishing businesses that target gag.
    The gag commercial quota is allocated annually based on the 
percentage of gag shares in each IFQ account. For example, if an 
account possesses 1 percent of the gag shares and the commercial quota 
is 1 million lb (0.45 million kg), then that account would receive 
10,000 lb (4,536 kg) of commercial gag quota. Although it is common for 
a single IFQ account with gag shares to be held by a single business, 
some businesses have multiple IFQ accounts with gag shares. As of July 
8, 2021, 506 IFQ accounts held gag shares. These accounts and gag 
shares were owned by 455 businesses. Thus, NMFS assumes this temporary 
rule would regulate 455 commercial fishing businesses.
    A valid charter vessel/headboat permit for Gulf reef fish is 
required to legally harvest gag on a recreational for-hire fishing 
trip. NMFS does not possess complete ownership data regarding 
businesses that hold a charter vessel/headboat permit for Gulf reef 
fish, and thus potentially harvest gag. Therefore, it is not currently 
feasible to accurately determine affiliations between vessels and the 
businesses that own them. As a result, for purposes of this analysis, 
NMFS assumes each for-hire vessel is independently owned by a single 
business, which NMFS expects to result in an overestimate of the actual 
number

[[Page 27706]]

of for-hire fishing businesses regulated by this temporary rule.
    NMFS also does not have data indicating how many for-hire vessels 
actually harvest gag in a given year. However, in 2020, there were 
1,289 vessels with valid charter vessel/headboat permits for Gulf reef 
fish. Further, gag is only targeted and almost entirely harvested in 
waters off the west coast of Florida. Of the 1,289 federally permitted 
vessels, 803 were homeported in Florida. Of these permitted vessels, 62 
are primarily used for commercial fishing rather than for-hire fishing 
purposes, and thus are not considered for-hire fishing businesses. In 
addition, 46 of these permitted vessels are considered headboats, which 
are considered for-hire fishing businesses. However, headboats take a 
relatively large, diverse set of anglers to harvest a diverse range of 
species on a trip, and therefore do not typically target a particular 
species exclusively. Therefore, NMFS assumes that no headboat trips 
would be canceled, and thus no headboats would be directly affected as 
a result of this regulatory action. However, charter vessels often 
target gag. Of the 803 vessels with a valid charter vessel/headboat 
permit for Gulf reef fish that are homeported in Florida, 695 vessels 
are charter vessels. A recent study reported that 76 percent of charter 
vessels with a valid charter vessel/headboat permit in the Gulf were 
active in 2017, i.e., 24 percent were not fishing. A charter vessel 
would only be directly affected by this temporary rule if it used to go 
fishing. Given this information, NMFS' best estimate of the number of 
charter vessels that are likely to harvest gag in a given year is 528, 
and thus this temporary rule is estimated to regulate 528 for-hire 
fishing businesses.
    For RFA purposes, NMFS has established a small business size 
standard for businesses, including their affiliates, whose primary 
industry is commercial fishing (50 CFR 200.2). A business primarily 
involved in the commercial fishing industry 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 its combined 
annual receipts (revenue) are not in excess of $11 million for all of 
its affiliated operations worldwide. NMFS does not collect revenue data 
specific to commercial fishing businesses that have IFQ accounts; 
rather, revenue data are collected for commercial fishing vessels in 
general. It is not possible to assign revenues earned by commercial 
fishing vessels back to specific IFQ accounts and the businesses that 
possess them because quota is often transferred across many IFQ 
accounts before it is used by the business on a vessel for harvesting 
purposes, and specific units of quota cannot be tracked. However, from 
2016 through 2020, the maximum annual gross revenue earned by a single 
vessel during this time was about $1.73 million in 2016. The average 
gross revenue per vessel was about $108,000 in that year. By 2020, the 
maximum and average gross revenue per vessel had decreased to about 
$730,000 and $79,700, respectively. Based on this information, all 
commercial fishing businesses regulated by this temporary rule are 
determined to be small entities for the purpose of this analysis.
