[Federal Register Volume 75, Number 230 (Wednesday, December 1, 2010)]
[Rules and Regulations]
[Pages 74650-74656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30167]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 100806332-0573-02]
RIN 0648-BA02


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

AGENCY: National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Commerce.

ACTION: Final temporary rule.

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

DATES: This rule is effective January 1, 2011 through May 31, 2011.

ADDRESSES: Copies of the final regulatory flexibility analysis (FRFA) 
may be obtained from Peter Hood, Southeast Regional Office, NMFS, 263 
13th Avenue South, St. Petersburg, FL 33701.

FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone: 727-824-5305, 
or e-mail: <a href="/cdn-cgi/l/email-protection#5d0d3829382f73153232391d33323c3c733a322b"><span class="__cf_email__" data-cfemail="8edeebfaebfca0c6e1e1eacee0e1efefa0e9e1f8">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico 
is managed under the fishery management plan (FMP). The FMP was 
prepared by the Council and is implemented through regulations at 50 
CFR part 622 under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act).
    On October 18, 2010, NMFS published the proposed temporary rule and 
requested public comment (75 FR 63786).
    This final temporary rule will reduce the commercial quota for gag, 
reduce the combined commercial SWG quota, prohibit recreational harvest 
of gag, and suspend red grouper multi-use allocation in the Gulf 
grouper and tilefish IFQ program. The purpose of this final temporary 
rule is to reduce overfishing of the gag resource in the Gulf. No 
changes were made to this final rule as a result of public comment.

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 55 comments on the proposed rule.
    Comment 1: A number of commenters questioned the scientific basis 
used to assess gag stocks and how scientific information was applied to 
support fishery management decisions. They indicated the data NMFS used 
were outdated, flawed, or anecdotal.
    Response: Stock assessments are conducted under the scientifically 
peer-reviewed Southeast Data, Assessment, and Review (SEDAR) process 
which was initiated in 2002 to improve the quality and reliability of 
fishery stock assessments in the Gulf, South Atlantic, 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. First, the data workshop documents, analyzes, and 
reviews datasets to be used for assessment analyses. Second, 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 both conducted within this SEDAR process. All 
workshops and Council-initiated meetings to review 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 reviewed the assessment results and made 
recommendations to the Council about the adequacy of the assessments 
and what level to set the acceptable biological catch. The data 
incorporated into the SEDAR assessment is derived from both fishery-
dependent and fishery-independent data. Examples of fishery-dependent 
data include, but are not limited to: Logbook data, trip tickets, 
dockside sampling, dealer reports, and marine recreational fishing 
statistical surveys (MRFSS). Fishery-independent data sources consist 
of data provided through surveys and research conducted by Federal, 
state, and academic institutions. Furthermore, NOAA's Southeast 
Fisheries Science Center reviews and certifies that the actions 
contained in this rulemaking are based on the best available scientific 
information.
    Comment 2: Several individuals doubted that red tide could be 
responsible for the 2005 mortality event modeled in the gag update 
assessment.
    Response: Red tide may 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 took into account decreases in indices of abundance thought to 
have occurred because of the red tide event documented in 2005. 
Although the model cannot show a direct link between the red tide event 
and the

[[Page 74651]]

