[Federal Register Volume 79, Number 225 (Friday, November 21, 2014)]
[Proposed Rules]
[Pages 69418-69420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27648]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 140728622-4622-01]
RIN 0648-BE44


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to implement management measures described in a 
framework action to the Fishery Management Plan for the Reef Fish 
Resources of the Gulf of Mexico (FMP), as prepared by the Gulf of 
Mexico Fishery Management Council (Council). If implemented, this rule 
would revise the recreational accountability measures (AMs) and 
establish a recreational annual catch target (ACT) for red snapper in 
the exclusive economic zone (EEZ) of the Gulf of Mexico (Gulf). The 
purpose of this proposed rule is to help achieve optimum yield (OY) for 
the Gulf red snapper resource and better ensure red snapper 
recreational landings do not exceed the recreational quota established 
in the rebuilding plan, in accordance with sections 303(a)(15) and 
407(d) of the Magnuson-Stevens Act (16 U.S.C. 1853(a)(15); 16 U.S.C. 
1883(d)).

DATES: Written comments must be received on or before December 22, 
2014.

ADDRESSES: You may submit comments on the proposed rule, identified by 
``NOAA-NMFS-2014-0120'' by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0120, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Peter Hood, Southeast 
Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    Electronic copies of the framework action, which includes an 
environmental assessment, a regulatory impact review, and a Regulatory 
Flexibility Act analysis may be obtained from the Southeast Regional 
Office Web site at http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/reef_fish/index.html.

FOR FURTHER INFORMATION CONTACT: Peter Hood, Southeast Regional Office, 
NMFS, telephone 727-824-5305; email: [email protected].

SUPPLEMENTARY INFORMATION: NMFS and the Council manage the Gulf reef 
fish fishery under the FMP. The Council prepared the FMP 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).

Background

    In 2013, the most recent Southeast Data, Assessment, and Review 
(SEDAR) benchmark assessment for Gulf red snapper (SEDAR 31), 
determined that the red snapper stock in the Gulf is no longer 
undergoing overfishing. However, it remains overfished and is in the 
14th year of a 31-year rebuilding plan that began in 2001 and that will 
remain in place through 2032. Beginning in the 2008 fishing year, 
following a substantial reduction in the quota in Amendment 27 to the 
FMP (73 FR 5117, January 29, 2008), NMFS began projecting the season 
length of the recreational season on an annual basis based on a June 1 
start date. However, due to difficulties in monitoring the recreational 
harvest and projecting the recreational season length, recreational 
quota overages have occurred regularly even though the recreational 
quota has been increasing annually since 2010.
    The Magnuson-Stevens Act requires the use of annual catch limits 
(ACLs) and AMs to end and prevent overfishing. For red snapper, NMFS 
determined the existing commercial and recreational quotas are 
functionally equivalent to sector ACLs, and the sum of the quotas is 
functionally equivalent to the stock ACL. Additionally, the commercial 
individual fishing quota (IFQ) program serves as an AM for the 
commercial sector. The recreational AM is currently an in-season 
closure based on annual projections of the recreational season length.
    The current recreational quota, implemented through a 2013 
framework amendment (78 FR 57318, September 18, 2013), is 5.390 million 
lb (2.445 million kg), round weight. The red snapper recreational 
season begins on June 1, each year. NMFS determines the length of the 
red snapper recreational season in advance of June 1, and announces the 
closure date in the Federal Register. Previously, this closure was 
based on projections of when the recreational quota would be caught, 
but for 2014, projections were based on an ACT that is 20 percent below 
the quota; this modification was implemented through an emergency rule 
(79 FR 27768, May 15, 2014).
    In September 2013, individual commercial fishermen and two 
commercial fishing interest groups filed a lawsuit challenging the 
rules implementing red snapper quotas for the 2013 fishing year and 
setting the 2013 recreational red snapper fishing season. In March 
2014, the Court ruled in favor of the plaintiffs (Guindon v. Pritzker, 
2014 WL 1274076; D.D.C. Mar. 26, 2014), finding in pertinent part that 
NMFS failed to require adequate AMs to prohibit the retention of fish 
after the recreational quota had been harvested and address any 
overages.

[[Page 69419]]

    To address the Court's decision and reduce the probability that the 
recreational sector would exceed its quota, the Council requested and 
NMFS issued an emergency rule for the red snapper recreational sector 
(79 FR 27768, May 15, 2014). The emergency rule implemented an AM that 
based the season length on an annual catch target (ACT) that was set 20 
percent below the recreational quota. Although the emergency rule 
established a recreational AM for 2014, permanent recreational AMs are 
still needed for the 2015 and subsequent fishing years.

Management Measures Contained in This Proposed Rule

    If implemented, this proposed rule would establish a red snapper 
recreational ACT and revise the red snapper recreational AMs to support 
management efforts to maintain landings within the recreational quota 
and to mitigate any recreational quota overages should they occur.

