[Federal Register Volume 81, Number 82 (Thursday, April 28, 2016)]
[Rules and Regulations]
[Pages 25576-25583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09892]



[[Page 25575]]

Vol. 81

Thursday,

No. 82

April 28, 2016

Part IV





Department of Commerce





-----------------------------------------------------------------------





National Oceanic and Atmospheric Administration





-----------------------------------------------------------------------





50 CFR Part 622





Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef 
Fish Fishery of the Gulf of Mexico; Red Snapper Management Measures; 
Amendment 28; Final Rule

  Federal Register / Vol. 81 , No. 82 / Thursday, April 28, 2016 / 
Rules and Regulations  

[[Page 25576]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 130919819-6040-02]
RIN 0648-BD68


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Red Snapper Management 
Measures; Amendment 28

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS issues regulations to implement management measures 
described in Amendment 28 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) (Amendment 28). Amendment 
28 and this final rule revise the Gulf of Mexico (Gulf) red snapper 
commercial and recreational sector allocations of the stock annual 
catch limits (ACLs). As a result of the revised sector allocations, 
this final rule revises the red snapper commercial and recreational 
quotas (which are equivalent to the ACLs) and the recreational annual 
catch targets (ACTs). This final rule also sets the Federal charter 
vessel/headboat and private angling component quotas and ACTs based on 
the revised recreational sector ACLs and ACTs. The purpose of this 
final rule and Amendment 28 is to reallocate the Gulf red snapper 
harvest consistent with the 2014 red snapper assessment update while 
ensuring the allowable catch and recovery benefits from the rebuilding 
red snapper stock are fairly and equitably allocated between the 
commercial and recreational sectors.

DATES: This final rule is effective May 31, 2016.

ADDRESSES: Electronic copies of Amendment 28, which includes an 
environmental impact statement (EIS), a fishery impact statement, a 
Regulatory Flexibility Act (RFA) analysis, and a regulatory impact 
review, may be obtained from the Southeast Regional Office Web site at 
http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/reef_fish/2013/am28/index.html.

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

SUPPLEMENTARY INFORMATION:

Background

    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 (Magnuson-Stevens) Act.
    On December 24, 2015, NMFS published a notice of availability for 
Amendment 28 and requested public comment (80 FR 80310). On January 25, 
2016, NMFS published a proposed rule for Amendment 28 and requested 
public comment (81 FR 4010). The proposed rule and Amendment 28 outline 
the rationale for the actions contained in this final rule. A summary 
of the actions implemented by Amendment 28 and this final rule is 
provided below.
    The Gulf red snapper stock is currently overfished and is under a 
rebuilding plan projected to end in 2032. Consistent with the 
rebuilding plan, both the commercial and recreational quotas have been 
allowed to increase as the red snapper stock has recovered. The red 
snapper commercial and recreational ACLs are equal to the applicable 
quotas.
    The Magnuson-Stevens Act requires that in allocating fishing 
privileges among fishermen, such allocation shall be fair and equitable 
to all such fishermen, reasonably calculated to promote conservation, 
and carried out in such a manner that no particular individual, 
corporation, or other entity acquires an excessive share of such 
privileges. For stocks like red snapper, which are subject to a 
rebuilding plan, the Act requires that harvest restrictions and 
recovery benefits be allocated fairly and equitably among the fishing 
sectors. These mandates are intended to ensure that fishery resources 
are managed for the greatest overall benefit to the nation, 
particularly with respect to providing food production and recreational 
opportunities, and protecting marine ecosystems.
    The purpose of Amendment 28 is to reallocate red snapper harvest 
from the commercial sector to the recreational sector, consistent with 
the 2014 red snapper update assessment, to ensure that the allowable 
catch and recovery benefits from a rebuilding stock are fairly and 
equitably allocated between the sectors. The current commercial 
allocation is reduced from 51 percent to 48.5 percent of the stock ACL 
and the recreational allocation is increased from 49 percent to 51.5 
percent of the stock ACL. This shift in allocation is based on the 
increase in the total allowable harvest attributable to the calibration 
of Marine Recreational Information Program (MRIP) catch estimates that 
were used in a 2014 update assessment. This final rule implements the 
shift in allocation by modifying the commercial and recreational quotas 
as well as recreational component quotas consistent with the revised 
red snapper allocation. This final rule also revises the applicable 
ACTs. All weights described in this final rule are in round (whole) 
weight.