decrease in gag abundance, it does indicate a variable was present in 
2005 that depressed the stock size.
    Comment 3: Several commenters indicated that it was unfair to close 
the recreational sector while allowing some commercial harvest to 
continue. Comments indicated a complete closure of both sectors would 
be more fair and that commercial fishermen should be able to target 
other species with methods to minimize the bycatch of gag. One 
commenter disliked an implied reference to the opening of the 
recreational sector by the Council in subsequent rulemaking.
    Response: The Council discussed a complete closure to all gag 
harvest pending the outcome of the review of the assessment, but 
determined it was more reasonable to allow some commercial harvest. 
This decision was expected to minimize the mortality of gag caught by 
the commercial sector while targeting other species, and ultimately 
maximize the extent of a recreational season in 2011.
    The commercial sector has a lower overall allocation and harvest of 
gag, and likely a lower overall impact on the gag stock; nevertheless, 
the commercial sector has a higher discard mortality rate of the gag 
that are caught. Because the fish inadvertently caught by commercial 
operations are less likely to survive being caught, the Council decided 
the most reasonable action was to allow some retention of fish that 
would otherwise be discarded dead. The quota of 100,000 lb (45,359 kg) 
was believed to be low enough to discourage commercial vessels from 
fishing in areas with high gag catch, because of the high levels of 
discards in such areas, while still allowing some level of gag 
retention when gag were incidentally caught.
    Although the recreational sector has a lower discard mortality 
rate, it has a higher discard rate, as well as a much larger allocation 
of the total allowable catch, thus resulting in a substantial number of 
dead discards by the recreational sector overall. Thus, allowing the 
recreational sector even a limited harvest of gag early in 2011 would 
result in large number of dead discards as well. If this temporary 
closure were not to occur for the recreational sector, projections 
indicate that gag harvest would likely close early in the 2011 fishing 
year, leading to a very abbreviated season. The Council's request is 
expected to discourage fishing in areas where gag catch is likely to 
occur, and minimize the number of gag dead discards until the Council 
can implement 2011 management measures through Amendment 32. Landing 
projections indicate the recreational season length could be maximized 
by moving the gag recreational season to the summer. Therefore, more 
restrictive measures early in the 2011 season are ultimately expected 
to result in greater season length later in the year and greater 
fishing opportunities for the recreational sector as a whole.
    Comment 4: Several commenters indicated gag are plentiful and, 
therefore, further management measures 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, and changing the 
status of gag to a gamefish.
    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 Scientific and Statistical Committee (SSC) 
was the model taking into account the 2005 episodic mortality event. 
This model indicated the stock was overfished and undergoing 
overfishing, prompting NMFS to inform the Council of this condition and 
that action is needed to rebuild the stock.
    In evaluating different management measures, the Council evaluated 
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, and these alternatives indicated a summer season would best 
maximize the time the sector could remain open. Given the uncertainty 
surrounding the reductions needed for gag resulting from issues with 
how dead discards were treated in the update assessment, and given the 
Council's recommendation that the recreational season could be 
maximized in the summer, the Council requested a temporary closure of 
the recreational sector until these issues could be resolved.
    Comment 5: Several commenters stated that shifts in species 
abundance have negatively affected gag stocks. Specifically, an 
increased red snapper population has shifted gag away from their 
primary habitats and an increased goliath grouper population is feeding 
heavily on gag.
    Response: Species interactions among Gulf reef fish species are 
poorly understood; models that examine the linkages between species are 
not yet adequate to determine the effects of management measures on 
species interactions. However, it is important to note that species 
such as red snapper and goliath grouper are managed by NMFS and the 
Council to improve their stock condition. Therefore, as these stocks 
improve, some interactions could occur through competition for food or 
habitat. With respect to goliath grouper, although they do feed on fish 
and will opportunistically prey upon fish caught with hook-and-line, 
they feed primarily on crustaceans. In one scientific study, conducted 
by Coleman and Koenig, over 200 goliath grouper were sampled from the 
Gulf, and no grouper species were found in the analysis of their 
stomach contents (http://www.bio.fsu.edu/coleman_lab/goliath_grouper.php).
    Comment 6: Some commenters indicated that gag overharvest was due 
to the actions of the commercial sector. They suggested implementing 
measures to restrict commercial harvest such as banning longline gear, 
instead of reducing recreational harvest.
    Response: When the allocation of gag harvest was developed for the 
recreational and commercial sectors in Amendment 30B, it was based on 
average landings between 1986 and 2005. The resultant allocation ratio 
is 61:39, respectively. Therefore, even if commercial harvest were 
prohibited, some restrictions on recreational harvest would still be 
necessary to allow the stock to rebuild. It is beyond the scope of this 
temporary rule to ban longline gear because such a ban would not end 
overfishing; however, recently implemented management measures taken 
through Amendment 31 (75 FR 21512; April 26, 2010) have reduced the 
number of longline vessels in the Gulf reef fish fishery and further 
limited where they can fish.
    Comment 7: Several commenters 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: It is outside of the scope of this temporary rule to 
consider regionalized management because such an approach would not 
lead directly to ending overfishing. However, the Council continues to 
examine regionalized management for reef fish species. In the course of 
developing long-term management measures in Amendment 32, the Council 
is considering seasonal-area closures for grouper species which is 
considered an example of regionalized management.
    Comment 8: Several commenters indicated fishing effort was reduced

