Rule2023-09336
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Resources of the Gulf of Mexico; Temporary Measures To Reduce Overfishing of Gag
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 3, 2023
Effective
May 3, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
This final temporary rule implements interim measures to reduce overfishing of gag in Federal waters of the Gulf of Mexico (Gulf). This final temporary rule reduces the 2023 commercial and recreational sector harvest levels for gag and changes the 2023 recreational fishing season for gag in Federal waters of the Gulf. This temporary rule is effective for 180 days, but NMFS may extend the interim measures for a maximum of an additional 186 days. The purpose of this temporary rule is to reduce overfishing of gag while the long- term management measures are developed.
Full Text
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[Federal Register Volume 88, Number 85 (Wednesday, May 3, 2023)]
[Rules and Regulations]
[Pages 27701-27709]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-09336]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 230427-0115]
RIN 0648-BL89
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Reef Fish Resources of the Gulf of Mexico; Temporary Measures To Reduce
Overfishing of Gag
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final temporary rule.
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SUMMARY: This final temporary rule implements interim measures to
reduce overfishing of gag in Federal waters of the Gulf of Mexico
(Gulf). This final temporary rule reduces the 2023 commercial and
recreational sector harvest levels for gag and changes the 2023
recreational fishing season for gag in Federal waters of the Gulf. This
temporary rule is effective for 180 days, but NMFS may extend the
interim measures for a maximum of an additional 186 days. The purpose
of this temporary rule is to reduce overfishing of gag while the long-
term management measures are developed.
DATES: This final temporary rule is effective from May 3, 2023, until
October 30, 2023.
ADDRESSES: An electronic copy of the environmental assessment (EA)
supporting these interim measures may be obtained from the Southeast
Regional Office website at <a href="https://www.fisheries.noaa.gov/action/interim-action-reduce-overfishing-gag-gulf-mexico">https://www.fisheries.noaa.gov/action/interim-action-reduce-overfishing-gag-gulf-mexico</a>. The EA includes a
regulatory impact review and a Regulatory Flexibility Act (RFA)
analysis.
FOR FURTHER INFORMATION CONTACT: Dan Luers, NMFS Southeast Regional
Office, telephone: 727-824-5305, or email: <a href="/cdn-cgi/l/email-protection#3256535c5b575e1c5e47574041725c5d53531c555d44"><span class="__cf_email__" data-cfemail="85e1e4ebece0e9abe9f0e0f7f6c5ebeae4e4abe2eaf3">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: The reef fish fishery in the Gulf is managed
under the Fishery Management Plan for the Reef Fish Resources of the
Gulf of Mexico (FMP) and includes gag and 30 other managed reef fish
species. The FMP was prepared by the Gulf of Mexico Fishery Management
Council (Council) and is implemented by NMFS through regulations at 50
CFR part 622 under authority of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act).
On February 3, 2023, NMFS published a proposed temporary rule in
the Federal Register and requested public comment (88 FR 7388). The
proposed temporary rule and EA outline the rationale for the actions
contained in this final temporary rule, and the EA is available from
NMFS (see ADDRESSES
[[Page 27702]]
section). A summary of the management measures described in the EA and
implemented by this temporary rule is provided below.
All weights described in this temporary rule are in gutted weight.
Gulf gag is harvested by the commercial and recreational sectors,
with 39 percent of the total annual catch limit (ACL) allocated to the
commercial sector and 61 percent allocated to the recreational sector.
The gag stock was assessed in 2021 through the Southeast Data,
Assessment, and Review (SEDAR) stock assessment process (SEDAR 72), and
was determined to be overfished and undergoing overfishing. SEDAR 72
incorporated several modified data inputs from the previous gag stock
assessment, including recreational catch and effort data generated by
the Marine Recreational Information Program (MRIP) using the Fishing
Effort Survey (FES; MRIP-FES). The MRIP-FES fully replaced the MRIP
Coastal Household Telephone Survey (CHTS) in 2018. MRIP-FES generally
estimates higher recreational effort, and thus higher recreational
landings, than MRIP-CHTS. The recreational catch limits in this
temporary rule are not directly comparable to the previous recreational
catch limits because of the change from MRIP-CHTS to MRIP-FES to
estimate recreational landings.
SEDAR 72 also accounted for observations of red tide mortality,
since gag is vulnerable to red tide events and was negatively affected
by these disturbances in 2005, 2014, 2018, and projected for 2021
directly within the stock assessment model. Lastly, modeling changes
were made in SEDAR 72 to better quantify commercial discards by taking
into account the potential misidentification between black grouper and
gag, which are similar looking species, and to improve size estimates
of gag retained by commercial and for-hire fishermen, and private
anglers.
In November 2021, the Council's Scientific and Statistical
Committee (SSC) reviewed SEDAR 72 and found it to be the best
scientific information available for informing fisheries management. On
January 26, 2022, NMFS notified the Council that gag was overfished and
undergoing overfishing, and that measures to rebuild the stock and end
overfishing must be implemented within 2 years, i.e., by January 26,
2024. In response, the Council began work on Amendment 56 to the FMP.
However, because the management measures in Amendment 56 are not
expected to be effective until the 2024 fishing year, the Council
requested that NMFS implement interim measures to reduce overfishing of
gag during the 2023 fishing year. Specifically, the Council requested
that NMFS implement reduced catch levels for gag using the current
sector allocations of the total ACL, and that NMFS move the start of
the gag recreational fishing season.
Management Measures Contained in This Final Temporary Rule
During the effectiveness of this temporary rule, the total ACL for
gag is 661,901 lb (300,233 kg). This temporary rule also specifies the
commercial and recreational sector ACLs and component commercial quotas
using the existing sector allocations of the total ACL of 39 percent
commercial and 61 percent recreational. The commercial ACL and
commercial quota are 258,000 lb (117,027 kg) and 199,000 lb (90,265
kg), respectively. The recreational ACL is 403,759 lb (183,142 kg), and
the recreational annual catch target (ACT) is 362,374 lb (164,370 kg).
