[Federal Register Volume 74, Number 72 (Thursday, April 16, 2009)]
[Rules and Regulations]
[Pages 17603-17611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8764]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 070719384-9260-05]
RIN 0648-AV80


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Amendment 30B

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

ACTION:  Final rule.

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SUMMARY:  NMFS issues this final rule to implement Amendment 30B to the 
Fishery Management Plan for the Reef Fish Resources of the Gulf of 
Mexico (FMP) prepared by the Gulf of Mexico Fishery Management Council 
(Council). This final rule establishes annual catch limits (ACLs) and 
accountability measures (AMs) for commercial and recreational gag, red 
grouper, and shallow-water grouper (SWG); establishes a commercial 
quota for gag; adjusts the commercial quotas for red grouper and SWG; 
removes the commercial closed season for SWG; establishes an incidental 
bycatch allowance trip limit for commercial gag and red grouper; 
reduces the commercial minimum size limit for red grouper; reduces the 
gag bag limit and the aggregate grouper bag limit; increases the red 
grouper bag limit; extends the closed season for recreational SWG; 
eliminates the end date for the Madison-Swanson and Steamboat Lumps 
marine reserves; and requires that federally permitted reef fish 
vessels comply with the more restrictive of Federal or state reef fish 
regulations when fishing in state waters. In addition, Amendment 30B 
establishes management targets and thresholds for gag consistent with 
the requirements of the Sustainable Fisheries Act (SFA); sets the gag 
and red grouper total allowable catch (TAC); and establishes interim 
allocations for the commercial and recreational gag and red grouper 
fisheries. This final rule is intended to end overfishing of gag and 
maintain catch levels of red grouper consistent with achieving optimum 
yield.

DATES:  This rule is effective May 18, 2009.

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

FOR FURTHER INFORMATION CONTACT:  Peter Hood, 727-824-5305.

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico 
is managed under the FMP. The FMP was prepared by the Council and is 
implemented through regulations at 50 CFR part 622 under the authority 
of the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act).
    On October 28, 2008, NMFS published a notice of availability of 
Amendment 30B and requested public comments (73 FR 63932). On November

[[Page 17604]]

18, 2008, NMFS published the proposed rule to implement Amendment 30B 
and requested public comments (73 FR 68390). NMFS approved Amendment 
30B on January 23, 2009. The rationale for the measures contained in 
Amendment 30B is provided in the amendment and in the preamble to the 
proposed rule and is not repeated here.

Comments and Responses

    NMFS received 30 public comments on Amendment 30B and the proposed 
rule, including 27 comments from individuals, 2 from government 
agencies, and 1 from a non-governmental entity. The following is a 
summary of the comments and NMFS' respective responses.
    Comment 1: The science used to assess gag and red grouper stocks is 
questionable. Specifically, the process is not transparent, large 
swings in biomass are not plausible for long-lived species such as 
groupers, and there is no link between inshore nursery grounds for gag 
and offshore spawning of gag.
    Response: Stock assessments are currently conducted under the 
Southeast Data, Assessment, and Review (SEDAR) process. This process 
was initiated in 2002 to improve the quality and reliability of fishery 
stock assessments in the South Atlantic, Gulf of Mexico, and U.S. 
Caribbean. The intent of the SEDAR process is to improve the scientific 
quality of stock assessments, and places greater relevance on 
historical and current information 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. Each SEDAR assessment is 
organized into three workshops. The data workshop documents, analyzes, 
and reviews datasets to be used for assessment analyses. The assessment 
workshop develops and refines quantitative population analyses and 
estimates population parameters. The review workshop is conducted by a 
panel of independent experts who review the data and the assessment and 
recommend the most appropriate management measures for the assessed 
stocks. Both gag and red grouper assessments were conducted using this 
process. All workshops and Council meetings held to review these 
assessments were open to the public and included industry participants, 
non-governmental organizations, scientists and other constituents on 
the various SEDAR panels.
    In exploited long-lived populations, such as groupers, recruits 
from strong year classes supplement the adult spawning biomass until 
the strong year classes have been reduced through fishing pressure and 
natural mortality. This can cause fluctuations in the spawning stock if 
subsequent year classes are not as strong. For gag and red grouper, 
year class trends have been readily documented through a continuous 
series of age structure sampling. These data indicate strong 
recruitment years for gag in 1985, 1989, 1993, 1996, 1999, and possibly 
2000. Strong year classes for red grouper occurred in 1991, 1996, and 
1999. As an example of how these strong year classes can affect 
fisheries, the last stock assessment for red grouper showed the red 
grouper component of the Gulf reef fish fishery has been supported by 
the 1999 year-class. Red grouper abundance peaked in 2004, as the 1999 
year-class fully recruited to the fishery. Since then, updated red 
grouper abundance indices have shown a declining trend, suggesting red 
grouper stock biomass may be declining.
    Linkages between inshore juvenile and offshore adult populations of 
gag have been well documented. The linkages have been shown through 
tagging studies, correlations between year-class population strength, 
and otolith microchemistry. These studies all demonstrate a movement 
from inshore nursery areas such as seagrass beds to adult spawning and 
foraging habitats in offshore waters.
    Comment 2: The total allowable catch (TAC) proposed for red grouper 
should be maintained at the current 6.56 million lb (2.97 million kg).
    Response: Projections from the most recent stock assessment 
indicate red grouper stock biomass will continue to increase with a 
7.57 million lb (3.43 million kg) TAC, although more slowly than if the 
6.56 million-lb (2.97 million-kg) TAC was selected. The 7.57 million-lb 
(3.43 million-kg) TAC represents a harvest at equilibrium optimum yield 
(OY). This alternative, consistent with national standard 1 of the 
Magnuson-Stevens Act, also accomplishes the Council's intent to manage 
all reef fish species at OY levels once a stock is rebuilt. After 
completion of the next red grouper stock assessment, red grouper TAC 
would be set equal to equilibrium OY, or to the yield at FOY (fishing 
mortality at OY), whichever is less.
    As noted in the previous response, the red grouper component of the 
Gulf reef fish fishery is supported by a strong 1999 year-class. In 
part, this strong recruitment affects the assessment projections, which 
indicate an increase in TAC allows the fishery to achieve OY, and these 
projections were certified as best available science by the NMFS 
Southeast Fishery Science Center (SEFSC). However, if the population is 
declining, as updated indices of abundance suggest (see previous 
response), then the assessment projections may be overly optimistic. 
However, the final rule sets ACLs and AMs for red grouper, which will 
minimize the chance of overfishing.
    Comment 3: Red grouper allocation should be shifted in favor of the 
recreational sector of the fishery because it has greater economic 
value.
    Response: NMFS and the Council recognize that determining 
allocations between the fishing sectors is a complex endeavor. 
Therefore, the Council established an Ad Hoc Allocation Committee 
(Committee) composed of Council members to examine fair and equitable 
ways to allocate Gulf resources between these sectors. The interim 
allocations contained in Amendment 30B will be in place until NMFS, 
through the recommendations of the Committee, can implement a separate 
amendment to allocate grouper resources between recreational and 
commercial sectors.
    Comment 4: Commercial grouper quotas fail to ensure other SWG 
species will be protected from over harvest. To be risk averse, a more 
conservative quota should be implemented.
    Response: The commercial SWG quotas contained in this final rule 
adjust the commercial red grouper quota, set a new commercial gag 
quota, and set an allowance for other SWGs (including black grouper, 
scamp, yellowfin grouper, rock hind, red hind, and yellowmouth 
grouper). The other SWG allowance of 0.41 million lb (0.19 million kg) 
contained in this rule uses the baseline years 2001-2004, which is the 
original baseline used in the gag stock assessment. Based on landings 
in recent years and regulatory changes with this final rule, NMFS 
anticipates the gag or red grouper quota will be met and the SWG 
component of the fishery closed prior to the other SWG allowance being 
met.
    Comment 5: Longline gear should not be allowed in the commercial 
reef fish fishery, or at least should be further restricted, either by 
restricting longlining to deeper depths or by restricting the use of 
bycatch as bait.
    Response: The intent of this final rule is to end overfishing of 
gag, revise red grouper management measures as a result of changes in 
the stock condition, establish ACLs and AMs for gag and red grouper, 
co-manage SWGs, and improve the effectiveness of Federal management