[[Page 74652]]

because of current economic conditions and fishery closures resulting 
from the Deepwater Horizon MC252 oil spill.
    Response: In developing fishing regulations to limit harvest, 
current and past fishing effort levels are taken into account. These 
levels would reflect trends in effort because of factors such as the 
economy and the oil spill. As shown in the environmental assessment for 
this action, gag effort, in 2009, was below the 2005-2009 average. 
However, these recent reductions in effort are likely less than what 
will be needed to end overfishing of gag and rebuild the stock.
    NMFS is in the process of analyzing landings data to determine the 
effects of the spill on fishing effort. Oil from the Deepwater Horizon 
MC252 incident, at its maximum extent, affected approximately one-third 
of the Gulf EEZ, from western Louisiana east to the panhandle of 
Florida and south to Campeche Bay in Mexico. However, the affected 
areas are outside the west Florida Shelf where gag are primarily found. 
Most of the gag habitat was either not affected by fishery closures 
resulting from the oil spill, or the duration of the closures was 
limited. Therefore, the opportunity to harvest gag was minimally 
affected compared to the opportunity to harvest other species primarily 
harvested in the northern Gulf, such as red snapper.
    Comment 9: One commenter suggested that the proposed prohibition on 
the recreational harvest of gag would do little to reduce the total 
number of gag killed by the Gulf reef fish fishery because recreational 
harvest would still result in gag bycatch and subsequent release 
mortality.
    Response: The total number of gag caught and released under a 
recreational harvest prohibition would be less than if the harvest 
prohibition were not in place. Based on data from the 2006 SEDAR 
assessment, recreationally discarded fish have a lower discard 
mortality rate (~32 percent) than commercially discarded fish (~67 
percent), and therefore the likelihood of survival for released fish is 
much higher for the recreational sector. This is because recreational 
effort primarily occurs in shallower waters where discard mortality 
rates are low.

Classification

    The Regional Administrator, Southeast Region, NMFS, (RA) determined 
that the interim measures this final temporary rule will implement are 
necessary for the conservation and management of the Gulf gag resource. 
The RA has also determined that this final temporary rule is consistent 
with the national standards of the Magnuson-Stevens Act and other 
applicable laws.
    This final temporary rule has been determined to be not significant 
for the purposes of E.O. 12866.
    A final regulatory flexibility analysis (FRFA) was prepared. 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 analysis is 
available from NMFS (see ADDRESSES). A summary of the FRFA follows.
    The Magnuson-Stevens Act provides the statutory basis for this 
final rule. No duplicative, overlapping, or conflicting Federal rules 
have been identified.
    No comments received directly raised issues specific to the IRFA. 
However, many comments raised concerns regarding the Regulatory Impact 
Review (RIR) in the Environmental Assessment (EA). Some of these 
comments address issues indirectly related to the IRFA. While the IRFA 
analyzes the economic effects on small entities, a direct relationship 
exists between the RIR and the IRFA. Thus, all comments related to the 
RIR and IRFA are addressed here.
    A number of public comments were received regarding the economic 
impact of the gag component of the reef fish fishery to the U.S. 
economy, most of which mentioned the economic impact of recreational 
sector. These comments stated that NMFS did not conduct an economic 
assessment of the affected economic environment, the assessment was 
incomplete, or the assessment was inaccurate.
    Using the best available information, NMFS conducted an economic 
impact assessment of the gag component of the reef fish fishery to the 
U.S. economy. For the commercial sector, this assessment included 
information regarding the number of affected shareholders and vessels, 
their landings, gross revenue, shares and allocation of gag, and the 
distribution of longline endorsements. Information regarding the number 
of affected dealers, as well as the volume and value of their seafood 
purchases, was also included. The assessment also included information 
regarding the value of imported grouper. In addition, ex-vessel revenue 
was used to generate estimates of impacts to the U.S. economy in terms 
of output, income, and the number of full-time equivalent (FTE) jobs.
    For the recreational sector, the analysis included estimates of 
losses in pounds and number of fish, which were used to estimate the 
loss in consumer surplus to all anglers. For the for-hire sector, the 
analysis also incorporated estimates of the number of adversely 
affected for-hire (charter and headboat) vessels, as well as the 
reduction in target trips for gag and net operating revenue by month 
and for the duration of the closure. In addition, estimates of adverse 
economic impacts to the U.S. economy in terms of lost output, value-
added, and the number of full-time equivalent (FTE) jobs were also 
provided. Estimates of these adverse economic impacts were also broken 
down by State and mode. For these reasons, no changes were made to this 
final rule as a result of these comments.
    This final temporary rule is expected to directly affect commercial 
harvesting and for-hire operations. The Small Business Administration 
(SBA) has established size criteria for all major industry sectors in 
the U.S., including fish harvesters. A business involved in fish 
harvesting is classified as a small business if it is independently 
owned and operated, is not dominant in its field of operation 
(including its affiliates), and has combined annual receipts not in 
excess of $4.0 million (NAICS code 114111, finfish fishing) for all its 
affiliated operations worldwide. For for-hire vessels, the other 
qualifiers apply and the receipts threshold is $7.0 million (NAICS code 
713990, recreational industries).
    This final temporary rule is expected to directly affect commercial 
fishing vessels whose owners possess gag fishing quota shares and for-
hire fishing vessels that harvest gag. As of October 1, 2009, 970 
entities owned a valid commercial Gulf reef fish permit and thus were 
eligible for initial shares and allocation in the grouper and tilefish 
IFQ program. Of these 970 entities, 908 entities initially received 
shares and allocation of grouper or tilefish, and 875 entities 
specifically received gag shares and an initial allocation of the 
commercial sector's gag quota in 2010. These 875 entities are expected 
to be directly affected by the actions to reduce the commercial quota 
for gag and disallow the conversion of red grouper allocation to multi-
use allocation.
    Of the 875 entities that initially received gag shares, 215 were 
not commercially fishing in 2008 or 2009 and thus had no commercial 
fishing revenue during these years. On average, these 215 entities 
received an initial allocation of 874 lb (397 kg) of gag in 2010. Eight 
of these 215 entities also received a bottom longline endorsement in 
2010. These 8 entities received a much higher initial allocation of gag 
in 2010, with an average of 3,139 lb (1,427 kg).