The reduced catch limits requested by the Council are based on a
rebuilding time that is equal to twice the time necessary to rebuild
the stock if fishing mortality was reduced to zero, which is one of the
rebuilding times considered in Amendment 56.
Although the Council requested a commercial ACL of 258,142 lb
(117,091 kg) and commercial quota of 199,157 lb (90,336 kg) for 2023,
the analyses conducted by NMFS supporting the implementation of interim
measures use a commercial ACL and quota rounded to the nearest thousand
pounds, as noted above. NMFS used the rounded numbers because they are
consistent with the numerical format of the current gag commercial
catch limits and the Council did not consider whether this practice
should be continued for the purpose of the interim commercial catch
limits. NMFS expects the Council to clearly articulate in Amendment 56
whether the commercial catch limits for gag should continue to be
rounded to the nearest thousand pounds.
Because the commercial sector relies on the Individual Fishing
Quota program for groupers and tilefishes (GT-IFQ program) that
distributes commercial quota to shareholders for the entire fishing
year, no change to the commercial fishing season would occur under this
temporary rule. Further, the Council did not recommend interim
modifications to the commercial sector's IFQ multi-use provision for
gag and red grouper. Therefore, the gag and red grouper multi-use
allocation will be available as specified in 50 CFR 622.22(a)(5).
In addition to the reduced gag catch limits, the Council requested
that NMFS move the start of the gag recreational fishing season for the
2023 fishing year from June 1 to September 1. The Council also
requested the season close on November 10, instead of remaining open
through December 31, as it has in recent years. Therefore, the 2023
recreational fishing season will be open from September 1 through
November 9, unless NMFS projects that the recreational ACL will be
reached sooner and closes the recreational sector as required by the
accountability measures (AM) specified in 50 CFR 622.41(r)(2).
The reduced recreational catch limits in this temporary rule will
result in a shorter recreational season. However, the Council and NMFS
expect that the change to the recreational season will mitigate the
lower catch limits and will maximize the number of recreational fishing
days for gag. If the opening date for the recreational season had
remained June 1, 2023, NMFS projected that recreational landings of gag
would reach the recreational ACL in only 16 days.
NMFS would implement the current AM of an in-season closure earlier
if NMFS projects that recreational landings will meet or exceed the
recreational ACL before the November 10 closure date.
The temporary reductions in the allowable harvest of gag will
result in reduced allowable harvest for both the commercial and
recreational sectors and a reduced recreational fishing season. The
reduced harvest levels and shortened recreational fishing season will
likely result in short-term adverse socio-economic effects. However,
the temporary ACLs, commercial quota, and recreational ACT are expected
to minimize future adverse socio-economic effects by potentially
decreasing further reductions in the allowable harvest levels required
to end overfishing of gag through Amendment 56. The temporary harvest
levels in this rule will also provide biological benefits to the gag
stock by reducing the past levels of fishing mortality.
Comments and Responses
NMFS received 24 comments during the public comment period on the
proposed temporary rule. Most of the comments NMFS received were
opposed to the interim measures for gag. NMFS acknowledges the comments
in favor of the action in the proposed rule and agrees with them. Some
comments were outside the scope of the proposed temporary rule,
suggesting NMFS implement alternative management measures or apply
restrictions to a specific fishery sector or component,
[[Page 27703]]
and those comments are not responded to in this final temporary rule.
Comments that were opposed to or requested additional information about
the actions contained in the proposed temporary rule are grouped as
appropriate and summarized below, along with NMFS' responses.
Comment 1: The catch level reductions for gag are unnecessary
because either the stock assessment is inaccurate or there is no
shortage of gag in certain areas of the Gulf.
Response: NMFS disagrees that the reduction in the gag catch limits
are unnecessary. The best scientific information available supports
both the stock assessment results and the decision to reduce the catch
limits through this temporary rule. The most recent stock assessment
for Gulf gag (SEDAR 72) was completed in 2021 and determined that the
stock is undergoing overfishing and is overfished. The assessment
included a multi-day data review workshop and several webinars, and was
reviewed by the Council's SSC, which concluded that SEDAR 72 was based
on the best scientific information available. Although NMFS recognizes
that the abundance of gag varies across locations in the Gulf, gag is
managed as a single stock in the Gulf, and the stock assessment, which
used Gulf-wide data, concluded that the overall abundance has declined
precipitously since the previous gag stock assessment was completed in
2016. This conclusion is supported by the inability of both the
commercial and recreation sectors to harvest their allotted quotas of
gag. In the last 5 years covered by SEDAR 72 (2015-2019), the combined
commercial and recreational harvest only exceeded 50 percent of the gag
stock ACL once (2016).
Comment 2: The recreational season for gag should be open from
October through December because that is when gag move closer to shore.
Response: The Council recommended a recreational season opening on
September 1 because public comments from stakeholders supported the
longest season possible. The season starting September 1 is scheduled
for a maximum of 70 days, closing on November 10, while the alternative
start dates considered for the recreational season resulted in shorter
season estimates. NMFS estimated that a June 1 start date would last
only 16 days; an October 1 start date is estimated to last 55 days; and
a November 1 start date is estimated to last 29 days. Thus, even if an
October 1 start date for the recreational season was implemented, NMFS
projected the season would only last until late November. In addition,
shorter seasons are more likely to result in ``derby-like'' fishing,
where greater effort and greater numbers of fish are harvested in a
shorter period, and fishermen may decide go out in more dangerous
conditions.
Comment 3: NMFS should reduce the recreational bag limit from two
fish to one fish instead of reducing the season length. Alternatively,
NMFS should reduce bag limit to one fish and reduce the recreational
season length.
Response: The Council did not consider an action to change the
existing bag limit for gag, nor recommend that NMFS reduce the gag two-
fish bag limit through this temporary rule. Additional analysis is
necessary to determine the combined impacts of reducing the bag limit
and shortening the open season. The Council has indicated that it may
explore a bag limit reduction in the future, which would provide the
opportunity to complete this additional analysis and evaluate whether a
reduction in bag limit combined with the change to the open season
would achieve the desired reduction in harvest.
