[Federal Register Volume 80, Number 53 (Thursday, March 19, 2015)]
[Rules and Regulations]
[Pages 14328-14331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-06294]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 140728622-5225-02]
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: Final rule.

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SUMMARY: NMFS implements 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). This final rule revises the recreational 
accountability measures (AMs) by establishing a recreational annual 
catch target (ACT) and quota overage adjustment for red snapper in the 
exclusive economic zone (EEZ) of the Gulf of Mexico (Gulf). The purpose 
of this final 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.

DATES: This rule is effective April 20, 2015.

ADDRESSES: 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).
    On November 21, 2014, NMFS published a proposed rule for the 
framework action and requested public comment (79 FR 69418). The 
proposed rule and the framework action outline the rationale for the 
actions contained in this final rule. A summary of the actions 
implemented by the framework action and this final rule is provided 
below.

Management Measures Contained in This Final Rule

    This final rule revises 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 final rule establishes a red snapper recreational ACT by 
applying a buffer to the recreational quota that is based on the 
Council's annual catch limit (ACL)/ACT control rule developed in the 
Generic ACL/Amendment (76 FR 82044, December 29, 2011). The ACL/ACT 
control rule is used to determine the appropriate target catch levels 
that account for management uncertainty in maintaining catches at or 
below the ACL (quota). 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 the IFQ program has been in effect. For the recreational sector, 
the control rule recommends applying a 20-percent buffer to the quota 
primarily because the recreational quota has been exceeded in 3 of the 
last 4 years. When the 20-percent buffer is applied to the quota, it 
results in an ACT of 4.312 million lb (1.956 million kg), round weight.
    This final rule also revises the procedure for determining the 
recreational season length (closure date). Beginning in the 2015 
fishing year, the red snapper recreational season closure date will be 
based on when the recreational ACT will be met instead of when the 
recreational quota will be met. Using the ACT to set the season length 
serves as an in-season AM and 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 final rule also revises the recreational AMs to 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 will 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. If the quota is 
adjusted, the recreational ACT will also be reduced to maintain the 20-
percent buffer between the ACT and the adjusted quota.

Comments and Responses

    NMFS received a total of 40 public comments on the proposed rule: 2 
Comments from non-governmental organizations, 4 comments from fishing 
organizations, and the rest from individuals. Ten commenters submitted 
suggestions for the reef fish fishery that were outside the scope of 
the framework and the proposed rule, including comments related to 
reallocation between sectors, regional management, area closures, 
different fishing seasons, making red snapper a gamefish, and 
establishing a recreational tag system. A number of commenters also 
expressed opinions about the status of the red snapper stock. Eleven 
commenters stated general opposition to the rule, while 4 commenters 
expressed general

[[Page 14329]]

support for the rule. Only specific comments related to the actions 
contained in the framework and the proposed rule as well as NMFS' 
respective responses are summarized below.
    Comment 1: Accountability measures, such as ACTs and payback 
provisions are unreasonable requirements because the Marine 
Recreational Information Program (MRIP) was never designed to count, in 
real-time, the number of red snapper being harvested by anglers, and so 
these measures cannot be used for in-season quota monitoring.
    Response: NMFS disagrees that managing the recreational sector for 
Gulf red snapper with an ACT and requiring a payback is unreasonable. 
NMFS agrees that MRIP is not designed to count landings in real time. 
This is why the Federal red snapper recreational fishing season begins 
each year on June 1, and with implementation of this final rule, will 
remain open until the ACT is projected to be reached. The MRIP 
information, in combination with other landings and effort information, 
is used to project season lengths and is not used for in-season 
monitoring. Using the ACT to set the season accounts for uncertainty in 
the projections and is a reasonable method to help ensure the 
recreational quota is not exceeded. However, if the quota is exceeded, 
the payback provision mitigates possible biological consequences to the 
stock resulting from the overage. Using an ACT and a payback in this 
manner is consistent with the National Standard 1 Guidelines.
    Comment 2: After any red snapper recreational quota overage, the 
ACT should be reset using the Council's ACL/ACT control rule rather 
than just reducing the recreational quota by a fixed percentage. This 
would allow the buffer to change in response to changing management 
conditions.
    Response: NMFS disagrees that the ACT should be reset using the 
ACL/ACT control rule after a recreational quota overage. The ACT is not 
intended to address quota overages. The ACT is used to account for 
management uncertainty in setting the recreational season and is 
intended to help ensure that the quota is not exceeded. If a quota 
overage does occur, the payback provision, which reduces the quota by 
the amount of the overage and also reduces the ACT to keep a consistent 
20 percent buffer, mitigates for that excess harvest. Keeping a 
consistent buffer of 20 percent between the quota and ACT provides for 
more stable management of the recreational sector. If new information 
indicates that a 20 percent buffer may no longer be appropriate, the 
Council can consider revising the ACT. The ACL/ACT control rule would 
be used to determine one alternative for an appropriate buffer. The 
Council would also consider other reasonable alternatives before 
deciding whether to adjust the ACT.
    Comment 3: No AMs should be applied to the recreational sector 
until there is better data to determine red snapper recreational 
harvest.
    Response: NMFS disagrees that no AMs should be applied to the 
recreational sector until some unspecified time in the future. AMs are 
required by the Magnuson-Stevens Act and the AMs implemented in this 
final rule are consistent with that requirement and the National 
Standard 1 Guidelines. Further, estimates of red snapper landings used 
to support implementation of the AMs in this final rule are based on 
the best scientific information available as required by National 
Standard 2. Currently, NMFS uses historical landings data to project 
the length of the Federal season. This landings information is obtained 
from MRIP-based private angler/charter survey; the Southeast Region 
Headboat Survey; the Louisiana Department of Wildlife and Fisheries 
creel survey, and the Texas Parks and Wildlife Department creel survey. 
NMFS agrees there are opportunities to improve the landings data 
collection process and is collaborating with many of the Gulf states' 
marine fisheries resource agencies to make improvements in both data 
collection and data analysis.
    Comment 4: Because the red snapper allocation between the 
commercial and recreational sectors does not accurately reflect the 
actual use of the resource by the recreational sector, the AMs are 
unreasonable requirements.
    Response: NMFS disagrees that the AMs implemented by this rule are 
unreasonable requirements. As explained above, AMs are required by the 
Magnuson-Stevens Act, and both the ACT and payback provision are 
consistent with the National Standard 1 Guidelines. The framework 
action developed by the Council did not consider and this rule does not 
address the red snapper allocation between the recreational and 
commercial sectors. Thus, to the extent this comment is advocating for 
a change in the current allocation, it is beyond the scope of the 
current rulemaking. However, NMFS notes that the Council is currently 
evaluating alternatives to the current red snapper allocation in 
Amendment 28 to the FMP.
    Comment 5: Introducing further restrictions, like ACTs and 
paybacks, on the red snapper recreational sector would have detrimental 
economic impacts to the sector and coastal communities supported by 
recreational fishing. These impacts would be large because the 
recreational sector contributes more money into the local economies and 
creates more jobs than the commercial sector.
    Response: NMFS recognizes the economic importance of the 
recreational sector to many coastal communities; however, as discussed 
in the proposed rule and above, the Council has determined that 
implementing the ACT and payback provisions are necessary for the 
management of the recreational sector. Although the AMs are expected to 
result in economic losses to recreational fishing participants and 
their communities, the AM alternatives that were selected are expected 
to best achieve the objectives of the framework action while 
minimizing, to the extent practicable, adverse economic effects.
    Comment 6: The payback provision states that 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 unless the best 
scientific information available determines that a greater, lesser, or 
no overage adjustment is necessary. How will this determination be 
made?
    Response: NMFS will make the final determination about whether the 
best scientific information available shows that something other than a 
payback of 100 percent of the quota overage is necessary. However, NMFS 
anticipates that this scientific information will likely come from a 
red snapper stock assessment and would also be reviewed by the 
Council's Scientific and Statistical Committee. The rationale for an 
overage adjustment, if different from 100 percent, would be described 
in the Federal Register notice that is published when AMs are 
implemented.