[[Page 74653]]

    The other 660 entities that initially received gag shares and 
allocations in 2010 were active in commercial fisheries in 2008 or 
2009. The maximum annual commercial fishing revenue in 2008 or 2009 by 
an individual vessel with commercial gag fishing quota shares was 
approximately $606,000 (2008 dollars).
    The average charterboat is estimated to earn approximately $88,000 
(2008 dollars) in annual revenue, while the average headboat is 
estimated to earn approximately $461,000 (2008 dollars). Based on these 
values, all commercial and for-hire fishing vessels expected to be 
directly affected by this final temporary rule are determined for the 
purpose of this analysis to be small business entities.
    Of the 660 commercial fishing vessels with commercial landings in 
2008 or 2009, 139 vessels did not have any gag landings in 2008 or 
2009. Their average annual gross revenue in these 2 years was 
approximately $50,800 (2008 dollars). The vast majority of these 
vessels' commercial fishing revenue is from a combination of snapper, 
mackerel, dolphin, and wahoo landings. On average, in 2010, these 
vessels received an initial allocation of 540 lb (245 kg) of gag quota.
    The remaining 521 commercially active fishing vessels did have 
landings of gag in 2008 or 2009. Their average annual gross revenue 
from commercial fishing was approximately $71,000 (2008 dollars) 
between the two years. On average, these vessels had 2,375 lb (1,080 
kg) and 1,300 lb (591 kg) of gag landings in 2008 and 2009 
respectively, or 1,835 lb (834 kg) between the 2 years. Gag landings 
accounted for approximately 8 percent of these vessels' annual average 
gross revenue, and thus they are somewhat, though not significantly, 
dependent on revenue from gag landings. These vessels' average initial 
gag allocation in 2010 was 2,121 lb (964 kg). Therefore, on average, 
their 2008 gag landings were very near their 2010 gag allocation, but 
their 2009 gag landings were considerably less than their 2010 
allocation.
    Of these 521 vessels, 52 vessels also received a bottom longline 
endorsement in 2010. These particular vessels' average annual revenue 
was approximately $156,000 (2008 dollars) in 2008 and 2009. Revenue 
from gag landings decreased from approximately $15,900 to $8,400 in 
2009 and thus they became relatively less dependent on gag landings. 
These vessels are highly dependent on revenue from red grouper 
landings, which accounted for 54 percent and 47 percent of their gross 
revenue in 2008 and 2009, respectively. Revenue from deep-water grouper 
(DWG) landings decreased only slightly, from approximately $36,000 in 
2008 to $31,000 in 2009, and thus these vessels became relatively more 
dependent on revenue from DWG landings. Their average initial 2010 
allocation of gag was approximately 5,507 lb (2,503 kg) while their 
average gag landings were 3,933 lb (1,788 kg) and 2,204 lb (1,002 kg) 
in 2008 and 2009, respectively. Thus, vessels that now have a bottom 
longline endorsement have been harvesting well below that allocation in 
recent years, particularly in 2009.
    The for-hire fleet is comprised of charter vessels, which charge a 
fee on a vessel basis, and headboats, which charge a fee on an 
individual angler (head) basis. The harvest of gag in the EEZ by for-
hire vessels requires a charter vessel/headboat permit for Gulf reef 
fish. On March 23, 2010, there were 1,376 valid or renewable for-hire 
Gulf reef fish permits. A valid permit is a non-expired permit. Expired 
reef fish for-hire permits may not be actively 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 during the renewal period after 
the permit's expiration. The majority (823, or approximately 60 
percent) of the 1,376 valid or renewable permits were registered with 