Comment 4: Although the commercial quota and recreational ACT are
decreased by 79 percent, the recreational season length in number of
days is only reduced by 61 percent. The percentage reduction in
recreational fishing days should be the same as the reduction in the
recreational ACT.
Response: This temporary rule shortens the recreational season for
gag from 214 days (June 1 through December 31) to 70 days (September 1
through November 9), which is approximately a 67 percent reduction. In
addition, consistent with the current accountability measures, this
temporary rule limits recreational harvest to the recreational ACL also
set in this rule, not the recreational ACT. The recreational ACL will
be reduced from 1,903,000 lb (863,186 kg) to 403,759 lb (183,142 kg).
However, as explained above, these catch limits are not directly
comparable because of the change from MRIP-CHTS to MRIP-FES to estimate
recreational landings. Further, NMFS would not expect the reduction in
the ACL to directly correspond to the reduction in the season length
because recreational fishing effort and catch rates for gag change
during a fishing year, so the time of year when fishing occurs is
important in projecting how quickly the catch limit will be reached.
This temporary rule will change the start date for the gag recreational
season from June 1 to September 1. Because the recreational harvest of
gag in total pounds is historically much lower in September and October
than in June, NMFS projects that it will take longer to catch the
decreased ACL than it would if the season were to open on June 1.
Comment 5: The proposed recreational season of September 1 through
November 9 is problematic for three reasons. First, the catch rates of
gag in June, July, and August are low and a recreational closure during
this time will not have a significant reduction on recreational
harvest. Second, gag are commonly caught while targeting red snapper
and a closure for gag from June through August, when red snapper
harvest is generally at its peak, will most likely cause a significant
number of gag discards in deep water. Therefore, the gag season should
be open concurrent with the red snapper season to reduce bycatch of gag
during that time, and then close the gag season late in the year, such
as, an open season from June 1 through September 30. Separating the
fishing seasons for gag and red snapper seems more likely to maximize
bycatch, not minimize it to the extent practicable as required by
National Standard 9. Last, the recreational season of September 1
through November 9 will heavily favor commercial fishermen instead of
recreational fishermen due to the less favorable weather conditions at
that time of year.
Response: NMFS has determined that the change in the recreational
open season implemented through this temporary rule will reduce gag
bycatch and bycatch mortality, to the maximum extent practicable,
consistent with the requirements of National Standard 9. The Council
considered multiple factors in recommending the preferred alternative
for the start date of the gag recreational season, including the season
length projections, economic concerns, especially associated with the
for-hire sector, and the potential changes in bycatch. The Council
determined that it is important to provide recreational fishermen and
for-hire businesses the longest season possible to harvest the
recreational ACL. A season starting September 1 (the longest projected
season length of the alternatives considered) is scheduled to be open
for 70 days, while a season beginning June 1 (the shortest projected
season) is projected to last 16 days. Although gag catch rates, i.e.,
catch per unit effort, may be lower during June through August,
concurrent with most of the Gulf States recreational seasons for red
snapper and with the Federal red snapper for-hire season, than in some
months later in the year (e.g., November), the total pounds of gag
harvested during this season is higher
[[Page 27704]]
than any other time in the year due to the higher number of anglers
that harvest gag. This is because of the larger number of recreational
fishermen targeting reef fish, and also likely due to relatively
favorable fishing weather and the open red snapper season. In addition,
a June 1 start date would have the greatest adverse economic effects on
the for-hire component because during the limited 16-day season
fishermen on for-hire vessels would have to take single trips to
harvest both red snapper and gag, instead of having a different season
to schedule trips for the two species. Thus, a June 1 season is
expected to result in a decreased number of trips and decreased revenue
for the for-hire component.
With respect to bycatch, opening the recreational season on June 1
would require recreational fishermen to discard all gag caught after
the short 16-day season concludes. Although the September 1 opening may
result in discards during the few weeks that the season would have been
open in early June, it is also expected to eliminate targeted harvest
of gag from June 1 through August 31. Many experienced fishermen have
explained during public meetings that gag can be avoided when targeting
other species, including red snapper. Thus, although there are
uncertainties with regard to the extent of bycatch given each of the
season opening dates, NMFS expects the September 1 season opening to
reduce gag mortality during the peak of the red snapper recreational
season, reduce overall gag mortality, and also provide economic and
social benefits to the recreational sector.
NMFS does not believe the recreational season in this temporary
rule will favor commercial fishermen over recreational fishermen.
Because there are separate commercial and recreational catch limits,
harvest by the commercial sector will not impact the recreational
season. This longer recreational season will provide the greatest
flexibility to recreational fishermen to avoid periods of poor weather
and harvest gag, compared to the other shorter seasons that the Council
considered. Further, in at least some areas, gag move closer to shore
in the fall as the water cools, which may allow for safer access by
anglers when compared to areas farther offshore where gag occur in the
summer. The cooler, shallower water may also reduce release mortality
for those gag that are caught but cannot be kept.
Comment 6: The initial regulatory flexibility analysis (IRFA) for
the proposed temporary rule is faulty because it does not account for
effects on commercial crew members.
Response: Analyses conducted to satisfy the requirements of the RFA
only consider the effects of a rule on entities subject to the
regulation (i.e., entities to which the rule will directly apply)
rather than entities indirectly affected by the regulation. Because the
commercial quota for gag is allocated to businesses that possess shares
for gag in the GT-IFQ program, crew members on commercial fishing
vessels who do not also possess such shares would be indirectly rather
than directly affected by the temporary rule. Therefore, consideration
of effects on individual crew members is outside the scope of the IRFA
analysis.
Comment 7: The temporary rule will adversely affect consumers who
purchase gag by raising prices or they will not be able to purchase the
fish.