[[Page 17605]]

measures. Additional measures intended to constrain commercial harvest, 
including the restriction or elimination of certain gear types, may be 
considered in future actions. With regard to using bycatch as bait, 
current regulations prohibit the use of reef fish as bait with the 
exception of dwarf sand perch and sand perch.
    Comment 6: Different size limits, bag limits, and seasonal closures 
should be implemented in the recreational sector of the fishery. A 
higher bag limit is favored at the cost of an increased size limit, 
along with a longer seasonal closure, to achieve the required 
reductions in harvest.
    Response: NMFS agrees that there are numerous additional management 
options available to effectively manage the grouper resources of the 
Gulf of Mexico. However, NMFS cannot substitute or add to the measures 
proposed by the Council. The selected combination of harvesting 
restrictions for the recreational sector of the fishery is intended to 
provide fishing opportunities while minimizing the economic impacts of 
the fishery closure. The Council can always reconsider its management 
strategy, and NMFS encourages the public to be actively involved in the 
Council process and provide suggestions to the Council for their 
deliberation.
    Comment 7: The recreational and commercial closed seasons and size 
limits should be the same.
    Response: Although both the commercial and recreational seasonal 
closures were implemented to protect grouper, particularly gag, the 
rationale for continuing the closures and the effectiveness of these 
closures are different. The existing February 15 to March 15 commercial 
closed season for gag, black grouper, and red grouper was implemented 
in 2001 to protect spawning aggregations of gag during a portion of 
their peak spawning season, and to reduce fishing mortality of gag and 
red grouper. It was projected that the closed season would reduce 
commercial gag/black grouper harvest by 10 percent and red grouper 
harvest by 8 percent. However, a comparison of 1999-2000 data (when 
there was no closed season) with 2001 data (closed season in effect) 
showed the February through March contribution to the annual gag/black 
grouper and red grouper harvest reductions was only 2 percent when the 
closed season was in effect. This was likely a result of effort 
shifting to the weeks that were open at the beginning of February and 
the end of March. The recreational grouper closure from February 15 to 
March 15 was developed to reduce red grouper fishing mortality and 
prevent or minimize bycatch of gag and black grouper. The closure 
presently occurs simultaneously with the commercial grouper closure and 
includes important spawning seasons for gag, red grouper, and black 
grouper. The closure is estimated to reduce gag harvest by 
approximately 7.8 percent unless there is effort shifting to the open 
season by trips that would have occurred during the closed season. To 
achieve greater reductions in SWG fishing effort while allowing for an 
increase in the red grouper bag limit, the final rule extends the 
closed season from February 1 through March 31. In extending this 
closure, several factors were considered, such as required reductions 
in gag harvest levels, associated socio-economic effects on the 
recreational sector, possible increases in red grouper harvests, 
expected recreational season length, and the length and timing of the 
recreational SWG closure. The extended closure, in conjunction with 
other management measures, will reduce recreational gag landings by 26 
percent, and increase red grouper landings by 17 percent, while 
yielding a 306-day recreational season.
    Comment 8: Closing the recreational grouper component of the Gulf 
reef fish fishery from February 1 through March 31 will cause 
significant economic harm to southwestern Florida for-hire fisheries. 
The recreational grouper closure period should be changed to April 1 
through June 30 to protect spawning black grouper.
    Response: Several alternative SWG closed seasons were considered 
during the spring, summer, and fall, in conjunction with a 2-fish gag 
bag limit, 2-fish red grouper bag limit, and a 4-fish grouper aggregate 
bag limit. Each closure associated with the bag limits would achieve 
the needed reductions in gag harvest while allowing the harvest of red 
grouper to increase. The combination of a closed season with bag limits 
also reduces the adverse economic effects on the fishery, more so than 
if either a closed season or bag limit was used to control harvest 
exclusively. The spring seasonal closure was selected because it 
provided biological protections to SWG stocks while minimizing the time 
needed for the closure to be effective. This time period includes 
important spawning seasons for both gag and red grouper, as well as 
other SWGs such as scamp and black grouper. Prohibiting fishing during 
the spawning season will allow more fish to successfully spawn and 
reproduce before being harvested. Because landings of red grouper are 
highest during the summer in both the Florida Panhandle and along the 
West Florida Peninsula, more anglers would be affected by a summer 
closure than a closure during other times of the year. Fall and winter 
closures would need to be longer to be effective.
    With respect to black grouper, the best available science indicates 
this species is a winter and spring spawner. Therefore, a closure of 
February 1 through March 31 provides more protection of spawning black 
grouper than an April 1 through June 30 season.
    Comment 9: Bycatch is too high with current size and bag limits. 
New methods should be put into place to minimize bycatch.
    Response: Bycatch and bycatch mortality can negatively affect a 
stock by reducing the number of fish that survive to harvestable sizes. 
Fishery management regulations are intended to constrain effort and 
control fishing mortality, but in some cases increase bycatch or 
bycatch mortality. When proposing fishing regulations, managers must 
balance the competing objectives of maximizing yield, ending 
overfishing, and reducing bycatch to the extent practicable. Currently, 
for red grouper, dead discards account for 12 percent of the commercial 
sector's biomass removals and up to 14 percent of the recreational 
sector's removals. In the gag component of the fishery, dead discards 
account for an even greater percentage of the total biomass removed, 
including 10 percent for the commercial sector and as much as 23 
percent for the recreational sector, and the proportion of dead 
discards to landings has increased greatly in recent years.
    Measures to reduce bycatch were evaluated in a bycatch 
practicability analysis for Amendment 30B. This analysis concluded 
reducing the red grouper minimum size limit, especially in the 
commercial longline component of the fishery, is a practical option for 
reducing discards as long as landings are constrained by a quota or 
other management measures. For gag, lowering the minimum size limit in 
the recreational sector of the fishery would reduce bycatch, but this 
decrease would increase angler catch rates and require a longer closed 
season. The longer closed season would partially offset benefits 
resulting from the lower minimum size limit.
    Comment 10: The Federal consistency requirement for federally 
permitted vessels should not apply to species other than SWG species. 
This regulation preempts and interferes with a state's regulatory 
authority to manage its waters, discriminates against charter fishermen 
with Federal permits, and is unnecessary if more resources could be