Red Snapper Recreational ACT and Season Length

    This proposed rule would establish a red snapper recreational ACT 
by applying a buffer to the recreational quota that is based on the 
Council's ACL/ACT control rule developed in the Generic ACL/Amendment 
(76 FR 82044, December 29, 2011). The ACL/ACT control rule establishes 
a process for determining the appropriate target catch levels that 
account for management uncertainty in maintaining catches at or below 
the ACL. The control rule is intended to be applied separately to the 
recreational and commercial sectors because each sector has different 
levels of management uncertainty. The control rule recommends no buffer 
be applied to the quota for the red snapper commercial sector because 
the sector is managed by an IFQ program, has accurate landings data, 
and has not exceeded its quota in the last 7 years of the IFQ program 
being in effect. For the recreational sector, the control rule 
recommends applying a 20 percent buffer to the quota primarily because 
of the recreational quota overages in 3 of the last 4 years. Applying 
the 20 percent buffer to the quota results in an ACT of 4.312 million 
pounds.
    This proposed rule would also revise the procedure for determining 
the recreational season length (closure date). Beginning with the 2015 
fishing year, the red snapper recreational season closure date would be 
based on the recreational ACT instead of the recreational quota. Using 
the ACT to set the season length is an in-season AM that reduces the 
probability of exceeding the recreational quota during a fishing year 
from 50 percent to 15 percent.

Red Snapper Recreational Post-Season AM

    This rule would revise the recreational AMs to also include a quota 
overage adjustment (payback) should the recreational quota be exceeded 
while the red snapper stock is overfished. If red snapper are 
overfished and the recreational quota is exceeded, then in the year 
following the overage, the recreational quota would be reduced by the 
amount of the recreational quota overage in the prior fishing year, 
unless the best scientific information available determines that a 
greater, lesser, or no overage adjustment is necessary. The 
recreational ACT would also be reduced to maintain the 20 percent 
buffer between the ACT and the adjusted quota. This post-season AM is 
consistent with the National Standard 1 guidelines for stocks that are 
in a rebuilding plan, as is the case for Gulf red snapper.

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 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.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA), as 
required by section 603 of the Regulatory Flexibility Act, for this 
proposed rule. The IRFA describes the economic impact this rule, if 
adopted, would have on small entities. A description of the action, why 
it is being considered, the objectives of, and 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 copy of the full analysis 
is available from NMFS (see ADDRESSES). A summary of the IRFA follows.
    The Magnuson-Stevens Act provides the statutory basis for this 
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 rule. Accordingly, 
this rule does not implicate the Paperwork Reduction Act.
    This rule, if implemented, would be expected to directly affect 
federally permitted for-hire vessels operating in the Gulf reef fish 
fishery. The for-hire sector is comprised of charter boats and 
headboats (party boats). Although charter boats tend to be smaller in 
length, on average, than headboats, the key distinction between the two 
types of operations is how the fee is determined. On a charter boat 
trip, the fee charged is for the entire vessel, regardless of how many 
passengers are carried, whereas the fee charged for a headboat trip is 
paid per individual angler.
    A Federal Gulf charter/headboat permit has been required for reef 
fish since 1996 and the sector currently operates under a limited 
access permit system. In 2013, there were 1,190 valid (non-expired) or 
renewable Gulf of Mexico Charter/Headboat Reef Fish Permits. A 
renewable permit is an expired permit that may not be actively fished, 
but is renewable for up to 1 year after expiration. Although the for-
hire permit application collects information on the primary method of 
operation, the permit itself does not identify the federally permitted 
vessel as either a headboat or a charter boat. Operation as either a 
headboat or charter boat is not restricted by the Federal permitting 
regulations, and vessels may operate in both capacities. However, only 
federally permitted headboats are required to submit harvest and effort 
information to NMFS' Headboat Survey (HBS). Participation in the HBS is 
based on determination by the NMFS Southeast Fisheries Science Center 
(SEFSC) that the vessel primarily operates as a headboat. In 2013, 
seventy Gulf vessels were registered in the HBS. As a result, 1,120 of 
the vessels with a valid or renewable reef fish charter/headboat permit 
are expected to operate as charter boats. The average charter boat is 
estimated to earn approximately $83,000 (2013 dollars) in gross annual 
revenue and the average headboat is estimated to earn approximately 
$251,000 (2013 dollars) in gross annual revenue.
    The Small Business Administration established size criteria for all 
major industry sectors in the U.S. including fish harvesters and for-
hire operations. A business involved in finfish harvesting is 
classified as a small business if independently owned and operated, is 
not dominant in its field of operation (including its affiliates), and 
its combined annual receipts are not in excess of $20.5 million (NAICS 
code 114111, finfish fishing) for all of its affiliated operations 
worldwide. For for-hire vessels, all qualifiers apply except that the 
annual receipts threshold is $7.5 million (NAICS code 487210, 
recreational industries).
    Based on the revenue figures above, all for-hire vessels expected 
to be

