Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Resources of the Gulf of Mexico; Amendment 56, 40419-40436 [2024-10208]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 92 (Friday, May 10, 2024)]
[Rules and Regulations]
[Pages 40419-40436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10208]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 240506-0129]
RIN 0648-BM46


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Resources of the Gulf of Mexico; Amendment 56

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

ACTION: Final rule.

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SUMMARY: NMFS issues regulations to implement management measures 
described in Amendment 56 to the Fishery Management Plan for the Reef 
Fish Resources of the Gulf of Mexico. This final rule revises catch 
levels for gag, accountability measures for its recreational harvest, 
and the recreational fishing season. In addition, Amendment 56 
establishes a rebuilding plan for the overfished stock, and revises the 
stock status determination criteria and sector harvest allocations. The 
purpose of this action is to implement a rebuilding plan for gag and 
revised management measures to end overfishing and rebuild the stock.

DATES: This final rule is effective on June 1, 2024.

ADDRESSES: An electronic copy of Amendment 56 is available from the 
Southeast Regional Office website at https://www.fisheries.noaa.gov/action/amendment-56-modifications-catch-limits-sector-allocation-and-recreational-fishing-seasons. Amendment 56 includes an environmental 
assessment, a fishery impact statement, a Regulatory Flexibility Act 
(RFA) analysis, and a regulatory impact review.

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

SUPPLEMENTARY INFORMATION: NMFS, with the advice of the Gulf of Mexico 
Fishery Management Council (Council), manages the reef fish fishery, 
which includes gag, in Federal waters of the Gulf of Mexico (Gulf), 
under the Fishery Management Plan for the Reef Fish Resources of the 
Gulf of Mexico (FMP). The Council prepared the FMP, which the Secretary 
of Commerce approved, and NMFS implements the FMP through regulations 
at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act).
    On October 18, 2023, NMFS published a notice of availability for 
the review of Amendment 56 and requested public comment (88 FR 71812). 
On November 9, 2023, NMFS published a proposed rule for Amendment 56 
and requested public comment (88 FR 77246). NMFS approved Amendment 56 
on January 17, 2024.

Background

    Gag in Gulf Federal waters are found primarily in the eastern Gulf. 
Juvenile gag are estuarine dependent and often inhabit shallow seagrass 
beds. As gag mature, they move to deeper offshore waters to live and 
spawn. Gag is managed as a single stock with a stock annual catch limit 
(ACL) that is further divided or allocated into commercial and 
recreational sector ACLs. Currently, that allocation of the stock ACL 
is 39 percent to the commercial sector and 61 percent to the 
recreational sector. All weights in this final rule are given in gutted 
weight.
    Commercial fishing for gag is managed under the individual fishing 
quota (IFQ) program for groupers and tilefishes (GT-IFQ program), which 
began on January 1, 2010 (74 FR 44732, August 31, 2009; 75 FR 9116, 
March 1, 2010). Under the GT-IFQ program, the commercial quota for gag 
is set 23 percent below the gag commercial ACL, and NMFS distributes 
allocation (in pounds) of gag on January 1 each year to those who hold 
shares (in percent) of the gag total commercial quota. Both gag and red 
grouper, another grouper species managed under the GT-IFQ program, have 
a commercial multi-use provision that allows a portion of the gag quota 
to be harvested under the red grouper allocation, and vice versa. As 
explained further in Amendment 56, the multi-use provision is based on 
the difference between the respective gag and red grouper ACLs and 
quotas. However, if gag is under a rebuilding plan, as will occur under 
Amendment 56 and this final rule, the percentage of red grouper multi-
use allocation is equal to zero. Commercial harvest of gag is also 
restricted by area closures and a minimum size limit.
    NMFS, with the advice of the Council, manages the recreational 
harvest of gag with an ACL, an annual catch target (ACT) set 
approximately 10 percent below the ACL, in-season and post-season 
accountability measures (AMs) to prevent and mitigate overfishing, 
seasonal and area closures, a minimum

[[Page 40420]]

size limit, and daily bag and possession limits.
    The most recent stock assessment for gag was completed in 2021 
through Southeast Data, Assessment, and Review 72 (SEDAR 72), and 
concluded that the gag stock is overfished and is undergoing 
overfishing as of 2019. Compared to the previous assessment for gag, 
SEDAR 72 used several improved data sources, including corrections for 
the potential misidentification between black grouper and gag, which 
are similar looking species, to better quantify estimates of commercial 
discards. SEDAR 72 also used updated recreational catch and effort data 
from the Marine Recreational Information Program (MRIP) Access Point 
Angler Intercept Survey and Fishing Effort Survey (FES) through 2019. 
Prior to SEDAR 72, the most recent stock assessment for gag was SEDAR 
33 Update (2016), which indicated that gag was not subject to 
overfishing and was not overfished. The SEDAR 33 Update used 
recreational catch and effort data generated by the MRIP Coastal 
Household Telephone Survey (CHTS).
    SEDAR 72 also accounted for observations of red tide mortality 
directly within the stock assessment model. Gag is vulnerable to red 
tide events and was negatively affected by these disturbances in 2005, 
2014, 2018, and projected for 2021. Modeling changes were also made in 
SEDAR 72 to improve size estimates of gag retained by commercial and 
for-hire (charter vessels and headboats) fishermen, and private 
anglers.
    The Council's Scientific and Statistical Committee (SSC) reviewed 
the results of SEDAR 72 in November 2021 and concluded that the 
assessment was consistent with the best scientific information 
available and suitable for informing fisheries management. On January 
26, 2022, NMFS notified the Council that gag was overfished and 
undergoing overfishing, and the Council subsequently developed a 
rebuilding plan for gag through Amendment 56.
    At its January 2022 meeting, the Council requested that the NMFS 
Southeast Fisheries Science Center update the SEDAR 72 base model by 
replacing MRIP-FES landings estimates for the Florida private angling 
mode with landings estimates produced by the Florida Fish and Wildlife 
Conservation Commission's State Reef Fish Survey (SRFS). Historically, 
SRFS estimates a slightly higher fishing effort, and therefore a larger 
harvest of gag, by private anglers and state charter vessels (in 
Florida) than MRIP-CHTS, but SRFS estimates a substantially smaller 
harvest of gag by private anglers and state charter vessels than MRIP-
FES. This alternative model run of SEDAR 72 (``SRFS Run'') used MRIP-
FES data for the federally permitted charter vessel and shore modes, 
and data from the Southeast Region Headboat Survey (SRHS) for federally 
permitted headboats. The results of the SRFS Run were presented to the 
Council's SSC at its July 2022 meeting. The SSC found the SEDAR 72 SRFS 
Run to be consistent with the best scientific information available. 
The SSC determined that SRFS is a comprehensive survey for the gag 
private angling component of the recreational sector given that greater 
than 95 percent of private angling landings of gag are captured by the 
SRFS sampling frame and the SRFS program's collection protocol has been 
certified by the NMFS Office of Science and Technology as 
scientifically rigorous. NMFS worked in conjunction with the State of 
Florida to develop a calibration model to rescale historic effort 
estimates so that they could be compared to new estimates from SRFS. 
This calibration model was peer-reviewed and approved through the NOAA 
Office of Science and Technology in May 2022. Information about the 
calibration and the SSC's review of the SEDAR 72 SRFS Run can be found 
here: https://gulfcouncil.org/meetings/scientific-and-statistical-meetings/july-2022/. The results of the SEDAR 72 SRFS Run were 
consistent with the results of the SEDAR 72 base model in that both 
concluded that the gag stock is overfished and undergoing overfishing.
    At the time that NMFS and the Council developed Amendment 56, the 
Council recognized that NMFS could not likely implement a potential 
final rule until 2024. Further, the Council recognized that maintaining 
the previously implemented catch limits for gag in 2023 would continue 
to allow overfishing. Therefore, the Council sent a letter to NMFS, 
dated July 18, 2022 (Appendix A in Amendment 56), requesting that NMFS 
implement interim measures that would reduce overfishing by reducing 
the gag stock ACL from 3.120 million pounds (lb) or 1.415 million 
kilograms (kg) to 661,901 lb (300,233 kg). The Council determined, and 
NMFS agreed, that for this short-term reduction in harvest it was 
appropriate to maintain the current allocation of the stock ACL between 
the sectors of 39 percent commercial and 61 percent recreational, and 
the availability of red grouper multi-use and gag multi-use under the 
IFQ program. In addition to the reduction in the catch limits, the 
Council requested that the recreational fishing season for 2023 begin 
on September 1 and close on November 10, rather than the existing open 
season of June 1 through December 31. NMFS agreed and implemented these 
interim measures through a temporary rule effective on May 3, 2023 (88 
FR 27701, May 3, 2023). The measures in the temporary rule were 
initially effective for 180 days, and then NMFS extended them for up to 
186 additional days (through May 2, 2024; 88 FR 69553, October 6, 
2023), so NMFS could solicit and review public comments on the proposed 
rule and Amendment 56, and prepare final regulations as appropriate. 
Because the SSC's review of the SEDAR 72 SRFS Run occurred after the 
Council's decision to request interim measures for gag, the 
recreational catch limits in the temporary rule are consistent with 
MRIP-FES calibrated landings, and are not directly comparable to the 
catch limits recommended in Amendment 56 and this final rule.
    Based on the results of the SEDAR 72 SRFS Run and SSC 
recommendations, the Council recommended the following changes for gag 
through Amendment 56:
     Revise the maximum sustainable yield (MSY) proxy, optimum 
yield (OY), and status determination criteria (SDC);
     Establish a rebuilding plan for the stock, and revise the 
overfishing limit (OFL), acceptable biological catch (ABC), and stock 
ACL consistent with that rebuilding plan;
     Revise the commercial-recreational allocation of the stock 
ACL and set new commercial and recreational sector ACLs, sector ACTs, 
and commercial quota;
     Modify the recreational AMs; and
     Revise the Federal recreational fishing season.
    The current MSY proxy is based on the yield associated with a 
fishing mortality rate (F) associated with the maximum yield per 
recruit (FMAX). The SSC recommended a more conservative MSY 
proxy using the yield associated with F that would result in a spawning 
stock biomass (SSB) of 40 percent of the spawning potential ratio (SPR; 
F40SPR), where SPR is the ratio of the 
SSB to its unfished state. This revised MSY proxy of 
F40SPR was used to specify the long-term 
OY and SDC, and informs the catch level projections produced by the 
SEDAR 72 SRFS Run.
    For gag, the sector allocations of the stock ACL affect the catch 
level projections produced by SEDAR 72. As more of the stock ACL is 
allocated to the recreational sector, the proportion of recreational 
discards and associated

[[Page 40421]]

mortality increases. Recreational discard mortality rates of gag are 
assumed to be less than commercial discard mortality rates but the 
total number of recreational discards is considerably greater than the 
number of commercial discards. Generally, a gag caught and released by 
a recreational fisherman has a greater likelihood of survival than by a 
commercial fisherman because of how and where they fish. However, 
because of the much higher numbers of gag that are released by the 
recreational sector compared to the commercial sector, the total number 
of discarded fish that die from recreational fishing exceeds dead 
discards from commercial fishing. This results in additional mortality 
for the stock and a lower projected annual yield, which means a lower 
OFL, ABC, and stock ACL. However, higher number of dead discards is not 
due to any change in how the recreational sector operates in the 
fishery but occurs because the SEDAR 72 SRFS Run data estimated greater 
fishing effort, and consequently a greater number of fish being caught, 
which included discards and the associated mortality from discarding 
fish.
    After analyzing multiple alternatives for allocating the stock ACL 
between the fishing sectors, the Council determined and recommended to 
NMFS that using the allocation of 35 percent commercial and 65 percent 
recreational would best represent the historic landings for each sector 
while accounting for the change from data produced by the Marine 
Recreational Fisheries Statistics Survey (MRFSS) to SRFS data. Based on 
the results of the SEDAR 72 SRFS Run and the allocation ratio, the 
Council recommended OFLs and ABCs for gag during 2024-2028, and 
recommended the stock ACL be set equal to the ABC.

Management Measures Contained in This Final Rule

    This final rule will modify the gag stock and sector ACLs, sector 
ACTs, commercial quota (which is equivalent to the commercial ACT), 
recreational AMs, and recreational fishing season as described further.