Allocation

    Amendment 28 revises the Gulf red snapper allocation to 48.5 
percent of the stock ACL to the commercial sector and 51.5 percent of 
the stock ACL to the recreational sector. This shift in allocation is 
intended to help maintain a fair and equitable distribution of recovery 
benefits by recognizing that future recreational harvest will be 
monitored based on an improved methodology that result in higher 
landings estimates. This allocation is also reasonably calculated to 
promote conservation because the resulting commercial and recreational 
quotas keep the harvest under the overfishing limit, new accountability 
measures that have been implemented for the recreational sector are 
constraining harvest to the recreational quota, and the shift in 
allocation is not expected to affect the speed of recovery to the Gulf-
wide management rebuilding target.

Quotas, ACLs, and ACTs

    Given the red snapper stock ACLs of 13.96 million lb (6.33 million 
kg) for the 2016 fishing year and 13.74 million lb (6.23 million kg) 
for the 2017 fishing year, this final rule revises the commercial quota 
to 6.768 million lb (3.070 million kg) and 6.664 million lb (3.023 
million kg) for the 2016 and 2017 fishing years and the recreational 
quota to 7.192 million lb (3.262 million kg) and 7.076 million lb 
(3.210 million kg) for the 2016 and 2017 fishing years. Because this 
final rule to implement Amendment 28 and reallocate the red snapper 
stock ACL was due to occur after January 1, 2016, a framework action 
was developed by the Council and implemented by NMFS that held back the 
percentage of the 2016 commercial quota necessary to implement 
Amendment 28 in 2016 (80 FR 73999, November 27, 2015). The revised 
commercial quota for 2016 reflects the portion of the quota held back 
on January 1, 2016.
    For the recreational sector, the ACT is set 20 percent less than 
the recreational

[[Page 25577]]

quota and result in ACTs of 5.754 million lb (2.610 million kg) for 
2016 and 5.661 million lb (2.568 million kg) for 2017. As described in 
Amendment 40 to the FMP, the recreational quota and ACT are further 
divided into Federal charter vessel/headboat and private angling 
component quotas and ACTs based on an allocation of 42.3 percent to the 
Federal charter vessel/headboat component and 57.7 percent to the 
private angling component (80 FR 22422, April 22, 2015). As a result, 
this final rule sets the 2016 and 2017 Federal charter vessel/headboat 
component quotas at 3.042 million lb (1.380 million kg) and 2.993 
million lb (1.358 million kg), and the component ACTs at 2.434 million 
lb (1.104 million kg) and 2.395 million lb (1.086 million kg), 
respectively. The rule also sets the 2016 and 2017 private angling 
component quotas at 4.150 million lb (1.882 million kg) and 4.083 
million lb (1.852 million kg), and the component ACTs at 3.320 million 
lb (1.506 million kg) and 3.266 million lb (1.481 million kg), 
respectively. The 2016 and 2017 season lengths for each component will 
be determined using the revised component ACTs.