Florida addresses. The registration address for the Federal permit does 
not restrict operation to Federal waters off that state; however, 
vessels would be subject to any applicable state permitting 
requirements. Although the permit does not distinguish between 
headboats and charter vessels, it is estimated that 79 headboats 
operate in the Gulf. The majority of these vessels (43, or 
approximately 54 percent) operate from Florida ports. Given that nearly 
99 percent of target effort for gag and 97 percent of the economic 
impacts from the recreational sector for gag in the Gulf reef fish 
fishery are in west Florida, it is assumed that the 823 for-hire 
vessels (780 charter vessels and 43 headboats) in Florida are expected 
to be directly affected by the action to reduce the recreational bag 
limit for gag to zero.
    The 215 entities with gag shares that did not participate in 
commercial fishing in 2008 or 2009 have no commercial fishing revenue 
and did not earn profit from commercial fishing in those 2 years. Under 
the action to decrease the commercial quota for gag, their allocation 
of gag in 2011 would be reduced, on average, from 874 lb (397 kg) to 61 
lb (28 kg), or by approximately 813 lb (370 kg). Using the 2008 average 
price of $3.52 per lb, this loss in allocation could potentially 
represent an annual loss of nearly $2,900 in gross revenue per entity. 
For the eight entities with gag shares that also possess longline 
endorsements, their average annual allocation of gag would be reduced 
from 3,139 lb (1,427 kg) to 220 lb (100 kg), or by 2,919 lb (1,327 kg). 
Thus, their potential loss in gross revenue, estimated to be nearly 
$10,280, could be much higher. However, in general, this potential loss 
in gross revenue could only reduce profit if these entities not only 
become active in commercial fishing, but specifically intend to harvest 
gag in 2011 and at a level above their reduced allocation. 
Alternatively, these potential losses in gross revenue could be due to 
these entities' inability to sell the allocations they are losing under 
this action, though this possibility presumes that a demand for these 
allocations exists. Regardless, the significance of this potential loss 
in gross revenue to these 215 entities cannot be evaluated given the 
lack of information on potential gross revenue and profit from 
commercial fishing in general and specifically for gag.
    Profit estimates are not currently available for the 139 entities 
with gag shares that participated in commercial fisheries other than 
gag. However, since these vessels did not have any gag landings, none 
of their gross revenue and thus none of their profit were the result of 
gag harvests. Under the action to decrease the commercial quota for 
gag, their average allocation of gag in 2011 would be reduced from 540 
lb (245 kg) to 38 lb (17 kg), or by approximately 502 lb (228 kg). 
Using the 2008 average price of $3.52 per pound, this loss in 
allocation could potentially represent an annual loss of nearly $1,800 
in gross revenue per entity. However, this potential loss in gross 
revenue could only lead to a loss in profit if these entities intend to 
become active in the gag component of the Gulf reef fish fishery in 
2011 and at a level above their reduced allocation. Thus, for example, 
assuming these vessels intend to harvest gag in 2011 at a level 
equivalent to their 2010 allocation, and this harvest was in addition 
to, rather than in place of, their recent commercial fishing 
activities, the reduction in allocation could lead to a maximum loss of 
approximately three percent in gross revenue which could in turn reduce 
profit. Alternatively, these losses in gross revenue could be due to 
these entities' inability to sell the allocations they are losing under 
this action, though this possibility presumes

[[Page 74654]]