Annual Catch Limits and Annual Catch Targets

    The 2023 temporary rule for gag implemented the current commercial 
ACL and commercial quota of 258,000 lb (117,027 kg) and 199,000 lb 
(90,265 kg), respectively, and the recreational ACL and ACT of 403,759 
lb (183,142 kg) and 362,374 lb (164,370 kg), respectively. These catch 
limits are based on the results of the initial SEDAR 72 base model run, 
which included recreational landings estimates generated using MRIP-
FES.
    Amendment 56 and this final rule will set the stock ACL for gag at 
444,000 lb (201,395 kg) in 2024, and will allocate approximately 35 
percent to the commercial sector and approximately 65 percent to the 
recreational sector. This results in a 155,000-lb (70,307-kg) 
commercial ACL and a 288,000-lb (130,635-kg) recreational ACL for 2024. 
As explained in the proposed rule and in this final rule, these catch 
limits are based on the results of the SEDAR 72 SRFS Run. Because of 
the different surveys used to estimate recreational landings that were 
then used to determine the current catch limits and the catch limits in 
this final rule, the catch limits are not directly comparable. However, 
the catch limits in this rule are a significant reduction compared to 
the catch limits that would go back into effect if the 2023 temporary 
rule expires with no further action. Catch levels will be set from 2024 
through 2028, which increase during the time series. The 2028 catch 
levels will continue after 2028 unless modified by subsequent 
rulemaking. All of the catch levels recommended by the Council in 
Amendment 56 were rounded down to the nearest thousand pounds. 
Therefore, the sum of the sector ACLs does not equal the stock ACL.
    Based on the Council's recommendation, this final rule will set the 
commercial quota equal to the commercial ACT, and the commercial quota 
will be approximately 5 percent below the commercial ACL. The current 
buffer between the commercial ACL and commercial quota is 23 percent. 
The Council recommended reducing this buffer, because there have been 
considerable improvements in the estimation of commercial landings and 
discards of gag since NMFS implemented the buffer in 2012. Further, the 
fraction of gag discarded compared to the total number of gag caught by 
the commercial sector has remained low. NMFS does not expect the 
actions in Amendment 56 and this final rule to significantly increase 
commercial discards of gag. Therefore, the commercial quota, the amount 
of gag allocation that NMFS distributes annually to IFQ shareholders, 
will be approximately 95 percent of the commercial ACL.
    For the recreational sector, the current buffer between the ACL and 
ACT is approximately 10 percent. The Council recommended a more 
conservative ACT than if they had applied the ACL and ACT control rule, 
which would have resulted in a 10 percent buffer between the ACL and 
ACT. Instead, the Council recommended doubling that buffer to increase 
the probability of rebuilding gag by accounting for uncertainty in 
managing the recreational harvest and further reducing fishing 
mortality and discards that result from directed harvest. NMFS agrees, 
thus, this final rule will implement a recreational ACT that is 
approximately 20 percent below the recreational ACL. Table 1 shows the 
catch levels recommended in Amendment 56, and except for the stock ACL, 
these catch levels are included in the regulatory text at the end of 
this rule.

                                               Table 1--Stock ACL and Sector Catch Levels by Year for Gag
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                               Com ACT & Quota lb
                   Year                       Stock ACL lb (kg)      Com ACL lb (kg)       Rec ACL lb (kg)            (kg)             Rec ACT lb (kg)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2024......................................     444,000 (201,395)      155,000 (70,307)     288,000 (130,635)      147,000 (66,678)     230,000 (104,326)
2025......................................     615,000 (278,959)      215,000 (97,522)     399,000 (180,983)      204,000 (92,533)     319,000 (144,696)
2026......................................     769,000 (348,813)     269,000 (122,016)     499,000 (226,343)     255,000 (115,666)     399,000 (180,983)
2027......................................     943,000 (427,738)     330,000 (149,685)     613,000 (278,052)     313,000 (141,974)     490,000 (222,260)
2028......................................   1,156,000 (524,353)     404,000 (183,251)     751,000 (340,648)     383,000 (173,726)     600,000 (272,155)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Values are displayed in gutted weight. Abbreviations used in this table: Com means commercial and Rec means recreational. Lb is pounds and kg is
  kilograms. Catch levels for 2028 will continue after 2028 unless changed.

Recreational Accountability Measures

    Currently for the recreational sector, the AMs require NMFS to 
prohibit harvest of gag for the rest of the fishing year when 
recreational landings reach its ACL. The AMs also state that if the 
recreational ACL for gag is exceeded in a fishing year, then in the 
following fishing year, NMFS will maintain the

[[Page 40422]]

prior year's ACT at the same level, unless the best scientific 
information available determines that is unnecessary, and the fishing 
season duration will be set based on the recreational ACT. In addition 
to the previous measures, if gag is overfished and the recreational ACL 
is exceeded in a fishing year, NMFS will reduce the ACL and ACT in the 
following fishing year by the amount of the ACL overage, unless the 
best scientific information available determines that is unnecessary. 
Amendment 56 and this final rule change the recreational AMs to require 
that NMFS prohibit harvest when the recreational ACT is projected to be 
met regardless of whether there was an overage of the recreational ACL 
in the prior year. NMFS and the Council expect this change, in 
combination with the increased buffer between the recreational ACL and 
ACT, to decrease the likelihood of recreational harvest exceeding the 
recreational ACL. The larger buffer between the recreational ACL and 
ACT will also reduce the level of discards associated with directed 
harvest, increasing the probability of meeting the 18-year rebuilding 
time.
    This final rule will also remove the recreational AM that requires 
the previous year's ACT to be maintained in the year following an 
overage of the recreational ACL. Because the stock is overfished and 
NMFS is required to reduce the ACL and ACT by any overage, an 
additional adjustment that retains the lower ACT is unnecessary.

Recreational Fishing Season

    Before NMFS implemented the temporary recreational fishing season 
for gag in 2023, the recreational season for gag was open each year 
from June 1 through December 31 (79 FR 24038, April 25, 2016). During 
the effective period of the temporary rule, the recreational fishing 
season opened on September 1 and was to close on November 10, 2023, 
unless NMFS projected the recreational ACL would be harvested prior to 
that date. On October 4, 2023, NMFS published a temporary rule in the 
Federal Register closing the recreational harvest of gag effective on 
October 19, 2023 (88 FR 68495).
    This final rule will modify the recreational fishing season for gag 
so the season begins each year on September 1. Unlike the season 
implemented by the temporary rule, Amendment 56 and this final rule do 
not establish a predetermined season closure date. Consistent with the 
changes to the AMs, NMFS will close the gag recreational season when 
landings reach the recreational ACT. NMFS will use the best data 
available to project the duration of the recreational season in 2024 
and in following years. NMFS expects to have better estimates of 
recreational fishing effort and catch of gag for a season beginning 
September 1 after data from 2023 are finalized. This should reduce the 
uncertainty in projecting an appropriate closure date for the 2024 
recreational fishing season. Once the recreational ACT for gag is 
projected to be met and harvest is closed, recreational fishing for gag 
would not resume before the end of the year because data would not be 
available in time for NMFS to determine whether landings did reach the 
ACT and potentially reopen harvest.

Management Measures in Amendment 56 That Will Not Be Codified in 
Regulations by This Final Rule

    In addition to the measures that will be codified in regulations 
through this final rule, Amendment 56 revises the MSY proxy, OY, and 
SDC for gag. Further, Amendment 56 revises the gag OFL, ABC, and sector 
allocations of the stock ACL.

Maximum Sustainable Yield, Optimum Yield, and Status Determination 
Criteria

    Based on the results of SEDAR 72, Amendment 56 revises MSY proxy, 
OY, and the SDC used to determine whether overfishing is occurring or 
the stock is overfished. The proxy for MSY is defined as the yield when 
fishing at F40SPR, where SPR is the ratio 
of SSB to its unfished state. The maximum fishing mortality threshold 
(MFMT) is equal to F40SPR. The minimum 
stock size threshold (MSST) is defined as 50 percent of the biomass at 
the new MSY proxy. The OY is conditional on the rebuilding plan, such 
that if the stock is under a rebuilding plan, OY is equal to the stock 
ACL; and if the stock is not under a rebuilding plan, OY is equal to 90 
percent of MSY or its proxy. Currently, MSY is defined in the FMP as F 
assuming FMAX, and the MFMT is FMAX. The MSST is 
defined as 50 percent of the biomass at FMAX. The OY is 
defined as 75 percent of the yield at FMAX. The changes to 
the MSY, OY, and SDC represent a more conservative approach to 
management that will rebuild the gag stock to a more robust size, which 
should be more resilient to episodic mortality from environmental 
factors including red tide and other harmful algal blooms, and 
sustainable levels of fishing mortality.

Stock Rebuilding Plan Timeline and Modification of OFL, ABC, and Sector 
Allocations

    Amendment 56 establishes a rebuilding plan and sets the rebuilding 
time for gag at 18 years, which is based on the amount of time the 
stock is expected to take to rebuild if fished at 75 percent of the MSY 
proxy (yield at F40SPR). Amendment 56 
evaluated two other rebuilding times: 11 years, which is the minimum 
time to rebuild in the absence of fishing mortality; and 22 years, 
which is twice the minimum time. In addition, the Council initially 
considered an alternative rebuilding time of 19 years, which is based 
on the minimum rebuilding time plus one generation time (8 years for 
gag). Because this option resulted in a rebuilding time similar to 
fishing at 75 percent of the MSY proxy, the Council removed this 
alternative from further consideration (Appendix C in Amendment 56). 
The Council also discussed whether to consider in more detail a 
rebuilding time between 11 years and 18 years. The Council decided not 
to add an additional alternative because a slightly shorter rebuilding 
time would provide minimal benefits to the stock but increase the 
negative impacts to fishing communities.
    Consistent with the rebuilding time recommended by the Council, 
Amendment 56 revises the OFL and ABC, and sets the stock ACL equal to 
the ABC. In addition, Amendment 56 revises the sector allocation 
percentages of the stock ACL from 39 percent commercial and 61 percent 
recreational to 35 percent commercial and 65 percent recreational, and 
revises the sector ACLs consistent with the revised allocations as 
stated earlier in this final rule. The OFL and ABC values by year from 
2023 through 2028 are shown in table 2. However, the OFL and ABC values 
in 2023 are not directly comparable to the OFLs and ABCs from 2024 
through 2028, because they are based, in part, on recreational landings 
estimates produced by the different surveys discussed earlier. Values 
in 2028 will continue for subsequent fishing years unless modified 
through another action by the Council or NMFS.

[[Page 40423]]



              Table 2--OFLs and ABCs Values by Year for Gag
------------------------------------------------------------------------
            Year               OFL in pounds (kg)    ABC in pounds (kg)
------------------------------------------------------------------------
2023........................             4,180,000             3,120,000
                                       (1,896,016)           (1,415,208)
2024........................     591,000 (268,073)     444,000 (201,395)
2025........................     805,000 (365,142)     615,000 (278,959)
2026........................     991,000 (449,510)     769,000 (348,813)
2027........................   1,200,000 (544,311)     943,000 (427,738)
2028........................   1,454,000 (659,523)   1,156,000 (524,353)
------------------------------------------------------------------------
Note: Values are displayed in gutted weight. Kg is kilograms. The ABC
  values also equal the stock ACL values for gag. Catch levels for 2028
  will continue after 2028 unless changed.

Administrative Change to Codified Text Not in Amendment 56

    NMFS also clarifies the regulations at 50 CFR 622.8(c) with this 
final rule. These regulations allow NMFS to re-open harvest for a stock 
in the same fishing year if data indicate that a quota or ACL was not 
reached as previously projected. Several stocks have ACTs that are also 
codified in regulation as quotas. However, some ACTs, such as the 
recreational ACT for gag, do not have corresponding quotas, and 
therefore may not appear to be included in the current authority to re-
open. NMFS is modifying the regulations in section 622.8(c) to provide 
a more general reference to allowable harvest levels. This will be 
consistent with the framework procedures in the relevant fishery 
management plans that allow NMFS to re-open harvest if additional data 
show that NMFS closed a season prematurely.

