SUPPLEMENTARY INFORMATION:

The Gulf of America (Gulf) reef fish fishery, which includes the DWG complex (composed of yellowedge grouper, snowy grouper, warsaw grouper, and speckled hind), is managed under the FMP. The FMP was prepared by NMFS and the Gulf Council (Council), and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

Background

The Magnuson-Stevens Act requires fishery management plans to prevent overfishing and achieve, on a continuing basis, the optimum yield (OY) from federally managed fish stocks. These mandates are intended to ensure fishery resources are managed for the greatest overall benefit to the Nation, particularly with respect to providing food production, recreational opportunities, and protecting marine ecosystems.

This action is proposed under section 303(a)(1) of the Magnuson-Steven Act as necessary and appropriate for the conservation and management of the fishery to prevent overfishing, rebuild overfished stocks, and promote the long-term health and stability of the fishery.

Unless otherwise noted, all weights in this proposed rule are in pounds (lb), gutted weight.

The current species composition of the DWG complex was established in the Generic ACL and AM Amendment to the FMP (76 FR 82044, December 29, 2011). The current catch limits for the complex were also established in the Generic ACL and AM Amendment based on the results of a stock assessment for yellowedge grouper (Southeast Data, Assessment, and Review [SEDAR] 22) and using Tier 3b of the FMP's Acceptable Biological Catch (ABC) Control Rule for the other species. Tier 3b of the ABC Control Rule uses the mean of the landings from a representative time series. The current DWG complex overfishing limit (OFL) and ABC are 1.113 million lb (0.505 million kilogram (kg)) and 1.105 million lb (0.501 million kg), respectively. The DWG complex ACL equals the ABC. The current maximum sustainable yield (MSY) proxy for the DWG complex was established in Amendment 48 to the FMP. The MSY proxy is based on the yield associated with a fishing mortality rate (F) that would result in a spawning stock biomass (SSB) of 30 percent of the spawning potential ratio (SPR) (F_30%SPR), where SPR is the ratio of the SSB to its unfished state.

In 2024, a stock assessment of yellowedge grouper was completed (SEDAR 85) and subsequently reviewed by the Council's Scientific and Statistical Committee (SSC). SEDAR 85 included recreational data from the Marine Recreational Information Program (MRIP)-Fishing Effort Survey (FES) rather than the previously used Marine Recreational Fishery Statistics Survey (MRFSS). MRIP-FES generally generates higher recreational effort and harvest estimates than MRFSS because MRIP-FES is designed to more accurately measure fishing effort.

The results of SEDAR 85 indicated that yellowedge grouper was not overfished but was experiencing overfishing. The SSC recommended updated status determination criteria for the DWG complex and new catch levels that would end overfishing of yellowedge grouper. Because SEDAR 85 assessed only the yellowedge grouper stock and did not assess the remaining species within the DWG complex (snowy grouper, warsaw grouper, and speckled hind), the SSC recommended new catch levels for these three species using Tier 3b of the FMP's ABC Control Rule and average landings from 2010 to 2022. Consistent with the data used in SEDAR 85, recreational landings were calibrated to MRIP-FES. The SSC also recommended keeping yellowedge grouper in the DWG complex to reduce discard mortality because the species inhabit similar environments. Thus, the proposed DWG complex OFL of 731,035 lb (331,592 kg) and ABC of 555,026 lb (251,756 kg) are equal to the sum of the recommended catch limits for yellowedge grouper based on SEDAR 85 ( printed page 24501) and the recommended catch limits for the other DWG species. Because of the different recreational landings estimates used to determine the current and proposed stock complex catch limits, those catch limits are not directly comparable. However, the proposed catch limits are a significant reduction for the complex.

Commercial harvest of the DWG complex has been managed under the Grouper-Tilefish Individual Fishing Quota (IFQ) program since 2010 (74 FR 44732, August 31, 2009). The current commercial quota for the DWG complex is 1.024 million lb (0.464 million kg), 4 percent less than the commercial ACL of 1.070 million lb (0.485 million kg). The 4 percent buffer allows for flexibility measures between the DWG complex and the other shallow-water grouper (Other SWG) complex composed of scamp, yellowmouth grouper, black grouper, and yellowfin grouper to reduce discards and allow commercial fishermen to better use the allocation they have in a given fishing year. The flexibility measures allow a shareholder to land scamp under their DWG allocation as long as they have no Other SWG allocation remaining in their shareholder account or any associated vessel accounts. These measures also allow a shareholder to land warsaw grouper or speckled hind under their Other SWG allocation provided they have no DWG allocation remaining in their shareholder account or any associated vessel accounts. The IFQ program acts as the commercial AM and the DWG complex commercial quota has never been exceeded under the IFQ program.