Response: NMFS agrees that the reduction in the commercial quota
proposed by this temporary rule would be expected to temporarily
increase the ex-vessel price of gag, which would likely be passed on to
consumers and result in a decrease in consumer surplus, i.e., economic
value to consumers. Specifically, Table 4.1.3.2 in the environmental
assessment indicates that the ex-vessel price of gag is expected to
increase by $1.44 per lb, which in turn is expected to reduce consumer
surplus by $497,585, over the maximum effective period of the temporary
rule, 366 days. These economic losses for consumers cannot be avoided
because NMFS has determined that the commercial quota reduction in this
temporary rule is necessary to reduce overfishing of gag while a
rebuilding plan is being developed.
Comment 8: The gag commercial quota reduction will cause extreme
hardship to commercial fishermen and their families, their communities,
and the seafood supply chain, and could have been avoided or at least
mitigated had the Council and NMFS acted sooner. The reduction in the
recreational catch limits will cause for-hire vessels to go out of
businesses or greatly affect their ability to make a living, and may
cause effort to shift to other species.
Response: NMFS recognizes that the temporary rule may cause
economic hardships for commercial and recreational for-hire
stakeholders and communities reliant on gag. However, not reducing
harvest would be expected to result in further declines to the gag
population and greater economic hardships in the longer term. Regarding
the timeliness of this action, the Council and NMFS use the SEDAR
process to assess the abundance and health of populations of several
managed stocks. The gag stock has been assessed frequently since 2006,
with some assessments indicating the population was overfished and
overfishing was occurring, and other assessments indicating the
population was healthy. Prior to SEDAR 72, the next most recent stock
assessment (SEDAR 33 Update, 2016) indicated the gag population was
healthy. Thus, the Council and NMFS did not have sufficient information
to support reducing catch levels prior to the Council receiving the
results of SEDAR 72 at its September 2021 meeting. Stock assessments
take several years to complete, so the data from the stock assessment
may be several years old before a final rule can be implemented, and
thus a population status may change before the Council and NMFS receive
the results.
Comment 9: The temporary rule is unlikely to achieve its purpose
due to unconstrained and inaccurate estimates of recreational discards.
The temporary rule does not adequately track or account for dead
discards of gag by the recreational sector. It is unclear if NMFS'
analysis takes into account the potential for increased directed
fishing for gag during the new open fishing season, which could
increase catch rates beyond what was historically observed during that
period of time and thus fail to control overall fishing mortality. The
analysis concludes that overall gag mortality is expected to decrease,
but the basis for that conclusion is not explained. It does not appear
that the temporary rule or the accompanying analysis quantifies the
numbers of gag expected to be caught and discarded dead as bycatch by
recreational anglers during the closed or open seasons, or the
potential for increased directed fishing pressure during the proposed
70-day fishing season. Without those figures, the public has no way to
assess the actual impact on ``overall gag mortality.''
Response: The purpose of this temporary rule is to reduce
overfishing of gag during the 2023 fishing year while the Council and
NMFS work to implement permanent measures to end overfishing and
rebuild the stock. As explained in the response to Comment 5, NMFS
recognizes that shifting the recreational season may change fishing
pressure during the fall months and the magnitude of gag discards
during the red snapper season. However, NMFS does not agree that it is
necessary to quantify expected discards to conclude that the reduction
in the commercial and recreational catch limits will
[[Page 27705]]
achieve the purpose of reducing overfishing during this interim period.
As explained in the environmental assessment supporting this rule, the
average total gag commercial and recreational landings between 2017 and
2021 was over 3 million lb (1,360,777 kg). This temporary rule is
expected to constrain total harvest in 2023 to 661,901 lb (300,233 kg)
and, therefore, regardless of any uncertainty related discard
mortality, reduce overfishing compared to the status quo catch limits
and recent landings. Further, the Council considered uncertainty in the
catch rates when recommending the September 1 to November 10
recreational season. This 70-day season is more conservative than NMFS'
current estimate for the season length based on previous years of
fishing effort during September through December, which suggests that
it would take 80 to 96 days to harvest the revised gag recreational
ACL. The shorter 70-day season accounts for changes in effort that may
occur due to the new season timeframe, and provide a buffer in case
recreational landings are higher than estimated. Also, NMFS will use
all available data, including final 2022 recreational data, which are
not yet available, to determine whether the season should be reduced
further. If the data indicate a recreational closure for gag is
necessary to avoid exceeding its recreational ACL prior to November 10,
NMFS will close the season.
Comment 10: The voluntary data collection from private recreational
anglers that occurs through MRIP-FES is delayed by months after
landings occur and before they are available for use by management.
NMFS does not explain how it will obtain sufficient information from
the recreational sector about what is caught during the proposed open
season in time to actually shorten that season.
Response: NMFS will use the best data available to project the
duration of the recreational season. The recreational season
implemented by this final temporary rule will be a maximum of 70 days
and is based on a conservative estimate that is expected to result in
landings less than the new recreational ACL for gag. NMFS will continue
to run projections that include newly available recreational landings,
such as the final 2022 recreational landings of gag, which are not
included in the current projection. If the updated projections indicate
that recreational landings will reach the recreational ACL before
November 10, NMFS will shorten the season.
Future Action
NMFS has determined that this temporary rule is necessary to reduce
overfishing of gag. NMFS considered all public comments received within
the scope of the proposed temporary rule in the determination of
whether to proceed with a final temporary rule and whether any
revisions to the final temporary rule were appropriate. This final
temporary rule is effective for 180 days after the date of publication
in the Federal Register, as authorized by section 305(c) of the
Magnuson-Stevens Act. The temporary rule could be extended for up to an
additional 186 days if NMFS publishes a temporary rule extension in the
Federal Register, because the public has had an opportunity to comment
on the proposed temporary rule, and the Council is actively preparing
an FMP amendment to address overfishing on a permanent basis.
Classification
This action is issued pursuant to section 305(c) of the Magnuson-
Stevens Act, 16 U.S.C. 1855(c). The NMFS Assistant Administrator has
determined that this temporary rule is consistent with the Magnuson-
Stevens Act and other applicable law.
This temporary rule has been determined to be not significant for
purposes of Executive Order 12866.