Comments and Responses

    NMFS received 33 comments in response to the notice of availability 
for Amendment 56, and 10 comments were received on the proposed rule. 
Comments ranged widely in scope, with some supporting Amendment 56 
without modification, while others urging disapproval. In general, 
recreational fishermen and groups supporting recreational fishing are 
in favor of the revised allocation percentages of the stock ACL for gag 
between the commercial and recreational sectors in Amendment 56 and 
this final rule. Commercial fishermen, commercial fishing 
organizations, and environmental groups generally supported maintaining 
the current allocation percentages of the stock ACL for gag between the 
commercial and recreational sectors. Some comments that NMFS received 
were outside the scope of this action. These comments included 
suggestions that the for-hire component of the recreational sector be 
moved to the commercial sector; concern that predation and depredation 
by sharks and goliath grouper are responsible for much of the decline 
in abundance of gag and reef fish abundance in general; concern of 
interspecies competition with red snapper and triggerfish on the reefs 
due to perceived inadequate management of these species; concern that 
fertilizer runoff is a causal factor in the decline of gag; NMFS should 
provide an annual health check to ensure the rebuilding plan for gag is 
on track; and NMFS and the Council should be managing the reef 
ecosystem as a whole rather than just by individual fish species. 
Comments specific to Amendment 56 and the proposed rule are grouped as 
appropriate and summarized below, each followed by NMFS' respective 
response.
    Comment 1: Several commenters did not support the proposed 
recreational season. Suggested alternatives included a June 1 start 
date; seasons from November through February, and October to January; 
or shorter, intermittent season openings (e.g., a season open a few 
weeks at a time throughout the summer and fall).
    Response: The Council recommended, and NMFS approved, the 
recreational season start date in Amendment 56 of September 1 to try to 
provide the longest season possible. The analysis in Amendment 56 
indicated that beginning the season on September 1 would result in the 
longest recreational fishing season of the alternatives considered. For 
example, initial estimates are that a June 1 start date would result in 
a recreational season lasting only 16 days. Regarding the suggested 
October through January season and November through February season, 
NMFS estimated that the high fishing effort and catch rates during 
October through December would result in fewer fishing days than a 
September 1 starting date. Shorter seasons, including intermittent 
season openings, are more likely to result in derby-like (race to fish) 
fishing, where greater effort and greater numbers of fish are harvested 
in a shorter period, and fishermen may decide to go out in more 
dangerous weather and sea conditions. The September season start date 
promotes safety of human life at sea to the extent practicable, 
consistent with National Standard 10 (NS 10) of the Magnuson-Stevens 
Act.
    Comment 2: The recreational season should be fixed, and NMFS should 
not prohibit harvest before the established closure date.
    Response: NMFS disagrees that it is appropriate to allow fishing 
until a fixed annual closure date. The Magnuson-Stevens Act requires 
AMs, which the NS 1 guidelines explain are management controls to 
prevent ACLs, including sector ACLs from being exceeded [50 CFR 
600.310(g)]. The recreational AMs for gag at 50 CFR 622.41(d)(2)(i) 
require NMFS to prohibit further harvest when NMFS estimates that 
recreational landings will reach or have reached the applicable catch 
limit. Allowing fishing to continue until a date certain after NMFS 
determines that landings would reach the catch limit would not be 
consistent with the AMs. In 2023, the Council recommended and NMFS 
implemented, a recreational fishing season for gag that opened on 
September 1 and was to close no later than November 10, for a maximum 
of 70 days. However, NMFS explained that if the best available data 
indicated that the catch limit would be harvested before the end of the 
70-day period, NMFS would implement a recreational closure prohibiting 
harvest of gag for the remainder of the fishing year. When NMFS 
analyzed in-season data that became available during the 2023 open 
season, NMFS determined that the 2023 ACL for gag had been harvested 
and closed the recreational season on October 19, 2023. Amendment 56 
and this final rule do not specify an end date to the recreational 
season, which has an opening date of September 1, 2024. Consistent with 
the AMs, NMFS will use the best scientific information available to 
determine when recreational harvest will reach the applicable catch 
limit and close the season on that date.

[[Page 40424]]

    Comment 3: Several commenters suggested closing commercial and 
recreational fishing for reef fish for a year or making gag catch and 
release only until the population rebuilds. Another commenter suggested 
further reductions to the gag catch limits for the commercial and 
recreational sectors.
    Response: As described in Amendment 56, the NMFS Southeast 
Fisheries Science Center produced models to predict the effect of 
reducing gag catch to different levels and estimate how quickly those 
reduced catch levels would rebuild the gag stock. The models estimated 
that even if there were no fishing mortality, including no dead 
discards, the stock would take 11 years to rebuild. Thus, implementing 
a total fishing closure for 1 year, including no catch and release 
fishing (and thus no landed catch), or further reducing landed catch 
limits would not be expected to result in a substantial reduction in 
the time needed to rebuild the stock. In addition, a complete closure 
of gag fishing would result in the loss of important fishery-dependent 
and biological information that help monitor stock rebuilding and in 
determining appropriate management of gag and other reef fish species. 
In addition, prohibiting fishing for 1 year or further reducing the 
catch limits would increase adverse social and economic effects on 
fishermen and communities that are reliant on gag. (See the response to 
Comment 4 for more information on the expected economic effects of 
Amendment 56 and this rule.)
    Comment 4: The low quotas are causing economic hardships for 
commercial fishermen who cannot pay their bills.
    Response: NMFS agrees that the significant reduction in the 
commercial quota for gag is expected to have adverse economic effects 
on commercial fishing businesses, and some commercial vessels and 
fishing businesses may not be earning an economic profit. However, the 
most recent available data does not indicate that the average 
commercial fishing vessel that harvests gag or the average commercial 
fishing business that possesses quota shares for gag is not able to 
cover its costs or earn an economic profit. Available data suggests 
that vessels harvesting gag earn economic profits equal to about 32 
percent of their annual gross revenue on average. Further, available 
data suggests that expected economic profits from the harvest of IFQ 
species (red snapper, groupers, and tilefishes) for all commercial 
fishing businesses that possess gag shares are at least $29.4 million. 
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 commercial fishing businesses that 
possess gag quota shares, the average annual expected economic profit 
per commercial fishing business is at least $64,620.
    Most of these expected economic profits (84 percent) are the result 
of owning IFQ quota shares for red snapper. Only approximately 1.7 
percent of their expected economic profits is thought to be due to the 
ownership of gag quota shares, and NMFS expects this rule to affect 
economic profits only from the ownership of gag shares. More 
specifically, the action to change the sector allocation, implement a 
rebuilding plan, and change the stock ACL will reduce the commercial 
quota from 939,000 lb to 212,000 lb (425,923 kg to 96,162 kg) on 
average from 2024 through 2028. However, average annual commercial 
landings of gag from 2017 through 2021 were only 492,401 lb (223,349 
kg), which is noticeably below the current commercial quota. Therefore, 
the expected average reduction in annual commercial landings is 280,401 
lb (127,188 kg), far less than the reduction in the commercial quota. 
In addition, the expected reduction in commercial landings is expected 
to initially increase the average ex-vessel price of gag from $6.10 per 
lb to $7.78 per lb in 2024, and then gradually decrease to $6.96 per lb 
in 2028. This increase in the ex-vessel price is expected to partially 
offset the adverse effects of the expected landings reduction. Thus, 
the expected reduction in ex-vessel revenue for gag on average is 
approximately $1.57 million per year. Given an average annual 
allocation price of $1.03 per lb for gag, the expected reduction in 
commercial landings of gag is expected to reduce economic profits to 
these commercial fishing businesses by about $288,813, or by 
approximately $635 per commercial fishing business. Thus, NMFS expects 
the reduction in economic profits to be around 1 percent on average per 
commercial fishing business as a result of the action to change the 
sector allocation, implement a rebuilding plan, and change the stock 
ACL. NMFS does not expect a 1 percent reduction in economic profits to 
cause an economic hardship for the average commercial fishing business 
that possesses quota shares for gag.
    Comment 5: The gag population is healthy. The catch level 
reductions for gag are unnecessary.
    Response: NMFS disagrees that the reduction in the gag catch limits 
are unnecessary. The most recent stock assessment for gag (SEDAR 72), 
completed in 2021, is the best scientific information available, 
indicates that the gag stock is overfished and undergoing overfishing, 
and that a reduction in the catch limits is necessary to rebuild the 
stock. The assessment included a multi-day data review workshop and 
several webinars, was peer reviewed, and was reviewed by the Council's 
SSC. NMFS recognizes that the abundance of gag varies across locations. 
However, 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 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 
catch limits of gag. In the last 5 years covered by SEDAR 72 (2015 
through 2019), the combined commercial and recreational harvest 
exceeded 50 percent of the gag stock ACL only once (2016).
    Comment 6: Recreational data used in making decisions for gag 
management, such as the assessment and catch-per-unit-effort 
calculations, have too much error and should not be used. NMFS should 
only use recreational data that have less than 25 percent standard 
error.
    Response: The Magnuson-Stevens Act requires that fishery 
conservation and management decisions be based on best scientific 
information available. The percent standard error associated with an 
estimate reflects the uncertainty in that estimate. Although NMFS 
recognizes that reducing standard error in recreational catch estimates 
for gag would be beneficial, the estimates for recreational catch that 
are used in Amendment 56 are based on best scientific information 
available, and are thus appropriate to be used in management. Sometimes 
the data determined to be the best scientific information available do 
not have a PSE of less than 25 percent, but the data are necessary and 
appropriate to be used for management. NMFS sets catch levels (such as 
ABC and ACL) to address both scientific and management uncertainties. 
As newer and better data become available, NMFS will update analyses 
and methodologies to reduce

[[Page 40425]]

uncertainty in future management decisions. However, the management 
measures implemented through this final rule are based on best 
scientific information available at the time they were developed.
    Comment 7: Gag shortages are caused by man-made red tide caused by 
pollution. Red tides are one of the primary drivers of mortality and 
the cause of overfishing. Red tide is not sufficiently addressed in the 
management actions within Amendment 56 as required by the Magnuson-
Stevens Act and the NS 1 guidelines. In addition, the amendment should 
include management actions that address climate change impacts. The 
climate vulnerability analysis (CVA) indicates that gag has a high 
overall vulnerability to climate change impacts, yet no management 
considerations are suggested to alleviate the risks. An MSY proxy of 40 
to 50 percent of the SPR is a more appropriate baseline for 
conservation of the stock but does not directly mitigate impacts from 
environmental conditions and therefore is not a sufficient management 
action to address the environmental conditions that are contributing to 
overfishing.
    Response: NMFS recognizes that red tide is one of the primary 
drivers of mortality for gag, and that gag are highly susceptible to 
negative impacts of climate change (as indicated by the CVA for gag). 
Red tide has occurred throughout the known history of the Gulf, and 
while not man-made, there is evidence suggesting that human induced 
factors, including pollution, may increase the intensity of red tide 
events. Still, despite extensive research on causes and factors 
exacerbating red tide events, much is unknown about these events and 
how to reduce the negative effects they have on the environment and, 
specifically, on gag. Further, the timing, location, and intensity of 
red tide is intermittent, not predictable, and highly variable, as are 
their effects on gag. For example, while red tide can be associated 
with large mortality events for gag, it is also often associated with 
higher than normal recruitment of gag in the following year (presumably 
due to density dependence mechanisms of gag ecology, such as less 
competition for food or ideal habitat).
    Regarding climate change, the CVA for gag identified the 
sensitivities and exposures that contribute to the stock's high 
vulnerability. However, the analysis recognized that few studies have 
examined the effect of climate factors on the population productivity 
and distribution of gag, and that it is unclear how any changes will 
impact abundance and distribution of the stock. Thus, although NMFS is 
concerned about the increasing negative impacts of climate change on 
gag as estimated by the CVA and how these factors, in addition to red 
tide, may negatively affect gag population dynamics in the future, NMFS 
has determined that Amendment 56 includes measures that sufficiently 
address the uncertainty related to these impacts.
    The SEDAR 72 gag stock assessment directly considered the expected 
mortality associated with red tide but NMFS models do not account for 
the increased recruitment associated with these events due to the high 
level of uncertainty associated with this process. This is because 
while increased recruitment after a red tide event is predictable, the 
magnitude of the increase is not.
    Despite the uncertainty, Amendment 56 contains management changes 
to take a more precautionary approach, such as using rebuilding catch 
projections that are based on the SSB for males and females combined as 
opposed to just female SSB, and modifying the MSY proxy to be 
F40SPR. These changes are expected to 
help mitigate the adverse effects of both red tide events and climate 
change by directly accounting for male SSB, which has been recognized 
as a limitation on rebuilding, and rebuilding the stock to a larger 
size stock size based on the revised MSY proxy. NMFS does not agree 
that the MSY proxy should be set at a more conservative level. As 
explained in Section 1.1 of Amendment 56, the SSC recommended an MSY 
proxy of F40SPR based on gag's 
susceptibility to episodic mortality from red tide and guidance from a 
2019 study by Harford et al. The SSC concluded that an MSY proxy of 
F40SPR would allow the stock to rebuild 
to a more robust level of SSB making it more resilient to environmental 
influences like red tide and to changes in fishing mortality. NMFS 
agrees with the SSC that an MSY of F40SPR 
is sufficiently conservative to address current and foreseeable 
mortality due to fishing and environmental factors.
    Comment 8: Amendment 56 and this final rule violate section 
303(a)(15) of the Magnuson-Stevens Act, which requires hard catch 
limits and AMs that will ensure that ACLs will not be exceeded and 
overfishing will not occur in the fishery. There is no certainty that 
the measures included in Amendment 56 and the proposed rule will end 
overfishing. While Amendment 56 includes a 20 percent buffer between 
the recreational ACL and ACT, the ACT is not an effective recreational 
AM because it does little to address discards either in or out of 
season, and targeted recreational catch is not driving overfishing. 
Further, by admitting that an exact accounting of total gag mortality 
cannot be determined at this time, NMFS concedes that Amendment 56 does 
not include legally sufficient ACLs and AMs.
    Response: Amendment 56 and the FMP are consistent with the 
requirements of section 303(a)(15) of the Magnuson-Stevens Act, which 
requires the FMP to include ACLs, at a level such that overfishing does 
not occur, and AMs. With respect to discarded fish, there is no 
requirement in this provision to separately specify or monitor discard 
mortality. The NS 1 guidelines define catch as including both landed 
fish and dead discards [50 CFR 600.310(f)(1)(i)]. However, the NS 1 
guidelines also state that the ABC, on which the ACLs are based, may be 
expressed in terms of landings as long as estimates of bycatch and any 
other fishing mortality not accounted for in the landings are 
incorporated into the determination of ABC [50 CFR 600.310(f)(3)(i)]. 
The OFL, ABC, and ACLs specified in Amendment 56 are derived from SEDAR 
72 SRFS Run, which accounted for dead discards estimates that were 
derived from the best scientific information available. Thus, an exact 
accounting of total mortality is not necessary to apply the AMs to 
constrain harvest to the ACLs, which are expressed in terms of landed 
fish only. In addition, as explained in response to Comment 10, NMFS 
recognizes that a significant portion of past gag recreational catch 
occurred when the recreational season is closed, and is thus discarded, 
but NMFS expects the significant reduction in the stock ACL as well as 
the larger buffer between the recreational ACL and ACT, to result in 
much lower overall gag mortality as required by the rebuilding plan.
    Comment 9: The rebuilding plan is legally insufficient because 
there are no interim measures to monitor the total mortality from 
discards, as only landings are used for management in non-assessment 
years.
    Response: NMFS disagrees that the rebuilding plan is not legally 
sufficient. It is unnecessary to monitor discards directly because the 
rebuilding catch limits are expressed as landed fish. Discard mortality 
is incorporated into the determination of these catch limits through 
the SEDAR 72 SRFS Run, which is consistent with the best scientific 
information available.
    Comment 10: The management measures in Amendment 56 and the 
proposed rule are insufficient to provide at least a 50 percent 
probability of