Currently, there is no specified recreational ACL for the DWG complex. However, the commercial ACL is specified as 96.5 percent of the DWG complex ACL, so there is a portion of the stock (total) ACL that is unallocated. The commercial allocation is based on the sector's average landings from 2001 to 2004. At the time the current catch limits were adopted, the unallocated portion of the stock ACL was determined to be sufficient to allow historic recreational landings of the DWG complex to continue. However, recreational landings comprise an increasing proportion of the total DWG complex landings in recent years. Therefore, the Council reviewed the allocation in Amendment 58B and determined it was appropriate to revise the allocation based on the average recreational landings from the most recent 5 years (2019-2023). If NMFS approves Amendment 58B as proposed, the result would be a commercial allocation of 89.79 percent and a recreational allocation of 10.21 percent of the complex ACL.

The AM for the recreational sector requires that in the year following an overage of the complex ACL, the recreational sector will close when combined landings are projected to reach the complex ACL. Landings have never reached the complex ACL and, thus, no recreational AM closure has been necessary. However, because the recreational AM is based on reaching the complex ACL, it could allow overfishing to occur since the recreational (undefined) catch limit ( i.e., the difference between the complex ACL and the commercial ACL) could be exceeded prior to the commercial sector harvesting its commercial quota in the IFQ program. In this scenario, the commercial sector would still be permitted to harvest their commercial quota, thereby allowing for the complex ACL to be exceeded. This scenario would be more likely to occur in the future given the reductions in catch limits proposed in Amendment 58B and this rule.

To ensure management measures are based on the best scientific information available, end overfishing of the yellowedge grouper stock, and achieve the OY of the DWG complex, Amendment 58B would, for the DWG complex, revise the MSY proxy, OFL, ABC, and sector allocations. Also, the amendment and this proposed rule would revise the DWG complex commercial quota, the commercial ACL, and the complex ACL, establish a recreational ACL, and revise the recreational AM.

Management Measures Contained in This Proposed Rule

This proposed rule would revise the DWG complex commercial quota, the commercial ACL, and the complex ACL, establish a recreational ACL, and revise the recreational AM.

Catch Limits

This proposed rule would reduce the current DWG complex ACL from 1.105 million lb (0.501 million kg) to 555,026 lb (251,756 kg). As noted above, these catch limits are not directly comparable, but the proposed complex ACL is a significant reduction. This proposed rule would reduce the commercial ACL from 1.070 million lb (0.485 million kg) to 498,000 lb (225,889 kg), and the commercial quota would be reduced from 1.024 million lb (0.464 million kg) to 478,000 lb (216,817 kg). As is currently the case, the proposed commercial quota would be 4 percent less than the proposed commercial ACL.

Under the IFQ program, the commercial ACL and quota values are rounded down to the nearest thousand pounds (454 kg) to ensure that when allocation is distributed, the distributed allocation does not exceed the commercial quota. Without rounding, the distributed allocation could exceed the commercial quota based on how IFQ share percentages are calculated and the allocation is distributed. For this reason, the commercial and recreational ACLs do not sum to equal the stock ACL.

There is currently no specified recreational ACL. This proposed rule would set a recreational ACL at 56,668 lb (25,704 kg).

Recreational AM

This proposed rule would also modify the AM for the recreational sector, which states that in the year following an overage of the complex ACL, the recreational sector will close when combined landings reach or are projected to reach the complex ACL. This proposed rule would revise the recreational AM to use a moving 3-year average of DWG complex recreational landings compared to the average recreational ACL of the complex over the same 3 years and also compare a moving 3-year average of DWG total landings to the average complex ACL over the same 3 years. If at any point average landings exceed both the average complex ACL and average recreational ACL, then during the following fishing year, the length of the recreational fishing season would be reduced to ensure that the recreational ACL is not exceeded. The length of the recreational fishing season would not be reduced if NMFS determines, based on the best scientific information available, that no fishing season reduction is necessary. The revised recreational AM would help constrain recreational landings if needed to prevent successive overages of the complex ACL, which would reduce the risk of overfishing.

Management Measures in Amendment 58B That Would Not Be Codified by This Proposed Rule

In addition to the measures in this proposed rule, Amendment 58B would update the MSY proxy, the OFL, the ABC and the sector allocations for the DWG complex contained in the FMP.

MSY Proxy, OFL, and ABC

Amendment 58B would revise the MSY proxy, OFL, and ABC for the DWG complex based on the SSC recommendations. The MSY proxy would be the yield when fishing at an F that produces an SPR of 40 percent (F₄₀%_SPR). The complex OFL would be ( printed page 24502) 731,035 lb (331,592 kg), and the ABC would be 555,026 lb (251,756 kg). The complex ACL would be set equal to the ABC.