    For other industries, the Small Business Administration has 
established size standards for all major industry sectors in the U.S., 
including for-hire businesses (North American Industry Classification 
System code 487210). A business primarily involved in for-hire fishing 
is classified as a small business if it is independently owned and 
operated, is not dominant in its field of operation (including its 
affiliates), and has annual receipts (revenue) not in excess of $12.5 
million for all its affiliated operations worldwide. The maximum annual 
gross revenue for a single headboat in the Gulf was about $1.38 million 
in 2017. On average, annual gross revenue for headboats in the Gulf is 
about three times greater than annual gross revenue for charter 
vessels, reflecting the fact that businesses that own charter vessels 
are typically smaller than businesses that own headboats. Based on this 
information, all for-hire fishing businesses regulated by this 
temporary rule are determined to be small businesses for the purpose of 
this analysis.
    If implemented, NMFS expects this temporary rule to regulate 455 of 
the 536 businesses with IFQ accounts, or approximately 85 percent of 
those commercial fishing businesses. Further, NMFS expects this 
temporary rule would regulate 528 of the 1,227 for-hire fishing 
businesses with valid charter vessel/headboat permits for Gulf reef 
fish, or approximately 43 percent of those for-hire fishing businesses. 
NMFS has determined that, for the purpose of this analysis, all 
regulated commercial and for-hire fishing businesses are small 
entities. Based on this information, NMFS expects the temporary rule to 
affect a substantial number of small entities.
    Because revenue and cost data are not collected for the commercial 
fishing businesses that are expected to be regulated by this temporary 
rule, direct estimates of their economic profits are not available. 
However, economic theory suggests that annual allocation (quota) prices 
should reflect expected annual economic profits, which allows economic 
profits to be estimated indirectly. Further, the 455 businesses with 
gag shares also own shares in the other IFQ share categories and thus 
are expected to earn profits from their ownership of these shares as 
well, i.e., red snapper, red grouper, shallow-water grouper, deep-water 
grouper, and tilefish.
    However, economic profits will only be realized if the allocated 
quota is used for harvesting purposes. For example, practically all of 
the commercial red snapper quota has been used for harvesting in recent 
years, and so NMFS assumes that all of that quota will be harvested in 
the foreseeable future. Important management changes have occurred for 
red grouper, which partly resulted in 96 percent of the commercial 
quota being harvested in 2021. Thus, this analysis also assumes that 
all of the red grouper quota will be harvested in the future as well. 
However, based on 2017-2021 data, only 82 percent of the deep-water 
grouper quota, 38 percent of the shallow-water grouper quota, and 73 
percent of the tilefish quota have been harvested, and that is expected 
to continue in the foreseeable future. For gag, the quota utilization 
rate from 2017-2021 was approximately 52 percent. Given these quota 
utilization rates in combination with average annual allocation prices 
from 2017-2021 and annual commercial quotas in 2021, the total expected 
economic profits for businesses with gag shares are estimated to be at 
least $29.4 million at the present time. This estimate does not account 
for any economic profits that may accrue to businesses with gag shares 
that also own commercial fishing vessels that harvest non-IFQ species. 
Such profits are likely to be small because harvest of IFQ species 
accounts for around 84 percent of commercial IFQ vessels' annual 
revenue and economic profits from the harvest of non-IFQ species tend 
to be smaller than those from IFQ species. Given that there are 455 
businesses with gag shares, the average annual expected economic profit 
per commercial fishing business is at least $64,620.
    However, most of these economic profits (82 percent) are the result 
of owning red snapper shares. Only approximately $502,930 (or 1.7 
percent) of their expected economic profits is due to the ownership of 
gag shares. This temporary rule is only expected to affect economic 
profits from the ownership of gag shares, specifically because of the 
action that reduces the gag commercial