[[Page 40426]]

rebuilding the gag stock because they do not adequately address discard 
mortality resulting from recreational sector bycatch. The projections 
from the stock assessment assume that discards will be reduced 
proportionally to landed catch but this assumption has been proven 
false. The private recreational sector discards an estimated 90 percent 
of gag that are caught, suggesting that the majority of gag 
interactions occur as non-target interactions. The actions in the 
amendment do not reduce discards, and Amendment 56 suggests these 
actions are likely to increase discards, because under the rebuilding 
plan, increased regulatory discarding of gag would occur during any 
open fishing season for co-occurring target species (e.g., red grouper, 
red snapper). In order to reduce discards to appropriate levels, 
fishery managers must rely on the improbable scenario that individual 
anglers take action to intentionally avoid gag and therefore reduce 
their collective discard rates.
    Response: NMFS disagrees that the measures being implemented do not 
provide at least a 50 percent probability of rebuilding the stock. 
While NMFS recognizes that a significant portion of past gag 
recreational catch occurred when the recreational season is closed and, 
therefore, was discarded, the basis for the commenter's assumption that 
the majority of gag interactions occur as non-target interactions is 
unclear. Further, NMFS does not agree that this means imposing new 
stricter catch limits will not rebuild the stock as projected.
    With respect to the recreational sector, this rule will further 
reduce the allowable harvest by increasing the buffer between the 
recreational ACL and the ACT by 10 percent more than necessary to 
account for the uncertainty in constraining recreational harvest. This 
additional 10 percent reduction in recreational harvest will further 
reduce mortality and increase the probability of rebuilding.
    NMFS also disagrees that the assumption that discards will be 
reduced proportionally to landed catch ``has been proven false.'' NMFS 
does not have comparable catch or effort data to test this assumption 
because of the lower catch limits and changes in the dates of the 
recreational season. Thus, NMFS cannot precisely predict the effects of 
the management measures in this final rule until we have appropriate 
data, which will likely be after a few years of rebuilding (including 
the changes in recruitment, etc.) has been completed. Further, many 
factors affect angler behavior and discards, including changes in the 
number of fish recruiting (entering) the fishery, open and closed 
seasons for other reef fish species, and prevailing economic conditions 
which can affect the amount of angler fishing effort and catch and 
discard rates.
    NMFS expects the change to a September 1 opening date for the 
recreational season to result in recreational fishermen targeting gag 
in shallower and colder waters than the previous season, which should 
further increase survivability of released fish and result in 
additional escapement contributing to rebuilding the stock. Consistent 
with section 304(e)(7) of the Magnuson-Stevens Act, NMFS will review 
rebuilding plan progress. If NMFS determines that adequate progress is 
not being made because fishing mortality (both landings and discards) 
exceeds the level necessary to rebuild the gag stock, NMFS will notify 
the Council and recommend further conservation and management measures, 
including potential development and implementation of a new or revised 
rebuilding plan.
    Comment 11: The rebuilding plan is legally insufficient because the 
rebuilding projections (and increases in the ACL) are dependent on the 
assumption that the sectors will operate as they have in recent years, 
which we know to be a false assumption.
    Response: The stock assessment model requires assumptions about 
future fishing behavior to produce appropriate catch limit 
recommendations. The SEDAR 72 SRFS Run assessment projections assume 
that selectivity, discarding, and retention were the same as the most 
recent year, which was 2019. This is the best available scientific 
information at the time those projections were developed. NMFS does not 
have any data to determine the extent or magnitude of any potential 
changes to fishing practices. As new data become available on any 
changes in fishing practices, NMFS can revisit the assessment 
assumptions as appropriate. NMFS can also use any new data to improve 
in-season management. For example, NMFS recognizes that changing the 
start date of the recreational fishing season from June 1 to September 
1 is likely to change how the recreational sector operates both during 
and outside of the open season. While the scope of the effects from the 
change are not well understood, NMFS is in the process of fully 
analyzing 2023 data, during which the gag catch limits were reduced and 
the recreational season started on September 1. Since the 2023 interim 
regulations are more directly comparable to those being implemented in 
Amendment 56 and the final rule, NMFS will be more able to accurately 
predict and anticipate factors such as recreational fishing effort, 
harvest rates, in-season and out-of-season bycatch rates, and other 
variables that may result in differential effects to the gag 
population. Thus, as more appropriate and comparable data are 
collected, NMFS has the ability to mitigate negative impacts and can 
take steps to ensure the schedule to rebuild the gag stock is 
maintained.
    Comment 12: Amendment 56 is insufficient to provide at least a 50 
percent probability of rebuilding success because it would increase the 
ACLs each year after 2024. By 2027, the commercial ACL will be only 
approximately 50 percent of 2022 commercial landings but the 
recreational ACL will be greater than 2022 recreational landings as 
estimated by MRIP-CHTS. NMFS should implement a precautionary constant 
catch approach for gag that would maintain catch at baseline levels and 
would not proceed with increases until there are tangible signs of 
stock improvement. A constant catch approach paired with more frequent 
interim assessments and monitoring of discarding and red tide trends 
would add baseline protection to this highly vulnerable stock and 
improve the likelihood of rebuilding success.
    Response: NMFS disagrees that because the catch limits for gag 
increase over time, the probability of rebuilding success will be less 
than 50 percent and that a more precautionary constant catch approach 
is appropriate. First, the rebuilding plan is based on the stock 
assessment, which was informed by the more conservative MSY proxy of 
F40SPR and the recommendations from the 
Council and SSC that include the increases to the commercial and 
recreational ACLs adopted in this final rule. Second, NMFS will set the 
recreational season length based on when the recreational ACT is 
projected to be met as specified in the revised AMs. It is 
inappropriate to compare the MRIP-CHTS recreational landings estimate 
from 2022 to the 2027 recreational ACT, which is based in part on SRFS 
data. Using consistent recreational data from SRFS, the recreational 
ACT increases from 230,000 lb (104,326 kg) in 2024 to 600,000 lb 
(272,155 kg) in 2028, which is well below average recreational landings 
from 2017 through 2021, which were over 1.2 million lb (544,311 kg). 
Even if the ACL were the management target, the recreational ACL for 
2028 is only 751,000 lb (340,648 kg), which is approximately 63 percent 
less than the

[[Page 40427]]

1.2 million-lb (544,311-kg) average. Finally, a constant catch approach 
that keeps the stock ACL at the 2024 baseline level would increase the 
adverse economic and social effects on fishery participants and fishing 
communities, without significant benefits to stock. As explained in 
Amendment 56, a rebuilding plan that is based on no fishing mortality 
would be expected to rebuild the stock in 11 years, as opposed to the 
18-year rebuilding plan implemented in this final rule. Thus, a 
constant catch rebuilding plan that keeps the 2024 stock ACL of 444,000 
lb (201,395 kg) is unlikely to result in a significant reduction of the 
projected rebuilding time but would increase the negative social and 
economic impacts as discussed in Chapters 4, 5, and 6 of Amendment 56. 
This would not be consistent with section 304(e)(4) of the Magnuson-
Stevens Act, which requires that the rebuilding period for an 
overfished stock be as short as time possible, taking into account both 
the biology of the stock and the needs of fishing communities or NS 8, 
which requires, in pertinent part, that conservation and management 
measures minimize adverse economic impacts on such fishing communities 
to the extent practicable.
    Comment 13: Amendment 56 is insufficient to provide at least a 50 
percent probability of rebuilding success because it fails to address 
the key biological vulnerabilities of the gag stock including reducing 
mortality of older, male fish and improving male recruitment 
(escapement of females and transitioning males) from nearshore reefs so 
that a greater percentage can become older and transition to male.
    Response: NMFS disagrees with the premise that male gag mortality 
and recruitment need to be addressed directly for the rebuilding plan 
to have a least a 50 percent chance of success. Amendment 56 includes 
several measures that address concerns related to male gag mortality 
and recruitment. A long history of harvesting large males and large 
fecund females is a large part of the issue with the current sex ratio 
of gag. Amendment 56 substantially reduces allowable harvest of gag for 
both the commercial and recreational sectors, which is expected to 
reduce overall mortality of gag, including that of older adult male 
fish, and increase male recruitment. In addition, the discard mortality 
rate is relatively low in the recreational sector due to the generally 
shallower depth of fishing when compared to the commercial sector, so 
there would be reduced mortality from reduced catch limits contributing 
to rebuilding the stock in the long run. Further, NMFS expects the 
commercial sector to be able to avoid large individuals specifically 
due to more selective fishing practices as they manage their limited 
individual fishing quota allocations, which should result in 
improvements in the stock by reducing pressure on these large gag. 
Reduced catch limits are also expected to result in greater recruitment 
of male gag because they will result in more fish in the population, 
and thus more fish will be available to move to deeper offshore waters 
to transition to male.
    In addition to the lower catch limits, the change in the 
recreational fishing season from a June 1 start date to a September 1 
start date is expected to result in reduced harvest of male gag, which 
are found almost exclusively in deep water. Fishermen have often 
reported at Council meetings that gag feed more aggressively when water 
temperatures are cooler, and particularly when nearshore waters are 
cooler. Further, studies have shown that discard mortality is lower 
when fish are caught and released into cool surface water compared to 
warm surface water. Thus, capturing and releasing gag during summer 
months, especially from deeper water where barotrauma becomes an 
increasingly influential factor on discard mortality for gag, is likely 
to result in increased discard mortality compared to capturing and 
releasing gag during comparatively cooler fall and winter months. 
Because directed fishing effort for gag in summer months is typically 
conducted in greater average depths than in fall months, the 
probability of harvesting or discarding dead a male gag is higher by 
comparison in these summer months. Therefore, changing to a September 
opening of the recreational season is expected to contribute to a 
reduced mortality of adult male gag.
    Comment 14: Amendment 56 violates Magnuson-Stevens Act NS 9 because 
it allocates fish to the recreational sector and away from the 
commercial sector. NMFS data estimates that the commercial sector was 
responsible for less than 1 percent of all gag discards between 1993 
and 2019. Choosing an alternative that provides a lower catch limit to 
the recreational sector and consequently provides a higher gag stock 
ACL would allow for less waste, more landings, and minimize discards. 
In addition, the Bycatch Practicability Analyses (BPA) in Amendment 56 
does not analyze whether the FMP contains measures to reduce bycatch to 
the extent practicable, and has no discussion of other measures that 
could reduce bycatch or bycatch mortality, for example, whether 
requiring larger circle hooks could reduce catch of smaller grouper; 
and time or area closures and the effects on bycatch. Other significant 
discard analyses, including projections, should have been considered 
and included in the rebuilding plan. Examples include projections at 
higher and lower discard rates than is assumed, higher uncertainty, 
etc., to identify at what level of discarding may be occurring on an 
annual basis. A thorough discard analysis is critical to ensuring the 
proposed management measures will end overfishing and rebuild the 
stock. Additional analysis should also have been done to minimize out-
of-season discarding through other measures, such as spatial closures 
or discarding rates during other species' open seasons, and the ABC 
should reflect any uncertainty from these analyses.
    Response: NS 9 requires that conservation and management measures, 
``to the extent practicable: (1) minimize bycatch; and (2) to the 
extent bycatch cannot be avoided, minimize the mortality of such 
bycatch.'' Conservation and management measures must also be consistent 
with all of the other National Standards and maximization of net 
benefits to the Nation. As the National Standard guidelines explain, 10 
factors should be considered when determining consistency with NS 9. 
Some of these factors include population effects for the bycatch 
species; changes in the economic, social, or cultural value of fishing 
activities, and non-consumptive uses of fishery resources; changes in 
the distribution of benefits and costs; and social effects [50 CFR 
600.305(d)(3)]. Thus, NS 9 does not require that management measures 
result in the greatest stock size as the comment appears to suggest. 
Rather, NMFS must consider and account for the different economic, 
social, and cultural objectives of the commercial and recreational 
sectors when determining whether management measures minimize bycatch 
and bycatch mortality to the extent practicable. Participants in the 
commercial sector tend to seek to maximize harvest and efficiency while 
participants in the recreational sector tend to seek to maximize access 
and fishing opportunities. The sectors operate differently to achieve 
those objectives, and these differences impact fishing behavior, which 
generally results in more discards by the recreational sector.
    The BPA (Appendix H in Amendment 56) provides information about gag 
bycatch and bycatch mortality, and discusses the 10 factors in the NS 9