that a demand for these allocations exists.
    Profit estimates are not currently available for the 521 entities 
with gag shares that participated in the commercial gag sector of the 
Gulf reef fish fishery in 2008 or 2009. Under the action to decrease 
the commercial gag quota, these vessels' gag allocations would be 
reduced from 2,121 lb (964 kg) to 148 lb (67 kg), or by approximately 
1,973 lb (897 kg) on average. As these vessels have been harvesting at 
levels near their 2010 allocation in recent years on average, this 
reduction in gag allocation is likely to lead to a future reduction in 
gag landings and therefore gross revenue. Using the average 2008 price 
of $3.52 per pound, it is estimated that these vessels could lose 
nearly $6,950, or approximately 10 percent, in average annual gross 
revenue. A loss in gross revenue of this magnitude would likely lead to 
a reduction in profit.
    However, for the 52 vessels with gag shares that were active in the 
gag component of the Gulf reef fish fishery and also received a bottom 
longline endorsement in 2010, their allocation of gag in 2011 would 
decrease from 5,707 lb (2,594 kg) to 400 lb (182 kg), or by 
approximately 5,307 lb (2,412 kg) under this action. This loss in 
landings is estimated to be valued at approximately $18,700 in gross 
revenue, or 12 percent of their average annual gross revenue. Such a 
loss in gross revenue would likely reduce their profit.
    Under the action to suspend the conversion of red grouper 
allocation into multi-use allocation valid toward the harvest of red 
grouper or gag, minimal adverse economic effects are expected as a 
result of commercial fishing entities not being allowed to convert 4 
percent of their red grouper allocation into multi-use allocation. 
Multi-use allocation that has been converted from red grouper 
allocation can only be used to possess, land, or sell gag after an 
entity's gag and gag multi-use allocation has been landed, sold, or 
transferred. As a result of this reduction in the commercial gag quota, 
it is likely these entities will exhaust their gag and gag multi-use 
allocations relatively early in 2011. Revenue from gag landings is 
greater than revenue from an equivalent amount of red grouper landings 
since gag commands a relatively higher market price. Thus, total 
commercial fishing revenue and, therefore, profit per vessel could be 
slightly less than if the multi-use conversion were allowed to 
continue.
    Net operating revenues (NOR) are assumed to be representative of 
profit for for-hire vessels. It is assumed that 823 for-hire vessels, 
780 charter vessels, and 43 headboats, participate in the recreational 
gag component of the Gulf reef fish fishery. Estimates of NOR from 
recreational fisheries other than gag, and thus across all fisheries in 
which these charter vessels and headboats participate, are not 
currently available. However, on average, NOR for charter vessels from 
trips targeting gag are estimated to be approximately $1.34 million per 
year while NOR for headboats from trips targeting gag are estimated to 
be $81,000 per year. NOR for all trips targeting gag are estimated to 
be approximately $1.35 million per year. The average annual NOR from 
trips targeting gag are estimated to be $1,716 per charter vessel and 
$1,881 per headboat.
    When the length of the gag season is reduced by setting the 
recreational bag limit for gag at zero, some trips that formerly 
targeted gag will instead target other species while other trips that 
formerly targeted gag will be cancelled. Assuming the NOR per trip is 
constant regardless of the species targeted, for-hire operators will 
only lose NOR from trips cancelled as a result of the shortened season 
length. Information regarding the number of trips cancelled as a result 
of the shortened season is not current available. Thus, this analysis 
assumes that all of the current for-hire trips targeting gag will be 
cancelled. Because some of these trips would probably not be cancelled, 
this assumption is expected to overestimate the actual reduction in NOR 
associated with a shorter season. Thus, the following estimates of 
losses in NOR and profit for charter vessels and headboats should be 
considered maximum values.
    Under the action to set the gag recreational bag limit for gag at 
zero, the losses in NOR from trips targeting gag for charter vessels 
and headboats are estimated to be approximately $750,000 and $43,000, 
respectively, if this final temporary rule is not extended for up to 
186 days as allowed under the Magnuson-Stevens Act for interim 
measures. Thus, the losses in NOR from trips targeting gag are 
estimated to be $962 and $1,000 per charter vessel and headboat, 
respectively. These NOR losses represent a loss in profit from trips 
targeting gag of approximately 56 percent and 53 percent per charter 
vessel and headboat, respectively. However, if there is an extension of 
this final temporary rule, the losses in NOR for charter vessels and 
headboats are estimated to be approximately $1.34 million and $81,000, 
respectively. Thus, the losses in NOR are estimated to be $1,716 and 
$1,881 per charter vessel and headboat, respectively. These losses in 
NOR represent a loss in profit for all charter vessel and headboat 
trips targeting gag. This action is not expected to affect profit for 
charter vessels and headboats from trips not targeting gag. Vessel 
dependence on fishing for individual species cannot be determined with 
available data. Although some vessels are likely more dependent on 
trips that target gag than other vessels, overall, about three percent 
of for-hire anglers are estimated to target gag. As a result, while the 
action would be expected to substantially affect the NOR derived from 
gag trips, overall, gag trips do not comprise a substantial portion of 
total for-hire trips nor would they, by extension, be expected to 
account for a substantial portion of total for-hire NOR.
    No additional economic effects would be expected to result from the 
revised SWG quota because the updated SWG quota simply reflects the 
reduction in the commercial gag quota, the effects of which have 
already been discussed.
    Three alternatives, including the status quo, were considered for 
the action to reduce the commercial quota for gag from 1.49 million lb 
(0.68 million kg) to 100,000 lb (45,359 kg) in 2011. The first 
alternative, the status quo, would have maintained the commercial quota 
for gag at 1.49 million lb (0.68 million kg) in 2011. This alternative 
is not consistent with the goals and objectives of the Council's plan 
to manage gag to achieve the mandates of the Magnuson-Stevens Act. 
Specifically, selection of this alternative would be inconsistent with 
current National Standard 1 guidance because this quota would be above 
the allowable biological catch (ABC) recommended by the Council's SSC 
of 1.17 million lb (0.53 million kg) for 2011. In addition, this 
alternative would promote overfishing and slow recovery of the stock.
    The second alternative would have set the commercial quota for gag 
at 390,000 lb (0.18 million kg), with one option to release the entire 
quota on January 1, 2011 and a second option to release 50 percent of 
the quota on January 1, 2001 and the remaining 50 percent on July 1, 
2011. This quota is based on projected fishing mortality at optimum 
yield (F<INF>OY</INF>) yield streams, 1.01 million lb (0.46 million kg) 
for 2011, and is consistent with the methods used by the Council in 
Amendment 30B for setting the annual catch target. This harvest level 
corresponds with the Council's initial request for an interim rule at 
its June 2010 meeting. The commercial quota for gag under this 
alternative is less than what the quota would be if based on the SSC's 
ABC recommendation (F<INF>Rebuild</INF>