[[Page 17606]]

dedicated to enforce permit requirements for those fishing in Federal 
waters.
    Response: Federal regulations assume that Gulf States will 
implement compatible Federal regulations. If states do not comply, then 
projected reductions in harvest and fishing mortality may not occur, 
compromising NMFS' ability to end overfishing and rebuild overfished 
stocks, which is required by the Magnuson-Stevens Act. Additionally, 
inconsistent regulations in state waters complicate law enforcement and 
may provide fishermen an incentive to harvest greater amounts of fish, 
regardless of where the fish are caught, which could result in harvest 
overages. If such overages were not prevented, more stringent Federal 
regulations would result in much larger adverse economic effects on 
federally permitted for-hire vessels, whether or not they also fish in 
state waters.
    Measures developed under an FMP amendment may apply to all species 
listed in the fishery management unit for that FMP as allowed by the 
Magnuson-Stevens Act. For example, a recent regulation intended to end 
red snapper overfishing and rebuild the red snapper stock also 
contained a gear requirement that applied to all reef fish fishing in 
Federal waters.
    There are several examples of regulations that apply to federally 
permitted reef fish vessels regardless of whether they fish in state or 
Federal waters. These include: Requiring a red snapper IFQ endorsement 
for a federally permitted commercial reef fish vessel to have red 
snapper onboard, regardless of where the fish were caught; prohibition 
of gag, red grouper, black grouper, and greater amberjack on board 
federally permitted commercial reef fish vessels during these species' 
respective closed seasons, regardless of where caught; and the 
requirement of an operating vessel monitoring system onboard federally 
permitted commercial reef fish vessels at all times.
    This measure may give rise to certain complications regarding the 
ability of some vessels to compete with other vessels when fishing in 
state waters if state and Federal regulations are not compatible. 
Federally permitted vessels would likely have a competitive advantage 
over vessels with state permits because they can fish in both Federal 
and state waters. Conversely, operators of permitted for-hire vessels 
may be disadvantaged against private vessels and non-federally 
permitted for-hire vessels when fishing for grouper species in state 
waters. This measure does not preclude the operator from fishing in 
state waters under state regulations if different from Federal 
regulations. To do so, the vessel owner would have the choice of no 
longer maintaining his or her permit. Under these scenarios, the vessel 
owner would no longer have a Federal permit, and he or she could abide 
by state regulations in state waters. However, the vessel owner also 
would not be able to conduct activities in Federal waters allowed by 
his or her Federal reef fish permit.
    When there are less restrictive regulations in state waters, the 
effectiveness of the Federal regulations is diminished and the ability 
to enforce regulations is more difficult. The purpose of this measure 
is to improve compliance with Federal management regulations for 
federally permitted commercial and for-hire reef fish vessels, 
particularly for stocks that are undergoing overfishing or are being 
rebuilt. When regulations differ between jurisdictions, it is more 
difficult to coordinate enforcement activities. Regulations are 
enforced through actions of NMFS Office for Law Enforcement, the United 
States Coast Guard, and various state authorities. To maximize the use 
of assets to enforce state and Federal management measures Federal and 
state enforcement agencies have developed cooperative agreements to 
enforce the Magnuson-Stevens Act.