The Magnuson-Stevens Act provides the legal basis for this
temporary rule. No duplicative, overlapping, or conflicting Federal
rules have been identified. In addition, no new reporting and record-
keeping requirements are introduced by this temporary rule. This
temporary rule contains no information collection requirements under
the Paperwork Reduction Act of 1995.
NMFS prepared a final regulatory flexibility analysis (FRFA) for
this temporary rule. The FRFA incorporates the IRFA, a summary of the
significant issues raised by the public comments in response to the
IRFA, NMFS' responses to those comments, and a summary of the analyses
completed to support the action. NMFS' responses to public comments
regarding the IRFA and the Executive Order 12866 analysis are in the
SUPPLEMENTARY INFORMATION section of the preamble under the Comments
and Responses heading. A copy of the full analysis is available from
NMFS (see ADDRESSES). A summary of the FRFA follows.
The objective of this temporary rule is to use the best scientific
information available to reduce overfishing of gag while a rebuilding
plan is developed, consistent with the authority under the Magnuson-
Stevens Act. All monetary estimates in the following analysis are in
2019 dollars.
This temporary rule will revise the stock ACL, sector ACLs,
commercial quota, and recreational ACT for gag based on the ``TMin*2''
rebuilding scenario, which is twice the minimum time for the stock to
rebuild with zero fishing mortality and is an alternative under
consideration in Amendment 56. This temporary rule retains the existing
sector allocations of the stock ACL of 39 percent to the commercial
sector and 61 percent to the recreational sector, but will reduce the
stock ACL, commercial ACL, recreational ACL, commercial quota and
recreational ACT to 661,901 lb (300,233 kg), 258,000 lb (117,027 kg),
403,759 lb (183,142 kg), 199,000 lb (90,265 kg), and 362,374 lb
(164,370 kg), respectively. The recreational portion of the revised
stock ACL, the recreational ACL, and the recreational ACT are based on
MRIP-FES data. This temporary rule will also change the recreational
season start date from June 1 to September 1, and close the season on
November 10 unless NMFS projects the recreational ACL to be met sooner.
As a result, this temporary rule is expected to regulate commercial
fishing businesses that possess shares of gag in the GT-IFQ program and
for-hire fishing businesses that target gag.
The gag commercial quota is allocated annually based on the
percentage of gag shares in each IFQ account. For example, if an
account possesses 1 percent of the gag shares and the commercial quota
is 1 million lb (0.45 million kg), then that account would receive
10,000 lb (4,536 kg) of commercial gag quota. Although it is common for
a single IFQ account with gag shares to be held by a single business,
some businesses have multiple IFQ accounts with gag shares. As of July
8, 2021, 506 IFQ accounts held gag shares. These accounts and gag
shares were owned by 455 businesses. Thus, NMFS assumes this temporary
rule would regulate 455 commercial fishing businesses.
A valid charter vessel/headboat permit for Gulf reef fish is
required to legally harvest gag on a recreational for-hire fishing
trip. NMFS does not possess complete ownership data regarding
businesses that hold a charter vessel/headboat permit for Gulf reef
fish, and thus potentially harvest gag. Therefore, it is not currently
feasible to accurately determine affiliations between vessels and the
businesses that own them. As a result, for purposes of this analysis,
NMFS assumes each for-hire vessel is independently owned by a single
business, which NMFS expects to result in an overestimate of the actual
number
[[Page 27706]]
of for-hire fishing businesses regulated by this temporary rule.
NMFS also does not have data indicating how many for-hire vessels
actually harvest gag in a given year. However, in 2020, there were
1,289 vessels with valid charter vessel/headboat permits for Gulf reef
fish. Further, gag is only targeted and almost entirely harvested in
waters off the west coast of Florida. Of the 1,289 federally permitted
vessels, 803 were homeported in Florida. Of these permitted vessels, 62
are primarily used for commercial fishing rather than for-hire fishing
purposes, and thus are not considered for-hire fishing businesses. In
addition, 46 of these permitted vessels are considered headboats, which
are considered for-hire fishing businesses. However, headboats take a
relatively large, diverse set of anglers to harvest a diverse range of
species on a trip, and therefore do not typically target a particular
species exclusively. Therefore, NMFS assumes that no headboat trips
would be canceled, and thus no headboats would be directly affected as
a result of this regulatory action. However, charter vessels often
target gag. Of the 803 vessels with a valid charter vessel/headboat
permit for Gulf reef fish that are homeported in Florida, 695 vessels
are charter vessels. A recent study reported that 76 percent of charter
vessels with a valid charter vessel/headboat permit in the Gulf were
active in 2017, i.e., 24 percent were not fishing. A charter vessel
would only be directly affected by this temporary rule if it used to go
fishing. Given this information, NMFS' best estimate of the number of
charter vessels that are likely to harvest gag in a given year is 528,
and thus this temporary rule is estimated to regulate 528 for-hire
fishing businesses.
For RFA purposes, NMFS has established a small business size
standard for businesses, including their affiliates, whose primary
industry is commercial fishing (50 CFR 200.2). A business primarily
involved in the commercial fishing industry is classified as a small
business if it is independently owned and operated, is not dominant in
its field of operation (including its affiliates), and its combined
annual receipts (revenue) are not in excess of $11 million for all of
its affiliated operations worldwide. NMFS does not collect revenue data
specific to commercial fishing businesses that have IFQ accounts;
rather, revenue data are collected for commercial fishing vessels in
general. It is not possible to assign revenues earned by commercial
fishing vessels back to specific IFQ accounts and the businesses that
possess them because quota is often transferred across many IFQ
accounts before it is used by the business on a vessel for harvesting
purposes, and specific units of quota cannot be tracked. However, from
2016 through 2020, the maximum annual gross revenue earned by a single
vessel during this time was about $1.73 million in 2016. The average
gross revenue per vessel was about $108,000 in that year. By 2020, the
maximum and average gross revenue per vessel had decreased to about
$730,000 and $79,700, respectively. Based on this information, all
commercial fishing businesses regulated by this temporary rule are
determined to be small entities for the purpose of this analysis.