[[Page 27707]]

ACL from 1.217 million lb (0.552 million kg) to 258,000 lb (117,027 kg) 
and the gag commercial quota from 939,000 lb (426,000 kg) to 199,000 lb 
(90,265 kg). Average annual commercial landings of gag from 2017-2021 
were 492,401 lb (223,349 kg). Because average annual landings exceed 
the commercial quota, NMFS assumes all of the commercial quota will be 
harvested in the future. Further, the expected reduction in annual 
commercial landings is 293,401 lb (133,084 kg). The reduction in 
commercial landings is expected to increase the average ex-vessel price 
of gag from $6.10 per lb to $7.54 per lb, thereby partially offsetting 
the adverse effects of the expected landings reduction. Thus, the 
expected reduction in annual ex-vessel revenue for gag is approximately 
$1.5 million, over the maximum effective period of the temporary rule, 
366 days. Given an average annual allocation price of $1.03 per lb for 
gag from 2017-2021, the expected reduction in commercial landings of 
gag is expected to reduce economic profits to these commercial fishing 
businesses by about $302,200, or by approximately $660 per commercial 
fishing business. Thus, economic profit is expected to be reduced by no 
more than 1 percent on average per commercial fishing business.
    Based on the most recent information available, average annual 
profit is $27,948 per charter vessel. The action that revises the stock 
ACL changes the gag recreational ACL from 1.903 million lb (0.86 
million kg) in MRIP-CHTS units to 403,759 lb (183,142 kg) in MRIP-FES 
units. The terms ``MRIP-CHTS units'' and ``MRIP-FES units'' signify 
that although the current and recreational ACLs are expressed in 
pounds, they are in different scales and not directly comparable. 
However, average recreational landings from 2017-2021 were 
approximately 2.538 million lb (1.151 million kg) in MRIP-FES units. 
Given that average recreational landings have been considerably greater 
than the recreational ACL, all of the recreational ACL is expected to 
be harvested in the future. The recreational ACL reduction would be 
expected to reduce the recreational season length from 214 days to 16 
days, which in turn is expected to reduce the number of trips targeting 
gag on charter vessels by 26,542 angler trips. Net Cash Flow per Angler 
Trip (CFpA) is the best available estimate of economic profit per 
angler trip by charter vessels. CFpA on charter vessels is estimated to 
be $149 per angler trip. Thus, NMFS expects the estimated reduction in 
charter vessel economic profits from this action to be $3.955 million. 
The reduction in charter vessel economic profits is estimated to be 
$7,490 per vessel, or almost 27 percent on average per for-hire fishing 
business.
    The action that changes the recreational season would increase the 
number of target trips for gag by charter vessels during this period 
over the number of target trips in previous years by 2,159 trips, 
thereby partially mitigating the reduction in target trips due to the 
recreational ACL reduction. Assuming the CFpA on charter vessels is 
$149 per angler trip, this action is expected to increase economic 
profits for charter vessels by $321,733, or by $609 per charter vessel. 
Thus, economic profits are expected to be increased by around 2.2 
percent on average per for-hire fishing business.
    Based on the above, the total reduction in economic profits for 
charter vessels from this temporary rule is expected to be about $3.634 
million, or approximately $6,882 per charter vessel. Thus, economic 
profits are expected to be reduced by approximately 24.6 percent on 
average per for-hire fishing business.
    Three alternatives, including the status quo, were considered for 
the action to revise the gag stock ACL, commercial ACL, recreational 
ACL, commercial quota, and recreational ACT of 3.12 million lb (1.415 
million kg), 1.217 million lb (0.552 million kg), 1.903 million lb 
(0.863 million kg), 939,000 lb (426,000 kg), and 1.708 million lb 
(0.775 million kg) based on MRIP-CHTS data. The action in this 
temporary rule will revise the same catch levels for gag to 661,901 lb 
(300,233 kg), 258,000 lb (117,027 kg), 403,759 lb (183,142 kg), 199,000 
lb (90,265 kg), and 362,374 lb (164,370 kg), respectively, based on the 
TMin*2 rebuilding scenario and MRIP-FES data. Similar to the action in 
this temporary rule, the status quo alternative would have retained the 
current allocation of the stock ACL of 39 percent to the commercial 
sector and 61 percent to the recreational sector. But, it also would 
have maintained current the stock ACL, commercial ACL, recreational 
ACL, commercial quota, and recreational ACT stated earlier based on 
MRIP-CHTS data. The status quo alternative was not selected because it 
would not reduce overfishing of gag while a rebuilding plan is being 
developed, contrary to the purpose of this temporary rule.
    A second alternative would have decreased the allocation percentage 
of the gag stock ACL to the commercial sector from 39 percent to 20.5 
percent and increased the allocation percentage to the recreational 
sector from 61 percent to 79.5 percent. Further, based on the TMin*2 
rebuilding scenario and MRIP-FES data, this alternative would have 
revised the gag stock ACL, commercial ACL, recreational ACL, commercial 
quota, and recreational ACT from 3.12 million lb (1.415 million kg), 
1.217 million lb (0.552 million kg), 1.903 million lb (0.863 million 
kg), 939,000 lb (426,000 kg), and 1.708 million lb (0.775 million kg) 
based on MRIP-CHTS data to 611,578 lb (277,407 kg), 125,000 lb (56,699 
kg), 486,204 lb (220,538 kg), 98,000 lb (44,452 kg), and 436,368 lb 
(197,933 kg). This alternative would have reduced overfishing while a 
rebuilding plan is being developed. However, because this temporary 
rule and an extension cannot in combination be in effect for more than 
366 days, this alternative was not selected because the Council advised 
NMFS that it would prefer to address sector allocations for gag on a 
longer-term basis through an amendment to the FMP.
    A third alternative would have decreased the allocation percentage 
of the gag stock ACL to the commercial sector from 39 percent to 18 
percent and increased the allocation percentage to the recreational 
sector from 61 percent to 82 percent. Further, based on the TMin*2 
rebuilding scenario and MRIP-FES data, this alternative would have 
revised the gag stock ACL, commercial ACL, recreational ACL, commercial 
quota and recreational ACT from 3.12 million lb (1.42 million kg), 
1.217 million lb (0.55 million kg), 1.903 million lb (0.86 million kg), 
939,000 lb (426,000 kg), and 1.708 million lb (0.78 million kg) based 
on MRIP-CHTS data to 605,165 lb (274,745 kg), 109,000 lb (49,486 kg), 
496,235 lb (225,291 kg), 84,000 lb (38,136 kg), and 445,370 lb (202,198 
kg). Similar to the second alternative, this alternative would have 
reduced overfishing while a rebuilding plan is being developed. 
However, because this temporary rule and an extension cannot be in 
effect for more than 366 days, this alternative was not selected 
because the Council advised NMFS that it would prefer to address sector 
allocations for gag on a longer-term basis through an amendment to the 
FMP.
    Three alternatives, including the status quo, were considered for 
the action to change the recreational start date from June 1 to 
September 1, and close the season on November 10, unless NMFS projects 
the recreational ACL will be met sooner. The status quo alternative 
would have maintained the recreational season start date of June 1, 
which was expected to result in a recreational season length of only 16