Changes from the Proposed Rule

    This final rule does not include the measures to implement a new 
seasonal/area closure called the Edges, as contained in the proposed 
rule published on November 18, 2008 (73 FR 68390). The proposed rule 
inadvertently included a provision regarding the Edges seasonal/area 
closure that was not contained in Amendment 30B. The Edges seasonal/
area closure will be implemented through separate additional 
rulemaking.

Classification

    The Administrator, Southeast Region, NMFS, determined that 
Amendment 30B is necessary for the conservation and management of gag 
and red grouper in the Gulf of Mexico and that it is consistent with 
the Magnuson-Stevens Act, and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an FEIS for this amendment. A notice of availability 
for the FEIS was published on October 24, 2008 (73 FR 63470).
    An FRFA was prepared. The FRFA incorporates the initial regulatory 
flexibility analysis, 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.
    Several comments opposed requiring vessels with Federal permits to 
follow the more restrictive of Federal or state regulations when 
fishing in state waters. The comments stated that this regulation would 
discriminate against federally permitted for-hire vessels and would 
place these vessels at a competitive disadvantage against vessels that 
possessed only state permits. While this rule would require adherence 
to the more restrictive measures by federally permitted vessels, this 
measure is expected to help prevent harvest overages, particularly for 
species that are overfished or undergoing overfishing. If such overages 
were not prevented, more stringent Federal regulations would 
subsequently be required, resulting in much larger adverse economic 
effects for all federally permitted for-hire vessels, regardless of 
where they fish. It should also be noted that, even under the final 
rule, federally permitted vessels may be able to maintain a competitive 
advantage over vessels that only possess state permits because of the 
flexibility to fish in both Federal and state waters.
    Several comments opposed the February 1 through March 31 closure of 
the recreational grouper component of the Gulf reef fish fishery 
closure because it would cause significant economic harm to 
southwestern Florida for-hire fisheries. The commenters proposed other 
closure periods would be more appropriate. Different combinations of 
bag limits and seasonal closures were considered to control the 
recreational harvests to the target levels because bag limits alone or 
seasonal closures alone were projected to either fail to achieve the 
target recreational harvests or result in larger adverse economic 
effects than the measures contained in the final rule. NMFS concurs 
with the Council's choice of bag limits and the February 1 through 
March 31 seasonal closure as the appropriate combination of measures to 
achieve the target recreational harvest while limiting the adverse 
economic effects.
    One comment indicated the red grouper allocation should be shifted 
in favor of the recreational sector of the fishery because that sector 
has greater economic value. An allocation change can benefit one 
sector, however, it is generally at the expense of the other sector. 
The underlying economic principle when changing allocations is not 
whether one sector has greater economic value than the other sector,

[[Page 17607]]