[[Page 40428]]

guidelines at 50 CFR 600.350(d)(3), which include summaries of the 
biological, economic, and social effects presented in Chapter 4 of 
Amendment 56. As noted in Section 4.2.2 of Amendment 56, the impacts to 
the gag stock are similar under both allocation alternatives because 
the overfishing limits are based on a fixed level of fishing mortality. 
The recreational sector is responsible for more discards and more dead 
discards than the commercial sector. Therefore, Preferred Alternative 3 
(Preferred Option 2b) in Action 2, which changes the allocation 
percentages, allows for slightly less total harvest than Alternative 2 
(Option 2b), which would retain the current allocation percentages, 
reducing the stock ACL by approximately 9,000 lb (4,082 kg) in 2024 
(about 2 percent). However, NMFS expects both Alternative 2 and 
Alternative 3 in Action 2 to reduce discards when compared to 
Alternative 1 (no action) due to the substantial reduction in catch 
limits, and the numbers and rates of discards and discard mortality 
between Alternatives 2 and 3 are expected to be similar. NMFS also 
expects an additional reduction in recreational discards associated 
with directed fishing as a result of the increase in the buffer between 
the recreational ACL and ACT from 10.25 to 20 percent, and the 
requirement that NMFS prohibit recreational harvest when the ACT is 
projected to be met.
    With respect to the economic and social effects on both the 
commercial and recreational sectors, the expected negative impacts are 
a result of the need to implement a rebuilding plan that requires a 
significant reduction in the total allowable harvest of gag (see 
Amendment 56 BPA Criterion 6, 8, 9, and 10, and Sections 4.2.3 and 
4.2.4). The new allocation percentages result in an increase in those 
negative effects for the commercial sector and a decrease in those 
effects for the recreational sector. However, the revised allocation 
represents the historical harvest of the two sectors during the same 
time period as the original allocation (1986 through 2005) updated only 
to reflect that there has been a change in the survey used to estimate 
recreational landings. Given the need to account for the different 
objectives of the commercial and recreational sectors, and provide for 
the greatest overall benefit to the Nation with respect to both food 
production and recreational opportunities NMFS has determined that gag 
bycatch and bycatch mortality are minimized to the extent practicable 
in both the FMP and Amendment 56.
    While NMFS agrees that additional research and analyses could be 
conducted in the future to determine more precise impacts that bycatch 
may have on the catch projections or if there are other measures that 
could further reduce gag bycatch and bycatch mortality, NMFS is 
required to implement a rebuilding for gag within 2 years of 
notification to the Council that gag is overfished and, consistent with 
NS 2, NMFS used the best scientific information available to develop 
the rebuilding plan for gag and address the various requirements of the 
Magnus-Stevens Act, including NS 9. As discussed at the Council's 
January 2024 meeting, NMFS and the Council intend to review additional 
data and analyses to determine whether additional measures to reduce 
bycatch of gag (e.g., time or area closures) are practicable. The 
Council initially considered including additional measures, such as 
increasing the number of area closures, to Amendment 56 but determined 
that it was not practicable to do so because before implementing new 
time or area closures, it was necessary to gather further data and 
analysis was needed on the impacts of the current closed areas (i.e., 
Madison-Swanson and Steamboat-Lumps marine protected areas). In 
addition, after the rebuilding plan has been in effect for a few years, 
it may be possible to perform alternative stock assessment analyses 
that incorporate new information on discards in the recreational sector 
and use the results from those additional analyses to inform the 
bycatch practicability analysis.
    Comment 15: NMFS needs to clarify how dead discards are accounted 
for in setting the MSY and OY.
    Response: Dead discards are accounted for in specifying both the 
MSY and OY for the gag stock through the stock assessment. The NS 1 
guidelines define MSY as ``the largest long-term average catch or yield 
that can be taken from a stock or stock complex under prevailing 
ecological, environmental conditions and fishery technological 
characteristics (e.g., gear selectivity), and the distribution of catch 
among fleets.'' 50 CFR 600.310(e)(1)(i)(A). OY is the long-term average 
desired yield from a stock that provides ``the greatest overall benefit 
to the Nation, particularly with respect to food production and 
recreational opportunities,'' is reduced from the MSY to take into 
account economic, social, and ecological factors, and in the case of an 
overfished fishery, provides for rebuilding to a level consistent with 
producing the MSY in such fishery. 16 U.S.C. 1802(33); see also 50 CFR 
600.310(e)(3)(i). Amendment 56 defines MSY as the yield when fishing at 
F40%SPR and defines OY based on rebuilding status, such 
that: if the stock is under a rebuilding plan, OY is equal to the stock 
ACL; if the stock is not under a rebuilding plan, OY is equal to 90 
percent of MSY or its proxy. The catch projections produced from the 
SEDAR 72 SRFS Run are based on the MSY proxy specified in Amendment 56 
and account for discard mortality. As explained in Amendment 56, during 
the rebuilding plan OY is set equal to the stock ACL because this is 
the amount of fish that, over the rebuilding time, would allow the 
stock to rebuild to a level that is consistent with producing MSY. When 
rebuilding is complete the OY will be set at 90 percent of the MSY or 
proxy, which is consistent with the OY set for other reef fish species 
in Amendment 48 to the FMP (87 FR 34811 June 8, 2022). As explained in 
Amendment 48, an OY of 90 percent of the MSY or proxy is an 
intermediate level (between 85 and 95 percent of the MSY of proxy) that 
balances the need to protect the stock and allow for both food 
production and recreational opportunities. After the stock rebuilds and 
if new information indicates that that this OY may not be appropriate, 
NMFS and the Council can consider that new information and whether to 
revise the OY.
    Comment 16: Amendment 56 will cause hardship to recreational 
fishermen but will not hurt commercial fishermen. Recreational fishing 
seasons are getting shorter, as demonstrated by both the recreational 
gag and red grouper seasons in 2023. However, commercial harvest goes 
on unabated. Commercial and recreational regulations should be the 
same.
    Response: NMFS disagrees that it is appropriate to have the same 
regulations for commercial and recreational fishing, and that Amendment 
56 only negatively affects recreational anglers. Amendment 56 and this 
final rule will reduce the commercial and recreational ACLs for gag for 
each sector to levels substantially lower than average landings from 
2017 through 2021. In addition, although both the commercial and 
recreational sectors have failed to catch or even approach their 
respective catch limits in recent years, the percent reduction for each 
sector ACL in this rule compared to their respective recent landings is 
similar. Commercial fishing is managed differently than recreational 
fishing to address the economic, social, and cultural goals of each 
sector. Recreational fishing is managed primarily with bag limits, size 
limits, and seasons to allow the maximum number of participants the 
opportunity

[[Page 40429]]

to fish. The commercial sector operates under an IFQ program, which 
allows commercial fishermen to harvest their share of the gag quota at 
any time during the year. So, unlike the recreational sector, there is 
no closed commercial season. Because the IFQ program gives individual 
commercial fishermen the flexibility to fish any time during the year, 
it prevents ``derby-like'' fishing that can create unsafe fishing 
conditions as fishermen race to catch as many fish as possible before a 
catch limit is reached. In addition, the IFQ program allows fishermen 
to supply fish over the course of the season, which allows for 
consumers to be able to purchase the fish throughout the year. However, 
regardless of when they fish during the year, fishing by both sectors 
is constrained by their respective annual harvest limits.
    Comment 17: Amendment 56 and this final rule violate NS 4 of the 
Magnuson-Stevens Act because they allocate fish away from the 
commercial sector to account for the discards in the recreational 
sector, which is not fair and equitable and does not promote 
conservation.
    Response: NMFS has determined that Amendment 56 and the final rule 
are fair and equitable and reasonably calculated to promote 
conservation, consistent with NS 4. The Council initially reviewed 
allocation options based on six different times series of landings 
data, but removed some options from further consideration because they 
resulted in relatively minor differences. In Amendment 56, the Council 
evaluated retaining the existing allocation percentages and updating 
those percentages using the SRFS recreational landings estimates 
calibrated to the same time series (1986 through 2005) that was used in 
setting the original allocation percentages. The Council determined, 
and NMFS agrees, that updating the allocation percentages using the 
SRFS calibrated recreational landings results is fair and equitable 
because it accounts for the transition to using SRFS data to estimate 
recreational catch while maintain the same referenced time series.
    As explained in response to Comment 14, recreational fishing for 
gag (and many other reef fish species) typically involves higher 
numbers of discards than for the commercial sector, and the sector 
allocation percentages approved in Amendment 56 (i.e., Alternative 3, 
Option 2b in Action 2) reduce the total ACL by approximately 9,000 lb 
(4,082 kg) when compared to the percentages proposed in Alternative 2b. 
However, the OY includes both recreational opportunities and food 
production, and the commercial and recreational sectors have different 
objectives, and operate differently to achieve those objectives. The 
Council and NMFS must consider and account for these differences when 
determining whether an allocation fairly and equitably allocates 
fishing privileges and provides the greatest overall benefit to the 
Nation with respect to both food production and recreational 
opportunities. Further, the large reduction in the total allowable 
harvest in Amendment 56 is not a result of the shift in sector 
allocation of the stock ACL but the result of SEDAR 72 and the 
determination that the stock is overfished and undergoing overfishing.
    Comment 18: The Council failed to follow its allocation review 
policy by combining the allocation decision with decisions related to 
catch limits and rebuilding times. The Council's allocation policy 
requires a comprehensive allocation review and an after-the-fact 
determination that Amendment 56 includes that review is not sufficient. 
Further, the Council and NMFS suggest that the ``sector allocation 
ratio in Alternative 2 results in a de facto reallocation to the 
commercial sector of approximately 4 percent,'' but no allocation 
review was performed to evaluate this reallocation. If de facto 
reallocation arguments are to be used as justifications for management 
changes, then their use must be consistent with all NMFS and Gulf 
Council allocation policies and guidance.
    Response: The process for evaluating and changing the commercial-
recreational allocation percentages through Amendment 56 was consistent 
with NMFS and Gulf Council policies and guidance. The Council's 
Allocation Review Guidelines address the situation that resulted in 
Amendment 56, recognizing that, ``[i]n some instances, e.g., following 
a stock assessment, the Council may elect to skip a formal allocation 
review and directly proceed with the development of an FMP amendment. 
In these cases, these guidelines would not apply.'' The most recent 
stock assessment (SEDAR 72) indicated that the gag stock was overfished 
and undergoing overfishing, and incorporated the updated SRFS 
recreational catch estimates. Therefore, the Council and NMFS used 
Amendment 56 to develop a rebuilding plan and review the sector 
allocations to determine whether an adjustment was appropriate. The 
review incorporated into Amendment 56 included an evaluation of 
allocation options, and all of the relevant ecological, economic, 
social, and performance factors identified in the relevant Council and 
NMFS polices and guidance, including the Council's Allocation Policy 
and NMFS' Procedural Directive 01-119-01.
    Comment 19: Automatic reallocation based on SRFS is arbitrary, and 
retrospectively adjusting historical landings estimates from 30 years 
ago is fraught with uncertainty. Allocation decisions should not be 
based on SRFS data until the accuracy of the data is resolved.
    Response: NMFS disagrees that there was an automatic reallocation 
and that is not appropriate to use SRFS data to adjust the commercial-
recreational allocation percentages in Amendment 56. Amendment 56 
included an alternative to retain the current allocation percentages 
and an alternative to adjust those percentages using SRFS calibrated 
landings. As explained in response to Comment 17, the Council 
recommended, and NMFS agrees, that it is appropriate to adjust the 
allocation to 65 percent recreational: 35 percent commercial based on 
the same 1986 through 2005 time series with updated SRFS landings 
estimates. Although there is uncertainty related to the SRFS 
calibration, as explained previously, this was reviewed and approved by 
peer-review through the NMFS Office of Science and Technology in May 
2022. NMFS has determined that SRFS landings estimates are best 
scientific information available, and thus that it was appropriate to 
use these estimates to inform the allocation decision recommended by 
the Council in Amendment 56 and being implemented in this final rule.
    Comment 20: Revised estimates of recreational landings based on 
SRFS do not provide all of the necessary information for allocation 
decisions. Had SRFS been used initially in the stock assessment, it 
would have generated higher OFLs, ABCs, and ACLs for both sectors, 
allowing the commercial sector to increase its harvest.
    Response: NMFS disagrees that it is appropriate to speculate on 
possible changes to commercial landings and the commercial-recreational 
allocation had SRFS data been available to use in prior stock 
assessments. NS 2 requires that management measures be based on the 
best scientific data available and calibrated SRFS recreational catch 
estimates were not available to use prior to the SEDAR 72 SRFS Update. 
Even if it were appropriate and correct to assume that the stock ACL 
would have been higher had this new data been available previously, it 
does not automatically follow that commercial harvest would have been 
larger. As noted in the Regulatory Flexibility Act