[[Page 74655]]

yield stream) of 1.17 million lb (0.53 million kg). Based on the SSC's 
recommendation, selecting this alternative would have a less than 50 
percent chance of overfishing by the commercial sector and would 
provide a greater than 50 percent chance of rebuilding the stock if 
this yield stream is adhered to in future actions. However, recent 
discrepancies with the estimation of dead discards could affect how the 
assessment projects the status of the stock. If these discrepancies 
show a more pessimistic condition of the stock when the assessment is 
rerun, then selecting this alternative could result in harvest levels 
inconsistent with rebuilding the stock within the time frames outlined 
in the Magnuson-Stevens Act. Should these discrepancies result in a 
more optimistic condition of the stock, then the commercial quota for 
gag could be increased in subsequent actions.
    The third alternative is the most conservative and would set the 
commercial quota for gag equal to zero. Under this alternative, any 
addition to the quota would be initiated through Amendment 32 or some 
other rulemaking vehicle. Closure of the commercial sector to gag would 
benefit the stock by ending overfishing as well as halt gag fishing 
during the primary gag spawning season. However, this alternative would 
not allow gag allocation holders to land gag that might be caught 
incidentally when fishing for other species. Instead, these fish would 
have to be released. Because the commercial sector generally operates 
in relatively deep waters, a large proportion of these fish would 
likely die from barotrauma (injuries sustained in response to the 
sudden pressure change when brought to the surface from depth) and from 
handling onboard the vessel. Release mortality has been estimated to be 
67 percent on average for commercial discards. This high rate of 
discard mortality would contribute to overall mortality, thereby 
slowing recovery of the stock and thus is contrary to the Council's 
objectives.
    Two alternatives, including the status quo, were considered for the 
action to suspend the ability of allocation holders to convert red 
grouper allocation into multi-use allocation valid toward the harvest 
of red grouper or gag. The first alternative, the status quo, would 
continue to allow 4 percent of the red grouper allocation to be 
converted into multi-use allocation. This alternative is expected to 
result in gag harvests that would exceed specified annual catch limits, 
promote overfishing, and therefore slow recovery of the stock, contrary 
to the Council's objectives. Further, this alternative is also expected 
to result in greater adverse economic effects stemming from the 
corrective measures that would be implemented to address the over-
harvesting of gag.
    The second alternative would allow a smaller percentage (1.6 
percent) of red grouper allocation to be converted into multi-use 
allocation based on the buffer existing between the commercial annual 
catch limit (ACL) and quota for gag. This alternative is consistent 
with a gag commercial ACL of 1.76 million lb (0.8 million kg) and a 
1.49 million lb (0.68 million kg) commercial quota for gag. Since this 
final rule will establish the commercial quota for gag at only 100,000 
lb (45,359 kg), the percentage of red grouper allocation that could be 
converted to multi-use allocation is too high under this alternative as 
it is expected to result in gag harvests that would exceed specified 
ACLs, promote overfishing, and therefore slow recovery of the stock, 
contrary to the Council's objectives.
    Two alternatives, including the status quo, were considered for the 
action to set the recreational bag limit at zero. The first 
alternative, the status quo, would maintain the recreational catch 
target at 2.20 million lb (1 million kg) as defined in Amendment 30B 
and thus maintain the current recreational bag limit of two gag within 
the four fish aggregate grouper bag limit. Selection of this 
alternative would be inconsistent with current National Standard 1 
guidance because this level of harvest would be above the ABC 
recommended by the Council's SSC of 1.17 million lb (0.53 million kg) 
for 2011. In addition, this alternative would promote overfishing and 
slow recovery of the stock.
    The second alternative would set the gag bag limit to zero on the 
date when 620,000 lb (0.28 million kg) of gag is projected to be landed 
by the recreational sector in 2011. This harvest level is consistent 
with the fishing mortality rate associated with the optimum yield (OY) 
used by the Council in Amendment 30B to set the recreational annual 
catch target. Under certain assumptions regarding the disposition of 
discards, this alternative is expected to result in a fishing season of 
83 days. Given the closure of the SWG recreational sector annually from 
February 1 to March 31, fishing would be allowed for the month of 
January and from April 1 to May 22. However, this fishing season is 
dependent on achieving the same percentage reduction in dead discards 
as obtained from the harvest. If these levels of reduction are not met, 
then harvesting this amount of fish could exceed the reductions needed 
for the stock to recover under the rebuilding plan being developed in 
Amendment 32 which, in turn, could require deeper cuts in future 
harvests than those projected by the current assessment update.
    Although, as specified by the Magnuson-Stevens Act, the actions in 
this final temporary rule do not need to end overfishing, they do need 
to reduce overfishing. This alternative could limit the types of long-
term measures developed by the Council in Amendment 32 that could be 
applied to the 2011 fishing year since the 620,000 lb (0.28 million kg) 
catch target would likely be achieved before rulemaking from Amendment 
32 is implemented. Therefore, the harvest for the rest of the fishing 
year could be zero and any long-term measures developed in Amendment 32 
would not apply until 2012.
    Further, recent discrepancies with the estimation of dead discards 
could affect how the assessment projects the status of the stock. If 
these discrepancies show a more pessimistic condition of the stock when 
the assessment is redone, then selecting this alternative could result 
in harvest levels inconsistent with rebuilding the stock within the 
time frames outlined in the Magnuson-Stevens Act. This potential 
outcome is particularly important for the recreational sector which 
harvests a greater proportion of the gag total catch than the 
commercial sector. Conversely, should these discrepancies result in a 
more optimistic condition of the stock, the recreational catch target 
and bag limit could be increased in subsequent actions.
    This final temporary rule does not establish any new reporting, 
recordkeeping, or other compliance requirements.