For other industries, the Small Business Administration has
established size standards for all major industry sectors in the U.S.,
including for-hire businesses (North American Industry Classification
System code 487210). A business primarily involved in for-hire fishing
is classified as a small business if it is independently owned and
operated, is not dominant in its field of operation (including its
affiliates), and has annual receipts (revenue) not in excess of $12.5
million for all its affiliated operations worldwide. The maximum annual
gross revenue for a single headboat in the Gulf was about $1.38 million
in 2017. On average, annual gross revenue for headboats in the Gulf is
about three times greater than annual gross revenue for charter
vessels, reflecting the fact that businesses that own charter vessels
are typically smaller than businesses that own headboats. Based on this
information, all for-hire fishing businesses regulated by this
temporary rule are determined to be small businesses for the purpose of
this analysis.
If implemented, NMFS expects this temporary rule to regulate 455 of
the 536 businesses with IFQ accounts, or approximately 85 percent of
those commercial fishing businesses. Further, NMFS expects this
temporary rule would regulate 528 of the 1,227 for-hire fishing
businesses with valid charter vessel/headboat permits for Gulf reef
fish, or approximately 43 percent of those for-hire fishing businesses.
NMFS has determined that, for the purpose of this analysis, all
regulated commercial and for-hire fishing businesses are small
entities. Based on this information, NMFS expects the temporary rule to
affect a substantial number of small entities.
Because revenue and cost data are not collected for the commercial
fishing businesses that are expected to be regulated by this temporary
rule, direct estimates of their economic profits are not available.
However, economic theory suggests that annual allocation (quota) prices
should reflect expected annual economic profits, which allows economic
profits to be estimated indirectly. Further, the 455 businesses with
gag shares also own shares in the other IFQ share categories and thus
are expected to earn profits from their ownership of these shares as
well, i.e., red snapper, red grouper, shallow-water grouper, deep-water
grouper, and tilefish.
However, economic profits will only be realized if the allocated
quota is used for harvesting purposes. For example, practically all of
the commercial red snapper quota has been used for harvesting in recent
years, and so NMFS assumes that all of that quota will be harvested in
the foreseeable future. Important management changes have occurred for
red grouper, which partly resulted in 96 percent of the commercial
quota being harvested in 2021. Thus, this analysis also assumes that
all of the red grouper quota will be harvested in the future as well.
However, based on 2017-2021 data, only 82 percent of the deep-water
grouper quota, 38 percent of the shallow-water grouper quota, and 73
percent of the tilefish quota have been harvested, and that is expected
to continue in the foreseeable future. For gag, the quota utilization
rate from 2017-2021 was approximately 52 percent. Given these quota
utilization rates in combination with average annual allocation prices
from 2017-2021 and annual commercial quotas in 2021, the total expected
economic profits for businesses with gag shares are estimated to be at
least $29.4 million at the present time. This estimate does not account
for any economic profits that may accrue to businesses with gag shares
that also own commercial fishing vessels that harvest non-IFQ species.
Such profits are likely to be small because harvest of IFQ species
accounts for around 84 percent of commercial IFQ vessels' annual
revenue and economic profits from the harvest of non-IFQ species tend
to be smaller than those from IFQ species. Given that there are 455
businesses with gag shares, the average annual expected economic profit
per commercial fishing business is at least $64,620.
However, most of these economic profits (82 percent) are the result
of owning red snapper shares. Only approximately $502,930 (or 1.7
percent) of their expected economic profits is due to the ownership of
gag shares. This temporary rule is only expected to affect economic
profits from the ownership of gag shares, specifically because of the
action that reduces the gag commercial
[[Page 27707]]
ACL from 1.217 million lb (0.552 million kg) to 258,000 lb (117,027 kg)
and the gag commercial quota from 939,000 lb (426,000 kg) to 199,000 lb
(90,265 kg). Average annual commercial landings of gag from 2017-2021
were 492,401 lb (223,349 kg). Because average annual landings exceed
the commercial quota, NMFS assumes all of the commercial quota will be
harvested in the future. Further, the expected reduction in annual
commercial landings is 293,401 lb (133,084 kg). The reduction in
commercial landings is expected to increase the average ex-vessel price
of gag from $6.10 per lb to $7.54 per lb, thereby partially offsetting
the adverse effects of the expected landings reduction. Thus, the
expected reduction in annual ex-vessel revenue for gag is approximately
$1.5 million, over the maximum effective period of the temporary rule,
366 days. Given an average annual allocation price of $1.03 per lb for
gag from 2017-2021, the expected reduction in commercial landings of
gag is expected to reduce economic profits to these commercial fishing
businesses by about $302,200, or by approximately $660 per commercial
fishing business. Thus, economic profit is expected to be reduced by no
more than 1 percent on average per commercial fishing business.
Based on the most recent information available, average annual
profit is $27,948 per charter vessel. The action that revises the stock
ACL changes the gag recreational ACL from 1.903 million lb (0.86
million kg) in MRIP-CHTS units to 403,759 lb (183,142 kg) in MRIP-FES
units. The terms ``MRIP-CHTS units'' and ``MRIP-FES units'' signify
that although the current and recreational ACLs are expressed in
pounds, they are in different scales and not directly comparable.
However, average recreational landings from 2017-2021 were
approximately 2.538 million lb (1.151 million kg) in MRIP-FES units.
Given that average recreational landings have been considerably greater
than the recreational ACL, all of the recreational ACL is expected to
be harvested in the future. The recreational ACL reduction would be
expected to reduce the recreational season length from 214 days to 16
days, which in turn is expected to reduce the number of trips targeting
gag on charter vessels by 26,542 angler trips. Net Cash Flow per Angler
Trip (CFpA) is the best available estimate of economic profit per
angler trip by charter vessels. CFpA on charter vessels is estimated to
be $149 per angler trip. Thus, NMFS expects the estimated reduction in
charter vessel economic profits from this action to be $3.955 million.