but whether the increase in value to one sector as a result of a re-
allocation is sufficient to compensate for the reduction in value to 
the other sector. An analysis of this type requires determining the 
value for red grouper to both the commercial and recreational sectors. 
The SEFSC has begun conducting this type of study for red grouper and 
other species. However, this work has not been completed. When the 
final results of this work are available, the information will be 
provided to the Council for consideration in addressing allocation 
issues for red grouper and other Gulf species.
    No changes in the final rule were made in response to public 
comments on the proposed rule.
    The final rule is expected to directly affect vessels that operate 
in the Gulf of Mexico commercial reef fish fishery and for-hire reef 
fish fisheries. The Small Business Administration (SBA) has established 
size criteria for all major industry sectors in the U.S. including fish 
harvesters, for-hire operations, fish processors, and fish dealers. 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 affiliated operations worldwide. For for-hire 
operations, the other qualifiers apply and the annual receipts 
threshold is $7 million (NAICS code 713990, recreational industries).
    A Federal commercial reef fish permit is required to operate in the 
Gulf of Mexico commercial reef fish fishery, and a moratorium on the 
issuance of new permits has been in effect since 1992. A total of 1,209 
vessels with commercial reef fish permits is estimated to comprise the 
universe of commercial harvest operations in the fishery. For the 
period 2001-2006, an average of 631 vessels harvested varying amounts 
of gag, 732 vessels harvested varying amounts of red grouper, and 888 
vessels harvested varying amounts of SWG. These numbers are not 
additive because some of these vessels harvested a combination of 
grouper species. The SWG complex includes red grouper and gag, 
therefore there is substantial overlap in harvest of grouper species 
among these vessels.
    The annual average gross revenue and net income per vessel for 
vessels in the SWG fishery is unknown. For all vessels in the 
commercial reef fish fishery, the average annual gross revenue, 
respectively, for vertical line vessels is estimated to range from 
approximately $24,100 (2005 dollars; $6,800 net income) to $110,100 
($28,500 net income), while the values for bottom longline vessels are 
approximately $87,600 (2005 dollars; $15,000 net income) to $117,000 
($25,500 net income). Some fleet behavior is known to exist in the 
commercial reef fish fishery, but the extent of such is unknown, though 
the maximum number of permits reported to be owned by the same entity 
is six. Additional permits in this and other fisheries (and associated 
revenues) may be linked through affiliation rules but these links 
cannot be made using existing data. Nevertheless, based on the average 
annual gross revenue information for all commercial reef fish vessels, 
NMFS determines, for the purpose of this analysis, that all commercial 
reef fish entities potentially affected by this final rule are small 
business entities.
    An estimated 1,692 vessels are permitted to operate in the Gulf of 
Mexico reef fish for-hire fishery. It is unknown how many of these 
vessels operate as headboats or charterboats, a distinction which is 
based on pricing behavior, and individual vessels may operate as both 
types of operations at different times. However, 76 vessels participate 
in the Federal headboat logbook program. Several entities own multiple 
for-hire permits, and at least one entity is believed to own as many as 
12 permits.
    The average charterboat is estimated to generate approximately 
$77,000 (2005 dollars) in annual revenues, while the comparable figure 
for an average headboat is approximately $404,000 (2005 dollars). Based 
on the average annual gross revenue information for these vessels, NMFS 
determines, for the purpose of this analysis, that all for-hire 
entities potentially affected by this final rule are small business 
entities.
    Relative to the baseline consisting of all no action alternatives, 
the final action would reduce the net operating revenues of commercial 
vessels by $5.3 million (in 2005 dollars) over the period 2008-2013. It 
would be equivalent to an annual loss of $0.88 million. If this loss 
were equally shared by all 888 vessels landing any species of SWG, the 
loss per vessel would be $991 annually. Of the 888 vessels landing any 
grouper species during the period 2001-2006, 114 vessels landed less 
than 100 lb (45.4 kg), 232 vessels landed between 100 and 1,000 lb (454 
kg), 229 vessels landed between 1,000 lb and 5,000 lb (2,270 kg), 271 
vessels landed between 5,000 lb and 50,000 lb (22,700 kg), and 42 
vessels landed more than 50,000 lb. Although the estimated reduction in 
net operating income could be accommodated by the 42 highest and even 
271 next highest volume vessels, it could be quite burdensome to 
others, particularly the 114 lowest volume vessels.
    Although for-hire vessels do not derive revenues from grouper 
sales, most vessels target these species at some time during the year. 
Assuming angler demand declines in response to the restrictions for 
these species, revenue and profit reductions can be projected. As a 
result of the final action on grouper, the for-hire sector is projected 
to experience a loss in net income of approximately $405,000 to 
$794,000 per year. If these losses were distributed equally across all 
the 1,692 for-hire vessels in the fishery, the resulting loss per 
vessel would be between $239 and $469 per vessel. Some for-hire 
vessels, such as those in Florida, are likely more dependent on grouper 
than other vessels due to where they fish and client preferences and 
thus may be more severely affected by the final action.
    Three alternatives, including no action, were considered for the 
action in Amendment 30 to set thresholds and benchmarks for gag. The 
first alternative (no action) to the final action would not comply with 
the Sustainable Fisheries Act requirement to establish more 
scientifically-based thresholds and benchmarks. The other alternative 
to the final action would provide a less conservative proxy for maximum 
sustainable yield (MSY), and would likely result in catch levels in 
excess of the true MSY. Each of the alternatives, including the final 
action, would not have direct impacts on small entities, but would 
serve as a platform for the development of specific management 
measures.
    Five alternatives, including no action, were considered for the 
action in Amendment 30 to set gag TACs. The first alternative (no 
action) to the final action would not provide for a gag TAC, and thus 
would allow continued overfishing of the stock. The second alternative 
to the final action uses a stepped approach to managing TAC levels by 
setting TAC at 3-year intervals. This alternative, however, is likely 
to result in management measures that could create overages in years 2 
and 3 of the interval. It could thus trigger AMs that would have 
potentially larger adverse impacts on small entities. The third 
alternative to the final action is similar to the final action, but it 
would set fishing mortality rate right at the threshold. This is more 
likely to generate overfishing situations that would only require more 
stringent regulations. The fourth alternative to the final action is 
similar to the second

[[Page 17608]]