Sector Allocations

Currently, the commercial sector is allocated 96.50 percent of the complex ACL based on the average sector landings from 2001 to 2004. As described in Amendment 58B, the sector allocations would be updated based on the average recreational landings from the most recent 5 years (2019-2023). This would result in a commercial allocation of 89.79 percent and a recreational allocation of 10.21 percent of the DWG complex ACL. The Council recommended this adjustment based on recent recreational landings in order to allow the commercial sector to harvest the majority of the DWG complex ACL while also recognizing the increase in recreational fishing effort.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 58B, the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866. This proposed rule is not an Executive Order 14192 regulatory action because this rule is not significant under Executive Order 12866.

The Magnuson-Stevens Act provides the legal basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this proposed rule. This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the RFA. A copy of this analysis is available from NMFS (see ADDRESSES ). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A summary of the IRFA follows. All monetary estimates in the following analysis are in 2024 dollars.

This proposed rule would revise the DWG complex ACL of 1.105 million lb (0.501 million kg) to a new complex ACL that is set equal to the new complex ABC, which is 555,026 lb (251,756 kg). This proposed rule would also update the allocation of the DWG complex ACL from previously having an unspecified recreational sector allocation, to a new recreational sector allocation based on the average recreational landings from the most recent 5 years (2019-2023). This would establish a new recreational ACL of 56,668 lb (25,704 kg), or 10.21 percent of the DWG complex ACL. To account for the new recreational ACL, this proposed rule also revises the commercial sector's allocation from 96.50 percent of the DWG complex ACL (based on landings during 2001-2004) to 89.79 percent of the complex ACL. This proposed change in the total complex ACL and the commercial allocation would reduce the DWG commercial ACL from 1.070 million lb (0.485 million kg) to 498,000 lb (225,889 kg), when rounded down to the nearest thousand pounds. The proposed rule also revises the commercial quota from 1.024 million lb (0.464 million kg) to 478,000 lb (216,817 kg), which is 4 percent less than the proposed commercial ACL (also rounded down to the nearest thousand pounds).

This proposed rule would also revise the DWG complex recreational AM. The current recreational AM for the DWG complex is a post-season AM requiring that in the year following an overage of the complex ACL, the recreational sector will close when combined landings reach or are projected to reach the complex ACL. This proposed rule would revise the recreational AM to require that if at any point during the course of a moving 3-year period, the average DWG recreational landings exceed the average recreational ACL and the average DWG total landings exceed the average complex ACL, then during the following fishing year the length of the recreational fishing season would be reduced to ensure that the recreational ACL is not exceeded. However, no reduction in the fishing season would be required if NMFS determined that the best scientific information available indicated it would be unnecessary.

This proposed rule would apply to all commercial fishing businesses, for-hire fishing businesses, and recreational fishers (anglers) that fish for Gulf DWG species in Federal waters. None of the proposed changes would directly apply to federally permitted dealers. Any change in the supply of DWG species available for purchase by dealers as a result of this proposed rule, and associated economic effects, would be an indirect effect of the proposed rule and would therefore fall outside the scope of the RFA. Additionally, the RFA does not consider recreational anglers to be entities, so they are outside the scope of this analysis (5 U.S.C. 603). Small entities include small businesses, small organizations, and small governmental jurisdictions (5 U.S.C. 601(3)-(6)).

Although this proposed rule would apply to charter vessels and headboats (for-hire vessels), NMFS does not expect it to have any direct effects on these entities. From 2019 to 2023, there were an average of 60 target trips by charter vessels for DWG in the Gulf, which accounts for just over 2.5 percent of all recreational target trips for DWG in the Gulf. In contrast, an average of 6,244 catch trips by charter vessels for DWG in the Gulf were made from 2019 to 2023. This indicates that DWG fish are incidentally harvested species and charter vessels do not sell targeted trips for these fish. Virtually all recreational trips targeting DWG were made by private anglers, who are not considered entities under the RFA. In the Gulf, headboat trips take a diverse set of anglers on a single vessel, generally advertising a wide range of species to be caught. Gulf headboats typically do not sell targeted trips specifically for DWG species. Therefore, NMFS does not expect for-hire vessels to alter their services sold because of this proposed rule. Any change in demand for these fishing services and associated economic effects because of this proposed rule would be a consequence of a change in anglers' behavior, secondary to any direct effect of the proposed rule on anglers and, therefore, an indirect effect of the proposed rule. This indirect effect would fall outside the scope of the RFA. In summary, only the impacts on commercial fishing businesses will be discussed.