Classification

    The Regional Administrator, Southeast Region, NMFS has determined 
that this final rule is necessary for the conservation and management 
of Gulf red snapper and is consistent with the framework action, the 
FMP, the Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared for 
this action. The FRFA incorporates the initial regulatory flexibility 
analysis (IRFA), a summary of the significant economic issues raised by 
public comment, NMFS' responses to those comments,

[[Page 14330]]

and a summary of the analyses completed to support the action. The FRFA 
follows.
    No public comments specific to the IRFA were received and, 
therefore, no public comments are addressed in this FRFA. Some comments 
with indirect socio-economic implications were received and these are 
addressed in the comments and responses section of this rule. No 
changes in the final rule were made in response to public comments.
    This final rule establishes a red snapper recreational ACT; revises 
the procedure for determining the recreational season length (closure 
date); and, adds a quota overage adjustment (payback) should the 
recreational quota be exceeded while the red snapper stock is 
overfished.
    NMFS agrees that the Council's choice of preferred alternatives 
will best achieve the Council's objectives for the framework action 
while minimizing, to the extent practicable, the adverse effects on 
fishers, support industries, and associated communities. The preamble 
of the proposed rule and this final rule provide a statement of the 
need for and objectives of this final rule, and it is not repeated 
here.
    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 final rule. 
Accordingly, this final rule does not implicate the Paperwork Reduction 
Act.
    NMFS expects this final rule 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' 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, 70 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 directly affected by this final 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 final rule will affect a substantial number of 
small entities. In addition, because all entities affected by this rule 
are small entities, 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 will further decrease in the 
following fishing year with the application of 100 percent of the 
recreational quota overage reduction from the following year's quota. 
In effect, establishing a payback provision will 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 quota, 
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 quota overage is low, the 
net operating revenue loss to the for-hire vessels will be 
approximately equivalent to the amount estimated above ($2.286 
million). If the quota 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 will 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 quota and the corresponding ACT 
will 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 will continue to lose the amount of 
net operating revenue estimated above. A recreational quota increase 
will alleviate some of the losses to the for-hire vessels.
    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

[[Page 14331]]

the for-hire component of the recreational sector. For this reason, the 
three alternatives were not selected.
    Three alternatives, including the preferred alternative (as fully 
described in the preamble), were considered for establishing a payback 
provision in case of recreational quota 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, 
and thus was rejected. The second alternative would establish a 100-
percent recreational quota 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 quota after the recreational quota 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, and therefore was rejected.
    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. As part of the rulemaking process, NMFS prepared a fishery 
bulletin, which also serves as a small entity compliance guide. The 
fishery bulletin will be sent to all interested parties.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Gulf, Quotas, Recreational, Red Snapper.

    Dated: March 13, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 622 is 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. 2015-06294 Filed 3-18-15; 8:45 am]
 BILLING CODE 3510-22-P