alternative and thus would be saddled with similar problems. In 
addition, it is also susceptible to providing management measures that 
would result in overages in years 2 and 3 of each interval, setting the 
stage for application of AMs.
    Three alternatives, including no action, were considered for the 
action in Amendment 30 to set a red grouper TAC. The first alternative 
(no action) to the final action would retain the red grouper TAC at 
6.56 million lb (2.98 million kg). The final red grouper TAC of 7.57 
million lb (3.43 million kg) would provide more benefits to small 
entities than the no action alternative. The second alternative to the 
final action would set a higher TAC of 7.72 million lb (3.50 million 
kg) corresponding to fishing at equilibrium FMSY (the fishing mortality 
rate that produces MSY) as opposed to equilibrium FOY (the fishing 
mortality that produces OY) in the final action. Although this higher 
TAC would be more beneficial to small entities, it is right at the 
threshold when AMs would set in. This higher TAC, then, would place at 
higher probability the imposition of stringent management measures that 
would essentially undo the initial benefits received by small entities.
    Three alternatives, including no action, were considered for the 
action to set gag and red grouper allocations. The first alternative 
(no action) to the final action would revert the 
recreational:commercial allocation to that of Amendment 1 65:35 for gag 
and 23:77 for red grouper. The second alternative to the final action 
would set the recreational:commercial allocation at 59:41 for gag and 
24:76 for red grouper. It should be noted that under the final action, 
the recreational:commercial allocation would be 61:39 for gag and 24:76 
for red grouper. The general nature of any allocation is that it would 
favor one group of small entities at the expense of another group of 
small entities. The Council's choice for the final action considered 
the longest and most robust time series of data compared to the other 
alternatives.
    Five alternatives, including no action, were considered to set SWG 
ACLs and AMs. The first alternative (no action) to the final action 
would not provide for ACLs and AMs. By not specifying AMs, harvests 
could likely exceed target catch levels and would thereby reduce the 
likelihood overfishing would be ended or prevented. The second 
alternative to the final action would have identical target catches as 
the final action but would set the ACLs lower than those of the final 
action. It would then likely result in potentially more adverse impacts 
on small entities. The third alternative to the final action would set 
the same commercial target catches as, but some higher ACLs than, the 
final action. This alternative would set higher recreational target 
catches and ACLs for gag than the final action, but would set the same 
target catches and ACLs for red grouper. On average, this alternative 
would result in lower adverse impacts on small entities than the final 
action. The fourth alternative to the final action would set the same 
target catches as, but lower ACLs than, the final action. It may then 
be expected to result in higher adverse impacts on small entities than 
the final action.
    Four alternatives, including no action, were considered for the 
action to set gag, red grouper, and SWG quotas. The first alternative 
(no action) to the final action would maintain the red grouper and SWG 
quotas. Although this alternative would potentially allow the largest 
SWG quota, it would not provide specific protection to gag so that 
overfishing of this stock would continue. In addition, it would not 
provide flexibility to increase the red grouper quota due to stock 
improvements. The second alternative to the final action would be 
similar to the final action, except that the final action would provide 
for a higher quota for other SWG. Hence, small entities would operate 
in a better economic environment under the final action.
    Four alternatives, including no action, were considered for the 
action on commercial quota closures. The first alternative (no action) 
to the final action would maintain the red grouper or SWG quota, 
whichever comes first, as a trigger to close the SWG fishery. Given all 
preferred alternatives for all other actions, this alternative would 
provide the largest benefits to small entities. However, it would not 
provide sufficient protection to gag so that overfishing of the stock 
could continue. The second alternative to the final action would add 
the gag quota as a closure trigger. With the gag quota most likely to 
be met first, the entire SWG fishery would close early in the year. 
This alternative would yield the largest negative effects on small 
entities. The third alternative to the final action is similar to the 
second, except that it would impose gag trip limits at the start of the 
fishing year. This alternative would allow the SWG fishery to remain 
open much longer than the second alternative so that it would result in 
less adverse impact on small entities. The third alternative differs 
from the final action, which would impose the incidental harvest trip 
limit only when 80 percent of the gag or red grouper quota is reached. 
Due to the generally longer closure under the final action, the third 
alternative would turn out to result in less adverse economic impact on 
small entities. The third alternative, however, would impose more 
adverse effects on the gag component of the fishery so that in general 
it would adversely affect hook-and-line vessel trips more than longline 
trips. The opposite would generally occur under the final action.
    Seven alternatives, including no action, were considered for the 
action on measures to control the recreational harvests of gag and red 
grouper. The first alternative (no action) to the final action would 
maintain current recreational regulations so that it would likely allow 
overfishing of gag to continue. All other alternatives to the final 
action would eliminate the recreational red grouper bag limit, 
establish a gag grouper bag limit (except one alternative), establish a 
recreational closure, and reduce the aggregate grouper bag limit to 3 
fish. These other alternatives would reduce gag harvest by a greater 
amount than the final action and either increase red grouper harvest 
(three alternatives) or reduce red grouper harvest (two alternatives), 
relative to the final action. These alternatives would be expected to, 
therefore, result in greater adverse economic impacts than the final 
action.
    Three alternatives, including no action, were considered for the 
action on reducing the discard mortality of groupers. The first 
alternative (no action) to the final action would not require any new 
equipment or implement new measures to reduce bycatch, and would retain 
the size limit for grouper species subject to size limits. This would 
not address the bycatch problem in the grouper component of the 
fishery. The second alternative would require pamphlets or placards 
providing instructions on venting, proper handling, and release 
methods. The presence of these pamphlets or placards on board would 
provide convenient resource materials for reducing bycatch mortality, 
but the extent of their effects cannot be determined. The final action, 
on the other hand, would reduce the size limit for red grouper, reduce 
bycatch mortality, and contribute to further stock rebuilding and thus 
may be expected to result in positive effects on small entities.
    Four alternatives were considered for the action pertaining to the 
duration of time/area closures and marine reserves. As noted in the 
Changes from the

[[Page 17609]]

Proposed Rule section of this rule, the Edges seasonal-area closure is 
not included in this final rule and will be implemented via separate 
rulemaking. Three of these alternatives, including no action, were 
specific to time/area closures. The fourth alternative, with three sub-
options inclusive of no action, directly addressed the two existing 
marine reserves. With respect to time/area closures, two alternatives 
to the final action would set specific expiration dates. These 
alternatives would have about similar effects as the final action, 
particularly considering the ability and history of the Council in 
changing time/area closure regulations. With respect to the duration of 
the two existing marine reserves, two alternatives to the final action 
would allow the reserves to expire within a certain number of years. 
These two alternatives would provide relatively inadequate time for 
full evaluation of the effectiveness of the existing marine reserves, 
as compared to the final action.
    Two alternatives, including no action, were considered for the 
action on Federal regulatory compliance. The first alternative (no 
action) to the final action would retain any existing inconsistencies 
between state and Federal regulations in state waters for operators of 
vessels with Federal reef fish permits. This would be particularly 
problematic for species considered overfished or undergoing 
overfishing, that have relatively substantial presence in state waters. 
Although in this case, the no action alternative would provide better 
economic prospects for small entities in the short run, the long-run 
sustainability of the fishery and economic benefits derivable from the 
fishery would be jeopardized.

List of Subjects in 50 CFR Part 622

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

    Dated: April 13, 2009.
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.

0
2. In Sec.  622.2, the definitions of ``Deep-water grouper (DWG)'' and 
``Shallow-water grouper (SWG)'' are added in alphabetical order to read 
as follows:


Sec.  622.2  Definitions and acronyms.

* * * * *
    Deep-water grouper (DWG) means yellowedge grouper, misty grouper, 
warsaw grouper, snowy grouper, and speckled hind. After the shallow-
water grouper (SWG) commercial quota is reached, as specified in Sec.  
622.42(a)(1)(iii), scamp is also considered a DWG for purposes of the 
commercial fishery.
* * * * *
    Shallow-water grouper (SWG) means gag, red grouper, black grouper, 
scamp, yellowfin grouper, rock hind, red hind, and yellowmouth grouper. 
However, after the SWG commercial quota is reached, as specified in 
Sec.  622.42(a)(1)(iii), scamp is considered a DWG for the commercial 
fishery only.
* * * * *

0
3. In Sec.  622.4, the suspension of paragraph (a)(2)(v) is lifted; 
paragraph (a)(2)(xiv) is removed, and paragraphs (a)(1)(iv) and 
(a)(2)(v) are revised to read as follows:


Sec.  622.4  Permits and fees.