[[Page 40430]]

Analysis in Chapter 6 of Amendment 56, the average commercial landings 
of gag from 2017 through 2021 were only 492,401 lb (223,349 kg), well 
below the commercial quota of 939,000 lb (425,923 kg).
    Comment 21: The Council passed a motion to delay implementing new 
use of FES until the pilot study examining issues with the design of 
FES has been completed and deemed consistent with best scientific 
information available. If this analysis was done for SRFS, it is 
reasonable to assume the same result, so proceeding with reallocation 
in Amendment 56 is premature and inconsistent with recent Council 
actions.
    Response: At its January 2024 meeting, the Council passed a motion 
to delay decisions about whether to change allocations of ACLs between 
the commercial and recreational sectors that were based on MRIP-FES 
data. SEDAR 72 and Amendment 56 both use recreational landings data 
based on SRFS to recommend catch levels for the recreational harvest of 
gag. NMFS disagrees that approving and implementing Amendment 56 is 
inconsistent with the Council's decision to delay potential actions 
that involve commercial-recreational allocations and use data generated 
from MRIP-FES or that it is reasonable to assume that the results of 
the pilot studies are applicable to SRFS. The MRIP-FES collects 
recreational trip information for specified 2-month periods, and over 
the course of the previous year. The Council's motion was in response 
to the results of one pilot study conducted by the NMFS Office of 
Science and Technology that evaluated a potential source of bias in 
MRIP-FES effort questions; specifically, the order in which two 
questions were presented. This pilot study found that estimates for 
private angler effort were generally 30 to 40 percent lower for shore 
and private boat modes than produced from the current design. However, 
the study was conducted over a relatively short period (6 months) using 
a smaller sample size than the full FES sample. NMFS is currently 
conducting a larger scale follow-up study. It is unknown whether this 
larger scale study will produce the same results as the initial pilot 
study. Information about the study, next steps, and the anticipated 
timeline can be found at https://www.fisheries.noaa.gov/recreational-fishing-data/fishing-effort-survey-research-and-improvements.
    The Council's motion reflects the Council's intention to defer 
recommendations related to any changes to commercial-recreational 
allocations that incorporate MRIP-FES data until the ongoing research 
to determine the impacts of these changes to the survey is complete. 
The motion is not relevant to NMFS' review and implementation of the 
updated allocation percentages in Amendment 56, which are based in part 
on the calibrated time series of SRFS estimates of private recreational 
effort as incorporated into the SEDAR 72 SRFS Run and are separate from 
MRIP-FES. SRFS creates a universe of reef fish anglers by requiring 
anyone who harvests certain reef fish from a private vessel in Florida 
to obtain the State Reef Fish Angler designation, which, makes an 
angler eligible to receive a questionnaire in the mail that asks about 
their fishing activity in the previous month. More information on the 
SRFS questionnaire can be found at https://myfwc.com/research/saltwater/fishstats/srfs/program/. The SRFS questionnaire is more 
narrowly focused than the MRIP-FES questionnaire. Therefore, NMFS does 
not believe it is reasonable to assume that the potential bias 
identified with the MRIP-FES questionnaire would be indicative of 
similar bias with SRFS.
    Comment 22: Action 3 in Amendment 56, which reallocates gag away 
from commercial fishermen to the recreational sector, is not consistent 
with the purpose and need of Amendment 56 and violates the Magnuson-
Stevens Act. Providing greater allocation to the recreational sector, 
which accounts for the vast majority of discards and discard mortality, 
will not allow the stock to rebuild as projected in this rebuilding 
plan.
    Response: The allocation percentages recommended by the Council in 
Amendment 56 do not reduce the probability of rebuilding the gag stock. 
The OFLs and ABCs recommended by the SSC were derived from SEDAR 72, 
which accounts for dead discards by both sectors, and the risk of 
overfishing the stock is the same for both of the allocation 
alternatives considered by the Council. As explained in response to 
Comment 10, NMFS expects the combined management measures in Amendment 
56 (i.e., reduction in catch limits, increased buffer between the 
recreational ACL and ACT, and change in recreational season start date) 
to rebuild the stock as projected. Therefore, NMFS has determined that 
the allocation percentages recommended in Amendment 56 are consistent 
with the purpose and need statement.
    Comment 23: The rule does not clarify how any overage of the 
recreational ACL in 2023 will be addressed in 2024 given that the 2023 
ACL is derived in part from MRIP-FES data and the 2024 ACL is derived 
in part from SRFS data. The amendment should include clarity 
surrounding the calibration and consistency of the catch limits [of 
data used from the different recreational surveys].
    Response: Regulations at 50 CFR 622.41(d)(2)(iii) require that if 
gag are overfished and gag recreational landings exceed the applicable 
ACL, NMFS will reduce the ACL for that following year by the amount of 
the ACL overage in the prior fishing year, and reduce the ACT 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. NMFS has determined that 
recreational landings in 2023 exceeded the recreational ACL as 
specified in the interim regulations and that adjustments to the 2024 
recreational ACL and ACT are appropriate. To reconcile the different 
data used to specify the 2023 and 2024 ACLs, NMFS has determined what 
the 2023 recreational ACL would have been after calibrating from MRIP-
FES to SRFS data, and intends to use 2023 SRFS estimates to determine 
the overage of that recreational ACL. That overage will then be 
deducted from the 2024 recreational ACL and ACT as specified in 
Amendment 56 and this final rule. The 2024 commercial ACL and ACT will 
not be effected, and the rebuilding projections as specified in 
Amendment 56 will also remain unchanged. More information will be made 
available when NMFS publishes the temporary rule specifying the 2024 
recreational catch limits.

Reference

Harford, W.J., S.R. Sagarese, and M. Karnauskas. 2019. Coping with 
information gaps in stock productivity for rebuilding and achieving 
maximum sustainable yield for grouper-snapper fisheries. Fish and 
Fisheries 20(2):303-321.

Classification

    Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS 
Assistant Administrator has determined that this final rule is 
consistent with Amendment 56, the FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law.
    There is good cause under 5 U.S.C. 553(d)(3) to establish an 
effective date for this final rule of less than 30 days after the date 
of publication. On November 28, 2023, NMFS published a temporary rule 
to withhold a portion of

[[Page 40431]]

the commercial allocation of gag for the 2024 fishing year in 
anticipation of the reduction in the commercial quota in this final 
rule (88 FR 83040). If this final rule is not effective on June 1, 
2024, the regulations at 50 CFR 622.22(a)(4) require NMFS to distribute 
the previously withheld commercial allocation to shareholders. NMFS was 
unable to publish this final rule 30 days in advance of June 1, 2024, 
because NMFS received several significant comments on the proposed 
rule, which required more time than anticipated to consider and provide 
responses. If allocation is distributed on or after June 1, NMFS would 
be unable to withdraw that allocation from the shareholder accounts and 
commercial harvest would not be constrained to the reduced catch limits 
for gag in his final rule. Allowing this additional commercial harvest 
would be contrary to the public interest because it could result in 
overfishing of gag and would be inconsistent with the approved 
rebuilding plan in Amendment 56 that was developed as required by 
section 304(e)(4) of the Magnuson-Stevens Act. Further, a 30-day delay 
in the effective date of this final rule would also cause confusion by 
allowing the recreational season for gag to open for a brief period 
beginning on June 1, 2024. And if this rule became effective after a 
30-day delay, the recreational season would close again and not reopen 
until September 1, 2024. Having this final rule effective on June 1, 
2024, avoids any confusion about when recreational fishing is allowed.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866. The Magnuson-Stevens Act provides 
the legal basis for this final rule. No duplicative, overlapping, or 
conflicting Federal rules have been identified.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the initial regulatory flexibility analysis (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' response to one 
public comment regarding the Executive Order 12866 analysis is in the 
SUPPLEMENTARY INFORMATION section of the preamble (see Comment 4 in the 
Comments and Responses section). A copy of the full analysis is 
available from NMFS (see ADDRESSES). A summary of the FRFA follows.
    The objective of this final rule is to use the best scientific 
information available to end overfishing of gag and rebuild the stock 
to a level commensurate with MSY, consistent with the authority under 
the Magnuson-Stevens Act. All monetary estimates in the following 
analysis are in 2021 dollars.
    Amendment 56 revises the MSY, OY, and SDC for gag based on the 
results of the updated SEDAR 72 SRFS Run as reviewed by the Council's 
SSC. The definition of MSY changes from FMAX to the yield 
when fishing at F40%SPR. The definition of MFMT changes from 
being equal to FMAX to being equal to the fishing mortality 
at the MSY proxy (i.e., F40%SPR). The definition of MSST 
changes from 50 percent of the biomass at FMAX to 50 percent 
of the biomass at the new MSY proxy. OY is currently defined as 75 
percent of the yield at FMAX. The new definition of OY is 
conditional on whether a rebuilding plan is in place. Specifically, if 
the stock is under a rebuilding plan, OY will be equal to the stock 
ACL. However, if the stock is not under a rebuilding plan, OY will be 
equal to 90 percent of MSY or its proxy.
    Amendment 56 also revises the sector allocation of the stock ACL 
from 39 percent commercial and 61 percent recreational to approximately 
35 percent commercial and 65 percent recreational. Amendment 56 also 
establishes a rebuilding plan based on the amount of time the stock is 
expected to take to rebuild based on the yield when fishing at 75 
percent of F40%SPR, which is equal to 18 years. In turn, the 
rebuilding plan in combination with the new sector allocation changes 
the OFL, ABC, stock ACL, commercial ACL, and the recreational ACL. 
Based on the current allocation of the stock ACL between sectors, the 
OFL, ABC, stock ACL, commercial ACL, recreational ACL, commercial 
quota, and recreational ACT would be 4.180 million lb (1.896 million 
kg), 3.120 million lb (1.415 million kg), 3.120 million lb (1.415 
million kg), 1.217 million lb (0.552 million kg), 1.903 million lb 
(0.863 million kg), and 0.939 million lb (0.426 million kg), and 1.708 
million lb (0.775 million kg), respectively, in 2024 and future years 
if no action was taken. The recreational portion of the OFL, ABC, stock 
ACL, the recreational ACL, and the recreational ACT would be based on 
MRIP-CHTS data. Under the new sector allocation and rebuilding plan, 
the OFL, ABC, stock ACL, recreational ACL, commercial ACL, recreational 
ACT, and commercial quota are reduced in 2024 but subsequently increase 
through 2028 as indicated in tables 1 and 2 earlier in this rule. The 
recreational portion of the revised OFL, ABC, stock ACL, the 
recreational ACL, and the recreational ACT are based on recreational 
landings estimates used in the SEDAR 72 SRFS Run. Therefore, the 
different stock ACLs and recreational ACLs and ACTs are not directly 
comparable.
    This final rule also revises the buffer between the recreational 
ACL and ACT, which is currently 10.25 percent (i.e., the recreational 
ACT is 89.75 percent of the recreational ACL). Under this final rule, 
the buffer between the recreational ACL and ACT is approximately 20 
percent (i.e., the recreational ACT is approximately 80 percent of the 
recreational ACL).
    In addition, this final rule also modifies the buffer between the 
commercial ACL and quota, and sets the quota equal to the ACT. The 
commercial quota is currently set at approximately 77 percent of the 
commercial ACL. The commercial ACT is not codified in regulations. This 
final rule sets the commercial ACT equal to approximately 95 percent of 
the commercial ACL and sets commercial quota equal to the commercial 
ACT. Thus, the commercial quota is approximately 95 percent of the 
commercial ACL.
    Lastly, this final rule changes the recreational season start date 
and modifies the recreational AMs for gag. Specifically, the 
recreational season start date is changed from June 1 to September 1 
each year. The current AM requires NMFS to prohibit harvest when the 
recreational ACL is projected to be met, whereas this final rule 
requires NMFS to prohibit harvest when the recreational ACT is 
projected to be met. The current AM also requires NMFS to maintain the 
recreational ACT for the 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. This 
provision is removed under this final rule. Given these individual 
actions, this final rule is expected to regulate commercial fishing 
businesses that possess gag shares 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 quota for gag. 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, there were 536 IFQ accounts, of which 506 IFQ 
accounts held gag shares. These accounts and gag