The reduction in charter vessel economic profits is estimated to be
$7,490 per vessel, or almost 27 percent on average per for-hire fishing
business.
The action that changes the recreational season would increase the
number of target trips for gag by charter vessels during this period
over the number of target trips in previous years by 2,159 trips,
thereby partially mitigating the reduction in target trips due to the
recreational ACL reduction. Assuming the CFpA on charter vessels is
$149 per angler trip, this action is expected to increase economic
profits for charter vessels by $321,733, or by $609 per charter vessel.
Thus, economic profits are expected to be increased by around 2.2
percent on average per for-hire fishing business.
Based on the above, the total reduction in economic profits for
charter vessels from this temporary rule is expected to be about $3.634
million, or approximately $6,882 per charter vessel. Thus, economic
profits are expected to be reduced by approximately 24.6 percent on
average per for-hire fishing business.
Three alternatives, including the status quo, were considered for
the action to revise the gag stock ACL, commercial ACL, recreational
ACL, commercial quota, and recreational ACT of 3.12 million lb (1.415
million kg), 1.217 million lb (0.552 million kg), 1.903 million lb
(0.863 million kg), 939,000 lb (426,000 kg), and 1.708 million lb
(0.775 million kg) based on MRIP-CHTS data. The action in this
temporary rule will revise the same catch levels for gag to 661,901 lb
(300,233 kg), 258,000 lb (117,027 kg), 403,759 lb (183,142 kg), 199,000
lb (90,265 kg), and 362,374 lb (164,370 kg), respectively, based on the
TMin*2 rebuilding scenario and MRIP-FES data. Similar to the action in
this temporary rule, the status quo alternative would have retained the
current allocation of the stock ACL of 39 percent to the commercial
sector and 61 percent to the recreational sector. But, it also would
have maintained current the stock ACL, commercial ACL, recreational
ACL, commercial quota, and recreational ACT stated earlier based on
MRIP-CHTS data. The status quo alternative was not selected because it
would not reduce overfishing of gag while a rebuilding plan is being
developed, contrary to the purpose of this temporary rule.
A second alternative would have decreased the allocation percentage
of the gag stock ACL to the commercial sector from 39 percent to 20.5
percent and increased the allocation percentage to the recreational
sector from 61 percent to 79.5 percent. Further, based on the TMin*2
rebuilding scenario and MRIP-FES data, this alternative would have
revised the gag stock ACL, commercial ACL, recreational ACL, commercial
quota, and recreational ACT from 3.12 million lb (1.415 million kg),
1.217 million lb (0.552 million kg), 1.903 million lb (0.863 million
kg), 939,000 lb (426,000 kg), and 1.708 million lb (0.775 million kg)
based on MRIP-CHTS data to 611,578 lb (277,407 kg), 125,000 lb (56,699
kg), 486,204 lb (220,538 kg), 98,000 lb (44,452 kg), and 436,368 lb
(197,933 kg). This alternative would have reduced overfishing while a
rebuilding plan is being developed. However, because this temporary
rule and an extension cannot in combination be in effect for more than
366 days, this alternative was not selected because the Council advised
NMFS that it would prefer to address sector allocations for gag on a
longer-term basis through an amendment to the FMP.
A third alternative would have decreased the allocation percentage
of the gag stock ACL to the commercial sector from 39 percent to 18
percent and increased the allocation percentage to the recreational
sector from 61 percent to 82 percent. Further, based on the TMin*2
rebuilding scenario and MRIP-FES data, this alternative would have
revised the gag stock ACL, commercial ACL, recreational ACL, commercial
quota and recreational ACT from 3.12 million lb (1.42 million kg),
1.217 million lb (0.55 million kg), 1.903 million lb (0.86 million kg),
939,000 lb (426,000 kg), and 1.708 million lb (0.78 million kg) based
on MRIP-CHTS data to 605,165 lb (274,745 kg), 109,000 lb (49,486 kg),
496,235 lb (225,291 kg), 84,000 lb (38,136 kg), and 445,370 lb (202,198
kg). Similar to the second alternative, this alternative would have
reduced overfishing while a rebuilding plan is being developed.
However, because this temporary rule and an extension cannot be in
effect for more than 366 days, this alternative was not selected
because the Council advised NMFS that it would prefer to address sector
allocations for gag on a longer-term basis through an amendment to the
FMP.
Three alternatives, including the status quo, were considered for
the action to change the recreational start date from June 1 to
September 1, and close the season on November 10, unless NMFS projects
the recreational ACL will be met sooner. The status quo alternative
would have maintained the recreational season start date of June 1,
which was expected to result in a recreational season length of only 16
[[Page 27708]]
days compared to 70 days under the action in this temporary rule. This
alternative was not selected as it would not mitigate the adverse
effects from the recreational ACL reduction and thereby would have
resulted in greater adverse effects on small for-hire fishing
businesses.
The second alternative would have changed the recreational season
start date from June 1 to October 1, which would have resulted in a
recreational season length of 55 days compared to 70 days under the
action in this temporary rule. Although the second alternative would
have mitigated some of the adverse effects from the recreational ACL
reduction, this alternative was not selected because, given the shorter
season length compared to the action, it would not allow for-hire
fishing businesses as much flexibility in planning target trips for
gag, which is particularly desirable during hurricane season, which
occurs from June 1 through November 30 each year. Further, unlike the
action in this temporary rule, this alternative does not have a fixed
closure date, which would increase the probability of exceeding the
recreational ACL relative to the action in this temporary rule.
The third alternative would have changed the recreational season
start date from June 1 to November 1, which would have resulted in a
recreational season length of 29 days compared to 70 days under the
action in this temporary rule. Although the third alternative would
have mitigated some of the adverse effects from the recreational ACL
reduction, this alternative was not selected because it would not have
mitigated those adverse effects as much as the action, thereby causing
relatively greater adverse effects on small for-hire fishing
businesses. Further, given the shorter season length compared to the
action in this temporary rule, it would not allow for-hire fishing
businesses as much flexibility in planning target trips for gag, which
is particularly desirable during hurricane season. Also, similar to the
second alternative, this alternative does not have a fixed closure
date, which would increase the probability of exceeding the
recreational ACL relative to the action in this temporary rule.