[[Page 27708]]

days compared to 70 days under the action in this temporary rule. This 
alternative was not selected as it would not mitigate the adverse 
effects from the recreational ACL reduction and thereby would have 
resulted in greater adverse effects on small for-hire fishing 
businesses.
    The second alternative would have changed the recreational season 
start date from June 1 to October 1, which would have resulted in a 
recreational season length of 55 days compared to 70 days under the 
action in this temporary rule. Although the second alternative would 
have mitigated some of the adverse effects from the recreational ACL 
reduction, this alternative was not selected because, given the shorter 
season length compared to the action, it would not allow for-hire 
fishing businesses as much flexibility in planning target trips for 
gag, which is particularly desirable during hurricane season, which 
occurs from June 1 through November 30 each year. Further, unlike the 
action in this temporary rule, this alternative does not have a fixed 
closure date, which would increase the probability of exceeding the 
recreational ACL relative to the action in this temporary rule.
    The third alternative would have changed the recreational season 
start date from June 1 to November 1, which would have resulted in a 
recreational season length of 29 days compared to 70 days under the 
action in this temporary rule. Although the third alternative would 
have mitigated some of the adverse effects from the recreational ACL 
reduction, this alternative was not selected because it would not have 
mitigated those adverse effects as much as the action, thereby causing 
relatively greater adverse effects on small for-hire fishing 
businesses. Further, given the shorter season length compared to the 
action in this temporary rule, it would not allow for-hire fishing 
businesses as much flexibility in planning target trips for gag, which 
is particularly desirable during hurricane season. Also, similar to the 
second alternative, this alternative does not have a fixed closure 
date, which would increase the probability of exceeding the 
recreational ACL relative to the action in this temporary rule.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, NMFS prepared a fishery bulletin that also 
serves as the small entity compliance guide. NMFS will send the fishery 
bulletin to all interested parties. A copy of this final temporary rule 
is available from NMFS (see ADDRESSES), and the small entity compliance 
guide is available on the NMFS website at https://www.fisheries.noaa.gov/rules-and-announcements/bulletins.
    There is good cause under authority contained in 5 U.S.C. 553(d)(3) 
to waive the 30-day delay in effectiveness so that this final temporary 
rule can be effective by June 1, 2023. On December 13, 2022, NMFS 
published a temporary rule to withhold a portion of the commercial 
allocation of gag for the 2023 fishing year in anticipation of the 
reduction in the commercial quota in this final temporary rule (87 FR 
76125). If this final temporary rule is not effective by June 1, 2023, 
the regulations at 50 CFR 622.22(a)(4) require NMFS to distribute the 
previously withheld commercial allocation, which would be contrary to 
the purpose of this rule to reduce overfishing for the 2023 fishing 
year. In addition, the current recreational fishing season opens on 
June 1. Therefore, this final temporary rule must be effective by that 
date to constrain recreational harvest to the reduced recreational 
catch limit while providing the maximum number of fishing days. NMFS 
was unable to publish this final temporary rule sooner because NMFS 
determined that it was important to solicit public comments on the 
interim measures, which substantially reduce the allowable harvest of 
gag for the 2023 fishing year, and it took time to complete the 
analyses supporting the proposed temporary rule and to respond to the 
comments received.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Gag, Gulf of Mexico.