[[Page 40432]]

shares were owned by 455 businesses. Thus, NMFS assumes this final 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 is expected to result in an overestimate of the actual 
number of for-hire fishing businesses regulated by this final 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 803 federally 
permitted vessels, 62 are primarily used for commercial fishing rather 
than for-hire fishing purposes, and thus are not considered for-hire 
fishing businesses (i.e., 1,227 vessels are 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 by this final rule.
    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 final rule if it is 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 NMFS 
estimates this final rule would regulate 528 charter 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 
2017 through 2021, the maximum annual gross revenue earned by a single 
commercial fishing vessel was about $3.25 million. Based on this 
information, all commercial fishing businesses regulated by this final 
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 United 
States, 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 charter 
fishing businesses regulated by this final rule are determined to be 
small businesses for the purpose of this analysis.
    NMFS expects this final rule to regulate 455 of the 536 businesses 
with IFQ accounts, or approximately 85 percent of those commercial 
fishing businesses. Further, NMFS expects this final 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 final rule to affect a substantial number of small 
entities.
    Because NMFS does not collect revenue and cost data for the 
commercial fishing businesses that are expected to be regulated by this 
final 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 quota of red snapper has been used for harvesting in 
recent years, and so it is assumed 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, only 82 percent of the deep-water grouper 
quota, 38 percent of the shallow-water grouper quota, and 73 percent of 
the tilefish quota was harvested from 2017 through 2021, and that is 
expected to continue in the foreseeable future. For gag, the quota 
utilization rate from 2017 through 2021 was approximately 52 percent. 
Given these quota utilization rates in combination with average annual 
allocation prices from 2017 through 2021 and annual commercial quotas 
in 2021, NMFS estimates that the total expected economic profits for 
commercial fishing businesses with gag shares are at least $29.4 
million per year 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

[[Page 40433]]

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, NMFS expects the average annual economic profit per 
commercial fishing business is at least $64,620.
    Most of these economic profits (84 percent) are the result of 
owning red snapper shares. Only approximately $502,930 (or 1.7 percent) 
of the expected economic profits is due to the ownership of gag shares. 
This final rule is only expected to affect economic profits from the 
ownership of gag shares.
    Specifically, the action that changes the sector allocation of the 
stock ACL and implements a rebuilding plan, which changes the stock 
ACL, reduces the commercial ACL and commercial quota from 1.217 million 
lb (552,022 kg) and 939,000 lb (425,923 kg) to 275,000 lb (124,738 kg) 
and 212,000 lb (96,162 kg) on average from 2024 through 2028. However, 
average annual commercial landings of gag from 2017 through 2021 were 
only 492,401 lb (223,349 kg), noticeably below the commercial quota. 
Because average annual landings exceed the commercial quotas for 2024 
through 2028, it is assumed all of the proposed commercial quota will 
be harvested in each year through 2028, and the expected average 
reduction in annual commercial landings will be 280,401 lb (127,188 
kg). Initially, NMFS expects the reduction in commercial landings to 
increase the average ex-vessel price of gag from $6.10 per lb to $7.78 
per lb, or by $1.68 per lb, in 2024. However, NMFS expects the increase 
in ex-vessel price to gradually decrease through 2028 as the quota and 
landings increase, resulting in an ex-vessel price of $6.96 in 2028. 
The increase in the ex-vessel price would partially offset the adverse 
effects of the landings reduction. Based on the above information, NMFS 
expects a reduction in annual ex-vessel revenue for gag of 
approximately $1.57 million on average, or about $3,451 on average per 
commercial fishing business. Given an average annual allocation price 
of $1.03 per lb for gag from 2017 through 2021, NMFS expects the 
reduction in commercial landings of gag to reduce economic profits to 
these commercial fishing businesses by about $288,813, or by 
approximately $635 per commercial fishing business. Thus, NMFS expects 
economic profits to be reduced by around 1 percent on average per 
commercial fishing business as a result of the action to change the 
sector allocation and implement a rebuilding plan that reduces the 
stock ACL.
    The action that sets the commercial ACT equal to 95 percent of the 
commercial ACL and sets the commercial quota equal to the commercial 
ACT causes the commercial quota to be equal to 95 percent of the 
commercial ACL as opposed to approximately 77 percent of the commercial 
ACL. As such, this action is expected to increase the commercial quota 
relative to what it would be otherwise. The increase still yields 
commercial quotas below the recent average commercial landings, and 
thus NMFS assumes all of the expected increase in the quota will be 
harvested. Specifically, NMFS expects the average annual increase in 
the commercial quota and landings from 2024 through 2028 to be about 
48,527 lb (22,011 kg), which would increase average annual revenue by 
$267,371, or by about $588 per commercial fishing business. Again, 
assuming an average annual allocation price of $1.03 per lb, NMFS 
expects economic profit to commercial fishing businesses to increase by 
$49,983 per year, or about $110 per commercial fishing business, as a 
result of this action.
    Combining these expected increases in revenue and profits with the 
decreases discussed earlier, NMFS expects this final rule to decrease 
average revenue for commercial fishing businesses by about $1.31 
million per year from 2024 through 2028, or by $2,868 per commercial 
fishing business. The total reduction in economic profits for 
commercial fishing businesses is expected to be $238,830, or $525 per 
commercial fishing business, which represents a decrease of about 0.8 
percent.
    According to the most recent estimates of economic returns for 
charter vessels, average annual economic profit per charter vessel is 
$27,948. The action to change the sector allocation and implement a 
rebuilding plan, which would change the stock ACL, would change the gag 
recreational ACL from its current value of 1.903 million lb (863,186 
kg) to 510,000 lb (231,332 kg) on average from 2024 through 2028. As 
explained previously, the current and new recreational ACLs are not 
directly comparable because they are based, in part, on recreational 
landings estimates derived from different surveys. However, average 
recreational landings from 2017 through 2021 were approximately 1.265 
million lb (573,794 kg). Given that average recreational landings have 
been considerably greater than the recreational ACT in this final rule, 
all of the recreational ACT is expected to be harvested in the future. 
NMFS expects the reduction in the recreational ACT to reduce the 
recreational season length from 214 days to 25 days in 2024. However, 
the season length is expected to steadily increase to 120 days by 2028 
and the average season length from 2024 through 2028 is expected to be 
64 days. The reduction in the season length would reduce the number of 
angler trips targeting gag on charter vessels. From 2024 through 2028, 
the average reduction in angler trips targeting gag on charter vessels 
is expected to be 20,976 trips per year. Net Cash Flow per Angler Trip 
(CFpA) is the best available estimate of profit per angler trip by 
charter vessels. According to a recent study (available from NMFS see 
ADDRESSES), CFpA on charter vessels is estimated to be $150 per angler 
trip. Thus, NMFS estimates the total reduction in charter vessel 
profits from this action to be $3.146 million per year. The average 
reduction in economic profit per charter fishing business would 
therefore be about $5,960, or approximately 21.3 percent of their 
current economic profit, per year.
    In combination with the action to require NMFS to close the 
recreational season based on when the recreational ACT, rather than the 
recreational ACL, is projected to be met, the action to increase the 
buffer between the recreational ACL and recreational ACT from 10.25 
percent to 20 percent is expected to reduce the recreational season 
length further from the action to change the sector allocation and 
implement a rebuilding plan. Specifically, the season length is 
expected to be further reduced by 2 days in 2024 (open for 23 days 
instead of 25), though this reduction is expected to gradually increase 
to 24 days by 2028 (open for 96 days instead of 120 days). The average 
additional reduction in the recreational season length per year is 
expected to be 12 days (open for 52 days instead of 64). Again, a 
reduction in the season length is expected to reduce the number of 
angler trips targeting gag on charter vessels. From 2024 through 2028, 
the average reduction in angler trips targeting gag on charter vessels 
is expected to be 2,125 trips per year. Based on an estimate of $150 in 
economic profit per angler trip, NMFS estimates the reduction in 
charter vessel profits from this action to be $318,690 per year. The 
average reduction in economic profit per charter vessel $604 per year, 
or about 2.2 percent on average per charter fishing business.
    The action that changes the recreational season start date from 
June 1 to September 1 is expected to increase the recreational season 
length from 23 days to 59 days in 2024, and from 52 days to 81 days on 
average from 2024 through 2028. However, because there

[[Page 40434]]