    (a) * * *
    (1) * * *
    (iv) If Federal regulations for Gulf reef fish in subparts A, B, or 
C of this part are more restrictive than state regulations, a person 
aboard a charter vessel or headboat for which a charter vessel/headboat 
permit for Gulf reef fish has been issued must comply with such Federal 
regulations regardless of where the fish are harvested.
    (2) * * *
    (v) Gulf reef fish. For a person aboard a vessel to be eligible for 
exemption from the bag limits, to fish under a quota, as specified in 
Sec.  622.42(a)(1), or to sell Gulf reef fish in or from the Gulf EEZ, 
a commercial vessel permit for Gulf reef fish must have been issued to 
the vessel and must be on board. If Federal regulations for Gulf reef 
fish in subparts A, B, or C of this part are more restrictive than 
state regulations, a person aboard a vessel for which a commercial 
vessel permit for Gulf reef fish has been issued must comply with such 
Federal regulations regardless of where the fish are harvested. See 
paragraph (a)(2)(ix) of this section regarding an additional IFQ vessel 
endorsement required to fish for, possess, or land Gulf red snapper. To 
obtain or renew a commercial vessel permit for Gulf reef fish, more 
than 50 percent of the applicant's earned income must have been derived 
from commercial fishing (i.e., harvest and first sale of fish) or from 
charter fishing during either of the 2 calendar years preceding the 
application. See paragraph (m) of this section regarding a limited 
access system for commercial vessel permits for Gulf reef fish and 
limited exceptions to the earned income requirement for a permit.
* * * * *

0
4. In Sec.  622.34, paragraph (k)(1)(iii) is removed and reserved; 
paragraph (o) is removed and reserved; the suspension of paragraph (u) 
is lifted; paragraphs (v) and (w) are removed; and paragraph (u) is 
revised to read as follows:
* * * * *


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

* * * * *
    (u) Seasonal closure of the recreational fishery for shallow-water 
grouper (SWG). The recreational fishery for SWG, in or from the Gulf 
EEZ, is closed from February 1 through March 31, each year. During the 
closure, the bag and possession limit for SWG in or from the Gulf EEZ 
is zero.

0
5. In Sec.  622.37, paragraph (d)(2)(ii) is revised and paragraph 
(d)(2)(iv) is added to read as follows:


Sec.  622.37  Size limits.

* * * * *
    (d) * * *
    (2) * * *
    (ii) Yellowfin grouper--20 inches (50.8 cm), TL.
* * * * *
    (iv) Red grouper--(A) For a person not subject to the bag limit 
specified in Sec.  622.39 (b)(1)(ii)--18 inches (45.7 cm), TL.
    (B) For a person subject to the bag limit specified in Sec.  
622.39(b)(1)(ii)--20 inches (50.8 cm), TL.
* * * * *

0
6. In Sec.  622.39, the suspension of paragraphs (b)(1)(ii) and (v) is 
lifted; paragraphs (b)(1)(viii) and (b)(1)(ix) are removed, and the 
first sentence of paragraph (b)(1)(ii) is revised to read as follows:


Sec.  622.39  Bag and possession limits.

* * * * *
    (b) * * *
    (1) * * *
    (ii) Groupers, combined, excluding goliath grouper and Nassau 
grouper--4 per person per day, but not to exceed 1 speckled hind or 1 
warsaw grouper per vessel per day, or 2 gag or 2 red grouper per person 
per day. * * *
* * * * *

[[Page 17610]]


0
7. In Sec.  622.42, paragraph (a)(1)(vii) is removed, and paragraphs 
(a)(1)(ii) and (iii) are revised to read as follows:


Sec.  622.42  Quotas.

* * * * *
    (a) * * *
    (1) * * *
    (ii) Deep-water groupers (DWG) and, after the quota for SWG is 
reached, scamp, combined--1.02 million lb (0.46 million kg), gutted 
weight, that is, eviscerated but otherwise whole.
    (iii) Shallow-water groupers (SWG), including scamp before the 
quota for SWG is reached, have a combined quota as specified in 
paragraph (a)(1)(iii)(A) of this section. Within the SWG quota there 
are separate quotas for gag and red grouper as specified in paragraphs 
(a)(1)(iii)(B) and (C) of this section, respectively. The quotas 
specified in paragraphs (a)(1)(iii)(A) through (C) of this section are 
all in gutted weight, that is eviscerated but otherwise whole.
    (A) SWG combined. (1) For fishing year 2009--7.48 million lb (3.39 
million kg).
    (2) For fishing year 2010--7.57 million lb (3.43 million kg).
    (3) For fishing year 2011 and subsequent fishing years--7.65 
million lb (3.47 million kg).
    (B) Gag. (1) For fishing year 2009--1.32 million lb (0.60 million 
kg).
    (2) For fishing year 2010--1.41 million lb (0.64 million kg).
    (3) For fishing year 2011 and subsequent fishing years--1.49 
million lb (0.68 million kg).
    (C) Red grouper--5.75 million lb (2.61 million kg).
* * * * *

0
8. In Sec.  622.44, paragraph (g) is revised and paragraph (h) is added 
to read as follows:


Sec.  622.44  Commercial trip limits.

* * * * *
    (g) Gulf deep-water grouper (DWG) and shallow-water grouper (SWG), 
combined. For vessels operating under the quotas specified in Sec.  
622.42(a)(1)(ii) or (a)(1)(iii), the trip limit for DWG and SWG 
combined is 6,000 lb (2,722 kg), gutted weight. However, when the 
quotas specified in Sec.  622.42(a)(1)(ii) or (a)(1)(iii) are reached 
and the respective fishery is closed, the commercial trip limit for the 
species subject to the closure is zero.
    (h) Gulf gag and red grouper. For vessels operating under the quota 
specifications in Sec.  622.42(a)(1)(iii)(B) or (a)(1)(iii)(C), once 80 
percent of either the gag or red grouper quota is reached, or projected 
to be reached, and the quota for the applicable species is projected to 
be reached prior to the end of the fishing year, the AA will file a 
notification with the Office of the Federal Register to implement a 
trip limit for the applicable species of 200 lb (90.7 kg), gutted 
weight. However, when the SWG, gag, or red grouper quota as specified 
in Sec.  622.42(a)(1)(iii)(A), (B), or (C), respectively, is reached, 
or projected to be reached, the commercial trip limit for the species 
subject to the closure is zero.