    Dated: April 27, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

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

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

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


0
2. In Sec.  622.34:
0
a. Suspend paragraph (e); and
0
b. Add paragraph (i).
    The addition reads as follows:


Sec.  622.34  Seasonal and area closures designed to protect Gulf reef 
fish.

* * * * *
    (i) Seasonal closure of the recreational sector for gag. The 
recreational harvest of gag in or from the Gulf EEZ is closed from 
January 1 through August 31 and from November 10 through December 31. 
During the closure, the bag and possession limits for gag harvested in 
or from the Gulf EEZ are zero.

0
3. In Sec.  622.39:
0
a. Suspend paragraph (a)(1)(iii)(B); and
0
b. Add paragraph (a)(1)(iii)(D).
    The addition reads as follows:


Sec.  622.39  Quotas.

* * * * *
    (a) * * *
    (1) * * *
    (iii) * * *
    (D) Gag. Shallow-water groupers (SWG) have a separate quota for 
gag, among the other species described in the introductory text of 
paragraph (a)(1)(iii) of this section, and as specified in this 
paragraph (a)(1)(iii)(D). This quota is specified in gutted weight, 
that is, eviscerated but otherwise whole. The commercial quota for gag 
is 199,000 lb (90,265 kg).
* * * * *

0
4. In Sec.  622.41:
0
a. Suspend paragraph (d); and
0
b. Add paragraph (r).
    The addition reads as follows:


Sec.  622.41  Annual catch limits (ACLs), annual catch targets (ACTs), 
and accountability measures (AMs).

* * * * *
    (r) Gag--(1) Commercial sector. The IFQ program for groupers and 
tilefishes in the Gulf of Mexico serves as the accountability measure 
for commercial gag. The commercial ACL in gutted weight is 258,000 lb 
(117,027 kg).
    (2) Recreational sector. (i) Without regard to overfished status, 
if gag recreational landings, as estimated by the SRD, reach or are 
projected to reach the applicable ACLs specified in paragraph 
(r)(2)(iv) of this section, the AA will file a notification with the 
Office of the Federal Register, to close the recreational sector for 
the remainder of the fishing year. On and after the effective date of 
such a notification, the bag and possession limits of gag in or from 
the Gulf EEZ are zero. These bag and possession limits apply in the 
Gulf

[[Page 27709]]

on a vessel for which a valid Federal charter vessel/headboat permit 
for Gulf reef fish has been issued, without regard to where such 
species were harvested, i.e., in State or Federal waters.
    (ii) Without regard to overfished status, and in addition to the 
measures specified in paragraph (r)(2)(i) of this section, if gag 
recreational landings, as estimated by the SRD, exceed the applicable 
ACLs specified in paragraph (r)(2)(iv) of this section, the AA will 
file a notification with the Office of the Federal Register to maintain 
the gag ACT, specified in paragraph (r)(2)(iv) of this section, for 
that following fishing year at the level of the prior year's ACT, 
unless the best scientific information available determines that 
maintaining the prior year's ACT is unnecessary. In addition, the 
notification will reduce the length of the recreational gag fishing 
season the following fishing year by the amount necessary to ensure gag 
recreational landings do not exceed the recreational ACT in the 
following fishing year.
    (iii) If gag are overfished, based on the most recent status of 
U.S. Fisheries Report to Congress, and gag recreational landings, as 
estimated by the SRD, exceed the applicable ACL specified in paragraph 
(r)(2)(iv) of this section, the following measures will apply. In 
addition to the measures specified in paragraphs (r)(2)(i) and (ii) of 
this section, the AA will file a notification with the Office of the 
Federal Register, at or near the beginning of the following fishing 
year to reduce the ACL for that following year by the amount of the ACL 
overage in the prior fishing year, and reduce the ACT, as determined in 
paragraph (r)(2)(ii) of this section, by the amount of the ACL overage 
in the prior fishing year, unless the best scientific information 
available determines that a greater, lesser, or no overage adjustment 
is necessary.
    (iv) The recreational ACL in gutted weight is 403,759 lb (183,142 
kg). The recreational ACT in gutted weight is 362,374 lb (164,370 kg).

[FR Doc. 2023-09336 Filed 5-2-23; 8:45 am]
BILLING CODE 3510-22-P