are many fewer charter trips targeting gag in the fall months 
(September through December) compared to the summer months (June 
through August), this action is expected to further decrease the number 
of angler trips targeting gag on charter vessels. Although the 
reduction in trips from 2024 through 2028 varies slightly from year to 
year, the average reduction per year is 1,610 trips. Based on an 
estimate of $150 in economic profit per angler trip, NMFS expects this 
action to decrease economic profits for charter vessels by about 
$241,500 per year, or by $456 per charter vessel. This would result in 
a decrease of economic profits by around 1.6 percent on average per 
charter fishing business.
    Based on the above, NMFS expects the total reduction in target 
trips by charter vessels per year as a result of this final rule to be 
24,711 trips. NMFS expects this reduction in trips to reduce economic 
profits for charter vessels by a total of about $3.707 million per 
year, or approximately $7,020 per charter vessel. Thus, annual economic 
profit per charter fishing business is expected to be reduced by 
approximately 25.1 percent on average.
    Six alternatives, including the status quo, were considered for the 
actions to change the sector allocation of the stock ACL to 35 percent 
to the commercial sector and 65 percent to the recreational sector, 
establish a rebuilding plan of 18 years based on the amount of time the 
stock is expected to take to rebuild if fished at the yield from 
fishing at 75 percent of F40%SPR, and 
change the catch levels for 2024 through 2028 as specified in table 1. 
The status quo alternative would have retained the current sector 
allocation of the stock ACL of 39 percent to the commercial sector and 
61 percent to the recreational sector based on MRIP-CHTS recreational 
landings data. The status quo alternative would not have established a 
rebuilding plan or modified any of the catch limits based on MRIP-FES 
and SRFS landings estimates. This alternative was not selected because 
the sector allocation would have been based in part on MRFSS 
recreational landings estimates, which is no longer consistent with the 
best scientific information available and would effectively result in a 
reallocation to the commercial sector of approximately four percent, 
which the Council did not consider to be equitable. This alternative 
also would not have rebuilt the gag stock or ended overfishing as 
required by the Magnuson-Stevens Act.
    A second alternative would have also retained the current sector 
allocation of the stock ACL of 39 percent to the commercial sector and 
61 percent to the recreational sector, but would have established a 
rebuilding plan of 11 years assuming a fishing mortality rate of zero. 
This alternative would have revised the OFL based on the projections 
from the SEDAR 72 SRFS Run and would have set all of the other catch 
levels through 2028 at zero. However, as with the status quo 
alternative, the sector allocation would have been based in part on 
MRFSS recreational landings data. Further, prohibiting harvest of gag 
would not be expected to eliminate all fishing mortality, as some gag 
would still be expected to be discarded and die as fishermen continue 
fishing for other species that live in similar habitats as gag. This 
alternative was not selected because, as discussed above, MRFSS is not 
consistent with the best scientific information available, and would 
result in a de facto reallocation from the recreational to the 
commercial sector of approximately four percent, which the Council did 
not considerable to be equitable. Further, because it is not feasible 
to eliminate dead discards of gag when fishermen are targeting other 
species, it is unlikely the stock would actually be rebuilt in 11 
years. This alternative would have also resulted in significantly 
larger adverse economic effects on commercial and charter fishing 
businesses compared to the action in this final rule.
    A third alternative would have also retained the current sector 
allocation of the stock ACL of 39 percent to the commercial sector and 
61 percent to the recreational sector. But, like the action in this 
final rule, the third alternative would have established a rebuilding 
plan of 18 years and changed the catch levels based on the projections 
from the SEDAR 72 SRFS Run. This alternative would have ended 
overfishing and rebuilt the stock in 18 years. But, as with the status 
quo and the second alternative, the sector allocation of the stock ACL 
would be based on MRFSS recreational landings data. Thus, this 
alternative was not selected because MRFSS is not the best scientific 
information available, and would effectively result in a reallocation 
from the recreational sector to the commercial sector of approximately 
four percent.
    A fourth alternative would have also retained the current sector 
allocation of the stock ACL of 39 percent to the commercial sector and 
61 percent to the recreational sector, but would have established a 
rebuilding plan of 22 years and changed the catch limits based on the 
projections from the SEDAR 72 SRFS Run. This alternative would have 
ended overfishing and rebuilt the stock while allowing greater harvest 
and resulting in smaller adverse economic effects on commercial and 
charter fishing businesses compared to the action in this final rule. 
However, it was not selected because the stock is expected to take 4 
more years to rebuild compared to the action in this final rule, and 
the Magnuson-Stevens Act requires overfished stocks to be rebuilt in as 
short a time period as possible, taking into account various factors. 
This alternative was also not selected because the use of MRFSS 
recreational landings data is not consistent with the best scientific 
information available, and would effectively result in a reallocation 
to the commercial sector of approximately four percent.
    Like the action in this final rule, a fifth alternative would have 
changed the sector allocation of the stock ACL to 35 percent to the 
commercial sector and 65 percent to the recreational sector based in 
part on recreational landings estimates from MRIP-FES, SRHS, and SRFS 
for 1986 through 2005. As with the second alternative, the fifth 
alternative would have also established a rebuilding plan of 11 years 
assuming a fishing mortality rate of zero and used SEDAR 72 SRFS Run 
projections to change the OFL. The other catch limits would have been 
set at zero. As discussed earlier, prohibiting harvest of gag would not 
be expected to eliminate all fishing mortality, as some gag would still 
be expected to be discarded and die as fishermen continue fishing for 
other species that live in similar habitats as gag. This alternative 
was not selected because it is not feasible to eliminate dead discards 
of gag when fishermen are targeting other species, and therefore it is 
unlikely the stock would rebuild in 11 years. This alternative would 
have also resulted in significantly larger adverse economic effects on 
commercial and for-hire fishing businesses compared to the proposed 
action.
    Like the action in this final rule, a sixth alternative would have 
changed the sector allocation of the stock ACL to 35 percent to the 
commercial sector and 65 percent to the recreational sector based in 
part on recreational landings estimates from MRIP-FES, SRHS, and SRFS 
data for 1986 through 2005. However, this alternative would have also 
established a rebuilding plan of 22 years. This alternative would be 
based on the best scientific information available, end overfishing, 
and rebuild the stock. This alternative would have also resulted in 
higher catch limits and therefore resulted in small adverse economic 
effects on commercial and for-

[[Page 40435]]

hire fishing businesses compared to the proposed action. However, this 
alternative was not selected because it is expected to take 4 more 
years to rebuild compared to the action in this final rule, and the 
Magnuson-Stevens Act requires overfished stocks to be rebuilt in as 
short a time as possible, taking into account various factors.
    Two alternatives, including the status quo, were considered for the 
action to increase the buffer between the recreational ACL and 
recreational ACT from 10.25 percent to 20 percent. The status quo 
alternative would have maintained the buffer between the recreational 
ACL and recreational ACT at 10.25 percent based the yield at 75 percent 
of FMAX. However, as explained previously, use of 
FMAX as a proxy for FMSY is not consistent with 
the best scientific information available.
    The second alternative would have revised the recreational ACT 
using the Council's ACL and ACT Control Rule based on recreational 
landings data from 2018 through 2021. This alternative would have 
resulted in a 10 percent buffer between the recreational ACL and ACT, 
which would have left the buffer essentially unchanged. This 
alternative was not selected because the Council concluded it was 
necessary to increase the buffer between the ACL and ACT to reduce the 
probability of the recreational sector exceeding its ACL, reduce the 
likelihood of overfishing, and reduce the level of discards associated 
with directed harvest, which together are expected to increase the 
probability of meeting the 18-year timeline for rebuilding the gag 
stock.
    Two alternatives, including the status quo, were considered for the 
action to set the commercial ACT equal to 95 percent of the commercial 
ACL and set commercial quota equal to the commercial ACT. The status 
quo alternative would have maintained commercial ACT, which is based on 
the yield at 75 percent of FMAX, and a commercial quota set 
at 86 percent of the commercial ACT. This alternative was not selected 
because it is based on FMAX, which is no longer consistent 
with the best scientific information available.
    The second alternative would have set the commercial ACT equal to 
86 percent of the commercial ACL and, like the action in this final 
rule, set the commercial quota equal to the commercial ACT. This 
alternative was not selected because the Council determined that a 14 
percent buffer between the commercial ACL and ACT is too high and 
unnecessarily limits commercial harvest due to reduced uncertainty in 
the estimates of commercial landings and discards.
    Three alternatives, including the status quo, were considered for 
the action to change the recreational season start date from June 1 to 
September 1 and require NMFS to close the recreational season based on 
when the recreational ACT is projected to be met rather than the 
recreational ACL. The status quo alternative would have maintained the 
recreational season start date of June 1 and required NMFS to close the 
recreational season based on when the recreational ACL is projected to 
be met. This alternative was not selected mainly because it would have 
resulted in a shorter average recreational season length (75 days) 
compared to the action in this final rule (81 days) for 2024 through 
2028. In general, a longer fishing season would result in more fishing 
opportunities for both the private and for-hire components of the 
recreational sector. Further, shifting fishing effort to a historically 
low-effort month (September) may reduce the overall magnitude of 
recreational discards compared to starting the season in June. Shifting 
fishing pressure to the fall would also be expected to reduce directed 
effort for gag in deeper waters, which may further reduce the 
probability of harvesting or discarding dead male gag.
    The second alternative would have retained the June 1 start date 
for the recreational season. But, like the action in this final rule, 
this alternative would have required NMFS to close the recreational 
season based on when the recreational ACT is projected to be met. This 
alternative was not selected mainly because it would have resulted in a 
shorter average recreational season length (52 days) compared to the 
action in this final rule (81 days) for 2024 through 2028. In general, 
a longer fishing season would result in more fishing opportunities for 
both the private recreational and for-hire components of the fishery. 
Further, shifting fishing effort to a historically low-effort month 
(September) may reduce the overall magnitude of recreational discards 
compared to starting the season in June. Shifting fishing pressure to 
the fall would be expected to reduce directed effort for gag in deeper 
waters, which may further reduce the probability of harvesting or 
discarding dead male gag.
    The third alternative would have changed the recreational season 
start date to October 1. But, like the action in this final rule, this 
alternative would have required NMFS to close the recreational season 
based on when the recreational ACT is projected to be met. This 
alternative was not selected because it would have resulted in a 
shorter average recreational season length (63 days) compared to the 
action in this final rule (81 days) for 2024 through 2028 and would 
have also resulted in greater adverse effects to charter fishing 
businesses. In general, a longer fishing season would be expected to 
result in more fishing opportunities for both the private and for-hire 
components of the recreational sector.
    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, which also 
serves as a small entity compliance guide. Copies of this final rule 
are available from the Southeast Regional Office, and the guide, i.e., 
fishery bulletin, will be sent to all known industry contacts in the 
Gulf reef fish fishery and be posted at: https://www.fisheries.noaa.gov/tags/small-entity-compliance-guide?title=&field_species_vocab_target_id=&field_region_vocab_target_id%5B1000001121%5D=1000001121&sort_by=created. The guide and this final 
rule will be available upon request.
    This final rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Gag, Gulf of Mexico.

    Dated: May 6, 2024.
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.  622.8, revise paragraph (c) to read as follows:

[[Page 40436]]

Sec.  622.8  Quotas--general.

* * * * *
    (c) Reopening. When a species, species group, sector, or sector 
component has been closed based on a projection of the applicable catch 
limit (ACL, ACT, or quota) specified in this part being reached and 
subsequent data indicate that the catch limit was not reached, the 
Assistant Administrator may file a notification with the Office of the 
Federal Register. Such notification may reopen the species, species 
group, sector, or sector component to provide an opportunity for the 
catch limit to be harvested.
    3. In Sec.  622.34, revise paragraph (e) to read as follows:


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

* * * * *
    (e) 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. During the closure, the bag and possession 
limits for gag in or from the Gulf EEZ are zero.
* * * * *

0
4. In Sec.  622.39, revise paragraph (a)(1)(iii)(B) to read as follows:


Sec.  622.39  Quotas.

* * * * *
    (a) * * *
    (1) * * *
    (iii) * * *
    (B) Gag. See table 1.

                   Table 1 to Paragraph (a)(1)(iii)(B)
------------------------------------------------------------------------
                                                     Commercial quota in
                       Year                                lb (kg)
------------------------------------------------------------------------
2024..............................................      147,000 (66,678)
2025..............................................      204,000 (92,533)
2026..............................................     255,000 (115,666)
2027..............................................     313,000 (141,974)
2028+.............................................     383,000 (173,726)
------------------------------------------------------------------------

* * * * *

0
5. In Sec.  622.41, revise paragraph (d) to read as follows:


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

* * * * *
    (d) Gag--(1) Commercial sector. See table 1 for the commercial ACLs 
in gutted weight. The commercial ACT for gag is equal to the applicable 
commercial quota specified in Sec.  622.39(a)(1)(iii)(B). The IFQ 
program for groupers and tilefishes in the Gulf of Mexico in Sec.  
622.22 serves as the accountability measure for the commercial harvest 
of gag.

                       Table 1 to Paragraph (d)(1)
------------------------------------------------------------------------
                                                    Commercial ACL in lb
                       Year                                 (kg)
------------------------------------------------------------------------
2024..............................................      155,000 (70,307)
2025..............................................      215,000 (97,522)
2026..............................................     269,000 (122,016)
2027..............................................     330,000 (149,685)
2028+.............................................     404,000 (183,251)
------------------------------------------------------------------------

    (2) Recreational sector. (i) See table 2 for the recreational ACLs 
and ACTs in gutted weight.

                     Table 2 to Paragraph (d)(2)(i)
------------------------------------------------------------------------
                              Recreational ACL  in  Recreational ACT  in
            Year                     lb (kg)               lb (kg)
------------------------------------------------------------------------
2024........................     288,000 (130,635)     230,000 (104,326)
2025........................     399,000 (180,983)     319,000 (144,696)
2026........................     499,000 (226,343)     399,000 (180,983)
2027........................     613,000 (278,052)     490,000 (222,260)
2028+.......................     751,000 (340,648)     600,000 (272,155)
------------------------------------------------------------------------

    (ii) If the NMFS SRD estimates that gag recreational landings have 
reached or are projected to reach the applicable recreational ACT 
specified in paragraph (d)(2)(i) 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 for gag in or from the Gulf EEZ are zero. These bag and 
possession limits apply in the Gulf on board 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.
    (iii) In addition to the measures specified in paragraph (d)(2)(ii) 
of this section, if the NMFS SRD estimates that gag recreational 
landings have exceeded the applicable ACL specified in paragraph 
(d)(2)(i) of this section and gag is overfished based on the most 
recent Status of U.S. Fisheries Report to Congress, the following 
measure will apply. 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 recreational ACL for that following year 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.
* * * * *
[FR Doc. 2024-10208 Filed 5-9-24; 8:45 am]
BILLING CODE 3510-22-P