0
9. In Sec.  622.49, paragraphs (a)(3) through (a)(5) are added to read 
as follows:


Sec.  622.49  Accountability measures.

    (a) * * *
    (3) Shallow-water grouper (SWG) combined. (i) Commercial fishery. 
If either gag, red grouper, or SWG commercial landings, as estimated by 
the SRD, reach or are projected to reach the applicable quota specified 
in Sec.  622.42(a)(1)(iii), the AA will file a notification with the 
Office of the Federal Register to close the entire SWG commercial 
fishery for the remainder of the fishing year. In addition, if despite 
such closure, SWG commercial landings exceed the applicable ACL as 
specified in this paragraph (a)(3)(i), the AA will file a notification 
with the Office of the Federal Register, at or near the beginning of 
the following fishing year, to maintain the SWG commercial quota for 
that following year at the level of the prior year's quota. The 
applicable commercial ACLs for SWG, in gutted weight, are 7.94 million 
lb (3.60 million kg) for 2009, 7.99 million lb (3.62 million kg) for 
2010, and 8.04 million lb (3.65 million kg) for 2011 and subsequent 
fishing years.
    (ii) [Reserved]
    (4) Gag. (i) Commercial fishery. If gag commercial landings, as 
estimated by the SRD, reach or are projected to reach the applicable 
quota specified in Sec.  622.42(a)(1)(iii)(B), the AA will file a 
notification with the Office of the Federal Register to close the SWG 
commercial fishery for the remainder of the fishing year. In addition, 
if despite such closure, gag commercial landings exceed the applicable 
ACL as specified in this paragraph (a)(4)(i), the AA will file a 
notification with the Office of the Federal Register, at or near the 
beginning of the following fishing year, to maintain the gag commercial 
quota for that following year at the level of the prior year's quota. 
The applicable commercial ACLs for gag, in gutted weight, are 1.66 
million lb (0.75 million kg) for 2009, 1.71 million lb (0.78 million 
kg) for 2010, and 1.76 million lb (0.80 million kg) for 2011 and 
subsequent fishing years.
    (ii) Recreational fishery. If gag recreational landings, as 
estimated by the SRD, exceed the applicable ACL specified in this 
paragraph (a)(4)(ii), the AA will file a notification with the Office 
of the Federal Register, at or near the beginning of the following 
fishing year, to maintain the gag target catch level for that following 
year at the level of the prior year's target catch. In addition, the 
notification will reduce the length of the recreational SWG fishing 
season the following fishing year by the amount necessary to ensure gag 
recreational landings do not exceed the recreational target catch level 
in that following fishing year. The applicable recreational ACLs for 
gag, in gutted weight, are 2.59 million lb (1.17 million kg) for 2009, 
2.64 million lb (1.20 million kg) for 2010, and 2.67 million lb (1.21 
million kg) for 2011 and subsequent fishing years. The recreational 
target catch levels for gag, in gutted weight, are 2.06 million lb 
(0.93 million kg) for 2009, 2.14 million lb (0.97 million kg) for 2010, 
and 2.20 million lb (1.00 million kg) for 2011 and subsequent fishing 
years. Recreational landings will be evaluated relative to the 
applicable ACL as follows. For 2009, only 2009 recreational landings 
will be compared to the ACL; in 2010, the average of 2009 and 2010 
recreational landings will be compared to the ACL; and in 2011 and 
subsequent fishing years, the 3-year running average recreational 
landings will be compared to the ACL.
    (5) Red grouper. (i) Commercial fishery. If red grouper commercial 
landings, as estimated by the SRD, reach or are projected to reach the 
applicable quota specified in Sec.  622.42(a)(1)(iii)(C), the AA will 
file a notification with the Office of the Federal Register to close 
the SWG commercial fishery for the remainder of the fishing year. In 
addition, if despite such closure, red grouper commercial landings 
exceed the ACL, 5.87 million lb (2.66 million kg) gutted weight, the AA 
will file a notification with the Office of the Federal Register, at or 
near the beginning of the following fishing year, to maintain the red 
grouper commercial quota for that following year at the level of the 
prior year's quota.
    (ii) Recreational fishery. If red grouper recreational landings, as 
estimated by the SRD, exceed the applicable ACL specified in this 
paragraph (a)(5)(ii), the AA will file a notification with the Office 
of the Federal Register, at or near the beginning of the following 
fishing year, to maintain the red grouper target catch level for that 
following year at the level of the prior year's target catch. In 
addition, the notification will reduce

[[Page 17611]]

the length of the recreational SWG fishing season the following fishing 
year by the amount necessary to ensure red grouper recreational 
landings do not exceed the recreational target catch level the 
following fishing year. The recreational ACL for red grouper, in gutted 
weight, is 1.85 million lb (0.84 million kg). The recreational target 
catch level for red grouper, in gutted weight, is 1.82 million lb (0.82 
million kg). Recreational landings will be evaluated relative to the 
applicable ACL as follows. For 2009, only 2009 recreational landings 
will be compared to the ACL; in 2010, the average of 2009 and 2010 
recreational landings will be compared to the ACL; and in 2011 and 
subsequent fishing years, the 3-year running average recreational 
landings will be compared to the ACL.
* * * * *
[FR Doc. E9-8764 Filed 4-15-09; 8:45 am]
BILLING CODE 3510-22-S