List of Subjects in 50 CFR Part 622

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

    Dated: November 24, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
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.

[[Page 74656]]

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) Closure of the recreational sector for gag. The recreational 
sector for gag in the Gulf EEZ is closed. During the closure, all 
recreational harvest and possession of gag grouper in or from the Gulf 
EEZ is prohibited. Such fish caught in the Gulf EEZ must be released 
immediately with a minimum of harm.

0
4. In Sec.  622.39, paragraph (b)(1)(ii) is suspended, and paragraph 
(b)(1)(viii) is added, to read as follows:


Sec.  622.39  Bag and possession limits.

* * * * *
    (b) * * *
    (1) * * *
    (viii) Groupers, combined, excluding goliath grouper, Nassau 
grouper, and gag--4 per person per day, but not to exceed 1 speckled 
hind or 1 warsaw grouper per vessel per day, or 2 red grouper per 
person per day. However, no grouper may be retained by the captain or 
crew of a vessel operating as a charter vessel or headboat. The bag 
limit for such captain and crew is zero.
* * * * *

0
5. In Sec.  622.42, paragraphs (a)(1)(iii)(A)(3) and (a)(1)(iii)(B)(3) 
are suspended, and paragraphs (a)(1)(iii)(A)(4) and (a)(1)(iii)(B)(4) 
are added, to read as follows:


Sec.  622.42  Quotas.

    (a) * * *
    (1) * * *
    (iii) * * *
    (A) * * *
    (4) For fishing year 2011 and subsequent fishing years--4.83 
million lb (2.19 million kg).
    (B) * * *
    (4) For fishing year 2011 and subsequent fishing years--100,000 lb 
(45,359 kg).
* * * * *
[FR Doc. 2010-30167 Filed 11-30-10; 8:45 am]
BILLING CODE 3510-22-P


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