Comments and Responses

    A total of 143 comments were received on Amendment 28 and the 
proposed rule, including comments from individuals, 1 non-governmental 
organization, and 5 fishing associations. NMFS received 26 comments in 
opposition to Amendment 28 or the proposed rule and 25 comments in 
support of Amendment 28 and the proposed rule. Comments in support of 
the action state that providing more red snapper to the recreational 
sector is needed, but many also state that more fish should have been 
allocated to the recreational sector than the allocation in Amendment 
28. In addition to these comments, a minority report was submitted by 4 
of the 5 members of the Council who voted against approval of Amendment 
28.
    The remaining comments either expressed a general frustration with 
red snapper management or suggested other methods to manage red snapper 
fishing. Comments in this category suggested: Giving management of red 
snapper to the Gulf states, rescinding the establishment of the Federal 
for-hire and private angling components, using tags to track the red 
snapper recreational harvest, and managing red snapper as a game fish 
(i.e., no commercial harvest). Although these measures could be 
developed in another action, Amendment 28 does not address these topics 
because they are outside the scope of this action. Specific comments 
related to the actions contained in the amendment and the rule as well 
as NMFS' respective responses, are summarized below.
    Comment 1: Amendment 28 violates 407(d)(2) of the Magnuson-Stevens 
Act.
    Response: NMFS disagrees. In the proposed rule, NMFS made a 
preliminary determination that Amendment 28 is consistent with section 
407(d)(2) of the Magnuson-Stevens Act, concluding that to give effect 
to all of the provisions of the statute: (1) The Council complied with 
the mandates of section 407(d)(2) by establishing a recreational quota 
in 1997 that reflected the previously established allocation; and (2) 
that this provision does not prohibit future action to adjust the 
allocations as necessary to ensure consistency with the other general 
requirements of the Magnuson-Stevens Act, such as National Standard 2, 
National Standard 4, and section 303(a)(14).
    The comment suggests that this preliminary determination is wrong 
because: (1) Section 407(d) expressly refers to ``any fishery 
management plan, plan amendment, or regulation submitted . . . after 
the date of the enactment of the Sustainable Fisheries Act''; (2) 
Congress did not remove the provision when the Magnuson-Stevens Act was 
reauthorized in 2007 and also added section 303A(h) as part of the new 
provisions addressing limited access privilege programs, which states 
that nothing in the Magnuson-Stevens Act or reauthorization shall be 
construed to require a reallocation; and (3) to the extent the more 
general provision of the Magnuson-Stevens Act are in conflict with 
section 407(d)(2), that specific provision must control. However, as 
NMFS previously described, Section 407(d)(2) must be read in context 
with the rest of section 407(d) as well as the Magnuson-Stevens Act as 
a whole. The commenter's interpretation of subdivision (d)(2) would 
prohibit any adjustments to an allocation that was established over 25 
years ago even when better scientific data reflects a more complete 
understanding of historical recreational landings. This interpretation 
is not consistent with subdivision (d) as a whole, which expressly 
contemplates specific action to address the lack of a recreational 
quota but does not speak to future adjustments to that allocation. The 
specific language in section 407(d)(2) is not in conflict with the 
other general provisions of the Magnuson-Stevens Act because all of the 
provisions can be read as a consistent whole, with effect given to 
every part of the statute. Further, there is nothing that indicates any 
intent to exclude the allocations of red snapper from these general 
requirements, and it is clear that Congress knew how to make such an 
exception. For example, the general referendum requirements in section 
303A(c)(6)(D) address the referendum requirements in section 407(c), 
providing: ``The provisions of section 407(c) of this Act shall apply 
in lieu of this subparagraph for an individual fishing quota program 
for the Gulf of Mexico commercial red snapper fishery.'' 16 U.S.C. 
1853a(c)(6)(D)(iii).
    Comment 2: Amendment 28 is not fair and equitable as required by 
National Standard 4 and Magnuson-Stevens Act Section 303(a)(14) because 
the reallocation unfairly penalizes the commercial sector, which has 
not exceeded the commercial quota since the implementation of the IFQ 
program and because Amendment 28 fails to address the economic impact 
of the harvest restrictions or recovery benefits on the participants in 
each of the commercial, recreational, and charter fishing sectors.
    Response: National Standard 4 requires, in relevant part, that any 
allocation be fair and equitable, and reasonably calculated to promote 
conservation. Section 303(a)(14) requires that any rebuilding plan that 
reduces harvest in a fishery allocate harvest restrictions and recovery 
benefits fairly and equitably among the commercial, private 
recreational, and charter fishing components. As described in the 
proposed rule, the allocation is fair and equitable because it 
addresses changes in the methodology in collecting recreational 
landings information that indicate recreational harvests have been 
underestimated and that the red snapper stock is more productive than 
previously thought. Allocating the quantifiable increase in the total 
allowable harvest attributable to the calibration to the recreational 
sector is a straightforward way to reconcile prior underestimates with 
the result of the revised survey methodology that recognizes more 
reliable higher recreational catch estimates. Thus, this shift in 
allocation is intended to help maintain a fair and equitable 
distribution of recovery benefits.
    An economic analysis of all alternatives considered in Amendment 
28, including those based on MRIP recalibration (Alternatives 8 and 9), 
has been included in the EIS integrated with Amendment 28. For each 
alternative in the amendment, losses to the commercial sector and 
potential gains to the recreational sector have been