[[Page 69420]]

directly affected by this rule are determined for the purpose of this 
analysis to be small business entities.
    Because all entities expected to be affected by this rule are small 
entities, NMFS has determined that this rule would affect a substantial 
number of small entities. Moreover, the issue of disproportionate 
effects on small versus large entities does not arise in the present 
case.
    Establishing an ACT, which serves as the basis for estimating the 
length of the recreational red snapper fishing season, is expected to 
reduce net operating revenues (the return used to pay all labor wages, 
returns to capital, and owner profits) of all Gulf reef fish for-hire 
vessels (charter and headboats) by a combined total of approximately 
$2.286 million (2013 dollars) in the first year this rule is 
implemented. If there are no recreational quota overages, this amount 
will be the annual net operating revenue loss to the for-hire vessels. 
If recreational quota overages occur in a fishing year, and red snapper 
are overfished, net operating revenues would further decrease in the 
following fishing year with the application of 100 percent of the 
recreational ACL overage reduction from the following year's quota. In 
effect, establishing a payback provision would tend to increase the 
potential losses in net operating revenue to the for-hire vessels.
    An important feature associated with the payback provision is the 
uncertainty of the occurrence and level of overages. Under the proposed 
buffer of 20 percent for deriving the ACT from the recreational ACL, 
the probability of exceeding the quota is estimated at 15 percent. At 
this probability level, the occurrence of an overage is relatively low. 
However, should an overage occur, the overage level could be 
insignificant or could be substantial. If the ACL overage is low, the 
net operating revenue loss to the for-hire vessels would be 
approximately equivalent to the amount estimated above ($2.286 
million). If the ACL overage is substantial, it could result in setting 
the ACT at zero the following year. In this case, net operating revenue 
loss to the for-hire vessels could be relatively substantial, with some 
unknown number of for-hire businesses possibly exiting the industry as 
a result of revenue loss. The year after that overage adjustment, 
however, the recreational ACL and the corresponding ACT would be 
restored as there would be no overages in the previous year if the ACT 
had been set at zero. Assuming no increases in the recreational red 
snapper quota, for-hire vessels would continue to lose the amount of 
net operating revenue estimated above. A recreational quota increase 
would alleviate some of the losses to the for-hire vessels.
    Given the uncertainty discussed above, it cannot be ascertained 
whether the effects of the rule on the net operating revenues of for-
hire vessels would be significant. The public, therefore, is encouraged 
to address this issue during the public comment period.
    The following discussion analyzes the alternatives that were not 
selected as preferred by the Council. Five alternatives, including the 
preferred alternative (as fully described in the preamble), were 
considered for setting a red snapper recreational ACT. The first 
alternative, the no action alternative, would not establish an ACT. 
This alternative is associated with the highest probability of 
exceeding the recreational quota and so would not address the need to 
better control the recreational harvest to the sector's quota. The 
other three alternatives would establish an ACT by applying a buffer of 
30 percent, 40 percent, or 60 percent to the quota. Relative to the 
preferred alternative, each of these three alternatives would result in 
a lower ACT and therefore greater loss in net operating revenues for 
the for-hire component of the recreational sector.
    Three alternatives, including the preferred alternative (as fully 
described in the preamble), were considered for establishing a payback 
provision in case of recreational ACL overages. It is noted that the 
payback provision only applies when red snapper are overfished. The 
first alternative, the no action alternative, would not establish a 
payback provision. This alternative would not address the need to 
mitigate for overages that may negatively impact the rebuilding plan. 
The second alternative would establish a 100 percent recreational ACL 
payback provision, similar to the preferred alternative, and in 
addition would further reduce the adjusted ACT in the following season 
by 100 percent, 50 percent, or 30 percent of the quota overage. The 
adjusted ACT is derived by applying the 20 percent buffer to the ACL 
after the recreational ACL is reduced by the amount of overage. This 
alternative, together with any of its additional options to further 
reduce the following season's overage adjusted ACT, would be expected 
to result in higher net operating revenue losses for the for-hire 
sector.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Gulf, Quotas, Red snapper.

    Dated: November 18, 2014.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 622 is 
proposed to be amended 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.  622.41, paragraph (q) is added to read as follows:


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

* * * * *
    (q) Red snapper--(1) Commercial sector. [Reserved]
    (2) Recreational sector. (i) The AA will determine the length of 
the red snapper recreational fishing season based on when recreational 
landings are projected to reach the recreational ACT specified in 
paragraph (q)(2)(iii) of this section, and announce the closure date in 
the Federal Register. This will serve as an in-season accountability 
measure. On and after the effective date of the recreational closure 
notification, the bag and possession limit for red snapper is zero.
    (ii) In addition to the measures specified in paragraph (q)(2)(i) 
of this section, if red snapper recreational landings, as estimated by 
the SRD, exceed the applicable quota specified in Sec.  
622.39(a)(2)(i), and red snapper are overfished, based on the most 
recent Status of U.S. Fisheries Report to Congress, the AA will file a 
notification with the Office of the Federal Register to reduce the 
recreational quota by the amount of the quota overage in the prior 
fishing year, and reduce the recreational ACT specified in paragraph 
(q)(2)(iii) of this section (based on the buffer between the ACT and 
the quota specified in the FMP), unless the best scientific information 
available determines that a greater, lesser, or no overage adjustment 
is necessary.
    (iii) The recreational ACT for red snapper is 4.312 million lb 
(1.956 million kg), round weight.

[FR Doc. 2014-27648 Filed 11-20-14; 8:45 am]
BILLING CODE 3510-22-P