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, NMFS prepared a fishery bulletin that also
serves as the small entity compliance guide. NMFS will send the fishery
bulletin to all interested parties. A copy of this final temporary rule
is available from NMFS (see ADDRESSES), and the small entity compliance
guide is available on the NMFS website at <a href="https://www.fisheries.noaa.gov/rules-and-announcements/bulletins">https://www.fisheries.noaa.gov/rules-and-announcements/bulletins</a>.
There is good cause under authority contained in 5 U.S.C. 553(d)(3)
to waive the 30-day delay in effectiveness so that this final temporary
rule can be effective by June 1, 2023. On December 13, 2022, NMFS
published a temporary rule to withhold a portion of the commercial
allocation of gag for the 2023 fishing year in anticipation of the
reduction in the commercial quota in this final temporary rule (87 FR
76125). If this final temporary rule is not effective by June 1, 2023,
the regulations at 50 CFR 622.22(a)(4) require NMFS to distribute the
previously withheld commercial allocation, which would be contrary to
the purpose of this rule to reduce overfishing for the 2023 fishing
year. In addition, the current recreational fishing season opens on
June 1. Therefore, this final temporary rule must be effective by that
date to constrain recreational harvest to the reduced recreational
catch limit while providing the maximum number of fishing days. NMFS
was unable to publish this final temporary rule sooner because NMFS
determined that it was important to solicit public comments on the
interim measures, which substantially reduce the allowable harvest of
gag for the 2023 fishing year, and it took time to complete the
analyses supporting the proposed temporary rule and to respond to the
comments received.
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Gag, Gulf of Mexico.
Dated: April 27, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 50 CFR part
622 as follows:
PART 622--FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH
ATLANTIC
0
1. The authority citation for part 622 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 622.34:
0
a. Suspend paragraph (e); and
0
b. Add paragraph (i).
The addition reads as follows:
Sec. 622.34 Seasonal and area closures designed to protect Gulf reef
fish.
* * * * *
(i) Seasonal closure of the recreational sector for gag. The
recreational harvest of gag in or from the Gulf EEZ is closed from
January 1 through August 31 and from November 10 through December 31.
During the closure, the bag and possession limits for gag harvested in
or from the Gulf EEZ are zero.
0
3. In Sec. 622.39:
0
a. Suspend paragraph (a)(1)(iii)(B); and
0
b. Add paragraph (a)(1)(iii)(D).
The addition reads as follows:
Sec. 622.39 Quotas.
* * * * *
(a) * * *
(1) * * *
(iii) * * *
(D) Gag. Shallow-water groupers (SWG) have a separate quota for
gag, among the other species described in the introductory text of
paragraph (a)(1)(iii) of this section, and as specified in this
paragraph (a)(1)(iii)(D). This quota is specified in gutted weight,
that is, eviscerated but otherwise whole. The commercial quota for gag
is 199,000 lb (90,265 kg).
* * * * *
0
4. In Sec. 622.41:
0
a. Suspend paragraph (d); and
0
b. Add paragraph (r).
The addition reads as follows:
Sec. 622.41 Annual catch limits (ACLs), annual catch targets (ACTs),
and accountability measures (AMs).
* * * * *
(r) Gag--(1) Commercial sector. The IFQ program for groupers and
tilefishes in the Gulf of Mexico serves as the accountability measure
for commercial gag. The commercial ACL in gutted weight is 258,000 lb
(117,027 kg).
(2) Recreational sector. (i) Without regard to overfished status,
if gag recreational landings, as estimated by the SRD, reach or are
projected to reach the applicable ACLs specified in paragraph
(r)(2)(iv) of this section, the AA will file a notification with the
Office of the Federal Register, to close the recreational sector for
the remainder of the fishing year. On and after the effective date of
such a notification, the bag and possession limits of gag in or from
the Gulf EEZ are zero. These bag and possession limits apply in the
Gulf
[[Page 27709]]
on a vessel for which a valid Federal charter vessel/headboat permit
for Gulf reef fish has been issued, without regard to where such
species were harvested, i.e., in State or Federal waters.
(ii) Without regard to overfished status, and in addition to the
measures specified in paragraph (r)(2)(i) of this section, if gag
recreational landings, as estimated by the SRD, exceed the applicable
ACLs specified in paragraph (r)(2)(iv) of this section, the AA will
file a notification with the Office of the Federal Register to maintain
the gag ACT, specified in paragraph (r)(2)(iv) of this section, for
that following fishing year at the level of the prior year's ACT,
unless the best scientific information available determines that
maintaining the prior year's ACT is unnecessary. In addition, the
notification will reduce the length of the recreational gag fishing
season the following fishing year by the amount necessary to ensure gag
recreational landings do not exceed the recreational ACT in the
following fishing year.
(iii) If gag are overfished, based on the most recent status of
U.S. Fisheries Report to Congress, and gag recreational landings, as
estimated by the SRD, exceed the applicable ACL specified in paragraph
(r)(2)(iv) of this section, the following measures will apply. In
addition to the measures specified in paragraphs (r)(2)(i) and (ii) of
this section, the AA will file a notification with the Office of the
Federal Register, at or near the beginning of the following fishing
year to reduce the ACL for that following year by the amount of the ACL
overage in the prior fishing year, and reduce the ACT, as determined in
paragraph (r)(2)(ii) of this section, by the amount of the ACL overage
in the prior fishing year, unless the best scientific information
available determines that a greater, lesser, or no overage adjustment
is necessary.
(iv) The recreational ACL in gutted weight is 403,759 lb (183,142
kg). The recreational ACT in gutted weight is 362,374 lb (164,370 kg).
[FR Doc. 2023-09336 Filed 5-2-23; 8:45 am]
BILLING CODE 3510-22-P
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