As of July 8, 2021, there were 825 limited access valid or renewable commercial reef fish permits. In order to commercially harvest species in the DWG complex, a vessel permit must also be linked to an IFQ account and possess sufficient allocation for the species in the DWG complex. IFQ accounts can be opened, and valid permits can be linked to IFQ accounts, at any time during the year. Eligible vessels can receive DWG allocation from other IFQ participants. On average, from 2019 to 2023 there were 451 IFQ accounts that held DWG allocation, and 70 percent of those accounts held DWG shares. During the same period, each year there was an average of 145 federally permitted commercial reef fish vessels with reported landings of DWG ( printed page 24503) species in the Gulf. Their average annual vessel-level gross revenue from all species for 2019-2023 was approximately $346,490, and Gulf DWG landings accounted for approximately 10 percent of this revenue. From 2019 to 2023, the maximum annual revenue from all species reported by a single commercial vessel that landed Gulf DWG species was approximately $4.56 million in 2023. NMFS estimates the economic profits for these commercial vessels to be 39.9 percent of their annual gross revenue, on average, or $138,250 per vessel during this period. Although many fishing businesses own only one federally permitted vessel, some hold or own multiple Federal permits and vessels. Since comprehensive ownership data are currently unavailable for vessels harvesting Gulf DWG species, this analysis assumes that each of the 145 vessels is independently owned by a single business. This assumption is expected to result in an overestimate of the actual number of businesses directly regulated by this proposed rule. Additionally, on average from 2019 to 2023, 261 IFQ shareholder accounts possessed DWG shares but did not report any landings of DWG species. These account holders either only transferred DWG allocation or were inactive. NMFS assumes that each of these accounts is independently owned by a single business as well. Revenue and cost data are not collected directly from Gulf IFQ shareholders; therefore, estimates of economic profits for the Gulf IFQ commercial fishing businesses that did not report landings are unavailable.

For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (North American Industry Classification System code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. The information available to NMFS indicates that all of the commercial fishing businesses directly regulated by this proposed rule are small entities based on the NMFS size standard.

This proposed rule would set a new complex ACL that is equal to the complex ABC specified in Amendment 58B, which is 555,026 lb (251,755 kg). Under the status quo commercial sector allocation of 96.50 percent, the proposed complex ACL would result in a commercial ACL of 535,000 lb (242,672 kg), when rounded down to the nearest thousand pounds, and a commercial quota, as reduced 4 percent from the commercial ACL, of 514,000 lb (233,146 kg). Relative to average historical landings from 2018 to 2023 (excluding 2020 to remove the potential effects of COVID-19) of 746,230 lb (338,484 kg), this would result in an estimated reduction in landings of 232,230 lb (105,338 kg) per year. As discussed below, this proposed rule and Amendment 58B would also modify commercial and recreational allocation percentages and sector ACLs, and therefore, economic effects to small entities are quantified as part of that discussion.

Amendment 58B would revise the commercial sector allocation from 96.50 percent to approximately 89.7 percent of the complex ACL. This would result in a commercial ACL of 498,000 lb (225,889 kg) when rounded down to the nearest thousand pounds, and a commercial quota, as reduced 4 percent from the commercial ACL, of 478,000 lb (216,817 kg). Relative to average historical landings from 2018 to 2023, excluding 2020, this would result in an estimated reduction in commercial landings of 268,230 lb (121,667 kg) per year. NMFS anticipates that if the overall supply of DWG commercial landings decreases, the average price per lb would increase from the status quo average price of $6.66 per lb to $7.61 per lb. This is based on an uncompensated own-price flexibility for “Gulf Other Grouper,” inclusive of DWG species, of -0.396. The own-price flexibility is the percentage change in a product's price relative to the percentage change of a product's quantity sold. This shows the responsiveness of a product's price to the quantity being sold. Using the adjusted average price estimate of $7.61 and assuming the proposed quota would be harvested in full, annual ex-vessel revenue would be approximately $3.64 million, which represents a $1.33 million reduction relative to the status quo. The average vessel would experience a decrease of $9,172 in ex-vessel revenue and $3,669 in economic profits (approximately 3 percent of average annual ex-vessel revenue and economic profits).

The proposed rule may affect prices for DWG IFQ shares and allocation because it would make the fixed supply of DWG IFQ allocation scarcer. While these price changes cannot be quantified with current data, allocation transfer prices might increase. This would raise costs for some commercial fishing businesses that use transferred allocation to harvest DWG species or Other SWG species like speckled hind and warsaw grouper under the allowable flexibility measures. Assuming the percentage change in quantity of DWG IFQ allocation demanded is greater than the percentage change in price for DWG IFQ allocation, a market-driven increase in allocation prices would lead to a more than proportional drop in the volume of allocation moved, resulting in lower overall proceeds for DWG IFQ shareholders. Conversely, a decrease in prices would stimulate enough additional transfer volume to increase total proceeds. With respect to IFQ share value, if prospective DWG share buyers believe that a new commercial quota will result in lower future earnings from IFQ shares, then share prices would be expected to decrease. Otherwise, share values will stay the same or increase.

The following discussion describes the significant alternatives to the proposed rule that were not selected by NMFS.

One alternative, the no action alternative, was considered for the proposed action to modify the DWG complex ABC and complex ACL. This alternative would have retained the current ABC and complex ACL, both of which are equal to 1.105 million lb (0.501 million kg). These catch limits are based on the stock assessment results of SEDAR 22 for yellowedge grouper and Tier 3b of the FMP's ABC Control Rule for the other three species, which used recreational landings data from MRFSS. NMFS ceased using MRFSS to estimate recreational landings in 2013. Because this alternative would maintain the status quo catch limits for the DWG complex, no direct economic effects would be expected. This alternative was not selected because the catch limits under the no action alternative would exceed those currently recommended by the SSC, and thus, they are no longer consistent with the best scientific information available.

Three alternatives were considered for the proposed action to modify the DWG complex sector ACLs and sector allocations. The first alternative, the no action alternative, would retain the commercial sector allocation of 96.50 percent of the DWG complex ACL, which, when applied to the proposed DWG complex ACL, equates to 535,000 lb (242,672 kg) when rounded down to the nearest thousand pounds. This allocation would be based on landings during 2001-2004, and the recreational sector's ACL would remain unspecified. The commercial quota would be set ( printed page 24504) equal to the commercial ACL reduced by 4 percent or 514,000 lb (233,146 kg). NMFS calculates that this alternative, with its higher commercial catch limits relative to the proposed action, would result in a reduction in annual ex-vessel revenue that is approximately $210,000 less than what would be expected under the proposed action. This alternative was not selected because the recreational landings used to establish the status quo commercial sector allocation were based on recreational data from MRFSS, which do not account for the actual recreational removals that are present in both the MRIP-FES recreational data and the SEDAR 85 stock assessment. In addition, this alternative would not specify a recreational ACL, which is necessary to implement an effective recreational AM.

The second alternative would establish a recreational ACL and sector allocation based on the average recreational landings used in the Generic ACL/AM Amendment (2001-2004). This would result in a recreational ACL of 19,426 lb (8,811 kg), with a recreational sector allocation of 3.50 percent of the complex ACL. The second alternative would continue to allocate 96.50 percent of the complex ACL, or 535,000 lb (242,672 kg) when rounded down to the nearest thousand pounds, to the commercial sector. The commercial quota would be set equal to the commercial ACL reduced by 4 percent or 514,000 lb (233,146 kg). NMFS would expect this alternative, with its higher commercial catch limits relative to the proposed action, to result in a reduction in annual ex-vessel revenue that is approximately $210,000 less than what would be expected under the proposed action. Similar to the no action alternative, this alternative was not selected because the recreational landings used to establish the sector allocations would be based on recreational data from MRFSS, which do not account for the recreational removals that are present in both the MRIP-FES recreational data and the SEDAR 85 stock assessment.

The third alternative would establish a recreational ACL and sector allocation based on an equal reduction in the landings from the recreational and commercial sectors from the most recent 5 years (2019-2023), such that the resulting sector ACLs do not exceed the complex ACL. This would result in a recreational ACL of 37,964 lb (17,220 kg), with a recreational sector allocation of 6.84 percent of the complex ACL. The third alternative would allocate 93.16 percent of the complex ACL, or 517,000 lb (234,507 kg) when rounded down to the nearest thousand pounds, to the commercial sector. The commercial quota would be set equal to the commercial ACL reduced by 4 percent or 496,000 lb (224,982 kg). NMFS would expect this alternative, with its higher commercial catch limits relative to the proposed action, to result in a reduction in annual ex-vessel revenue that is approximately $100,000 less than what would be expected under the proposed action. This alternative was not selected because the smaller recreational ACL relative to the proposed rule would be more likely to be exceeded. Over the last 10 years (2014-2023), recreational landings would have exceeded the third alternative's recreational ACL seven times.

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

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

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

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

2. In § 622.39, revise paragraph (a)(1)(ii) to read as follows:

3. In § 622.41, revise paragraph (f) to read as follows:

91 FR 24500