[[Page 25578]]

quantified to the extent possible. The MRIP recalibration found that 
the red snapper stock productivity was previously underestimated, 
implying that the stock ACL in previous years could have been higher. 
It should be stressed, however, that the setting of red snapper 
commercial and recreational ACLs in previous years and accompanying 
economic analysis were based on the best information available at that 
time. Subsequently, information from the MRIP calibration, ultimately 
determined to be the best scientific information available, became 
available but could not have been previously anticipated. Similarly, 
neither could potential economic effects, including changes in economic 
activities, to either sector arising from such information. The 
recreational sector may have benefited from exceeding its quota but the 
extent of these benefits was constrained by the shortened fishing 
season. In the future, recreational overages would be limited due to 
the accountability measure changes for the sector implemented in 2015 
(80 FR 14328, March 19, 2015). Since 2007, the commercial sector has 
benefited from the introduction of the IFQ system despite being 
effectively constrained to its quota. The MRIP recalibration has 
resulted in increasing the red snapper stock ACL, benefiting both the 
commercial and recreational sectors. Given the higher stock ACL, the 
proposed reallocation would increase the benefits to the recreational 
sector and would limit, but not eliminate, the benefit increases to the 
commercial sector.
    Comment 3: Amendment 28 does not promote conservation as required 
by National Standard 4 and violates 303(a)(1)(A) of the Magnuson-
Stevens Act by failing to protect, restore, and promote the long-term 
health of the fishery because it will reduce the spawning potential 
ratio (SPR) for the eastern portion of red snapper stock.
    Response: NMFS disagrees. Although under the new allocation the 
projections indicate that the SPR would decline in the eastern Gulf 
portion of the red snapper stock, the SPR is also projected to decline 
in the eastern Gulf under the status quo allocation. Further, the 
projected decline from the shift in allocation is expected to be 
similar to the status quo because the proposed change in the allocation 
ratio is small (2.5 percent), which is less than 0.5 million lb (0.23 
million kg), and the recreational ACT requires NMFS to project season 
lengths based on a catch target that is almost 1.5 million lb (0.68 
million kg) less than the recreational quota.
    The Council currently manages the Gulf red snapper stock as one 
Gulf-wide stock with a Gulf-wide status determination criteria and a 
Gulf-wide rebuilding plan. The Council selected the allocation 
alternative in Amendment 28 instead of the greater shift in allocation 
presented in another MRIP-based option (Alternative 9) in part to avoid 
higher declines in SPR for the eastern Gulf. Any decrease in the SPR in 
the eastern Gulf is expected to be offset by a larger increase of SPR 
in the western Gulf, which results in a Gulf-wide recovery of red 
snapper under the rebuilding plan. Further, the resulting commercial 
and recreational quotas keep the harvest under the overfishing limit, 
and new accountability measures that have been implemented for the 
recreational sector are constraining harvest to the recreational quota. 
Thus, the amendment does promote conservation.
    The commenter also stated the SPR projections included in Amendment 
28 are not based on rational assumptions related to selectivity and 
discard mortality. Specifically, the commenter asserted that the 
projections assumed that selectivity would remain unchanged until 2032, 
which is unrealistic, and there would be a 10 percent discard mortality 
rate, which is based on the use of a venting tool that is no longer 
required as of August 2013 (78 FR 46820, August 2, 2013). The commenter 
stated a 21 percent discard mortality rate should be applied to any 
stock projections and to support this comment included analyses 
conducted by a consulting firm. These analyses, which were only 
provided to the NMFS in February 2016, have not been presented to the 
Council's Scientific and Statistical Committee (SSC) or the Council. 
Further, these analyses do not present any information that indicates 
that the selectivity will change or that the removal of the venting 
tool requirement will necessarily result in a substantially higher 
discard mortality rate. With respect to release mortality, the analyses 
recognize that the venting tool requirement was removed to allow 
fishermen the ability to choose methods or tools appropriate for their 
situation when releasing reef fish. The venting tool requirement was 
removed based on the advice from the Council's SSC, which concluded 
that although some information shows that venting tools are helpful to 
reducing barotrauma, the use of descent devices may be preferable to 
venting in some situations, there is evidence that some fishermen use 
improper methods to vent fish, and there are situations such as fishing 
in shallow waters when neither venting nor decent devices are needed. 
Further, NMFS, Sea Grant, and state marine resource agencies promote 
educational and outreach activities encouraging fishermen to use 
venting tools and decent devices. Circle hook and dehooking device 
regulations to minimize bycatch and bycatch mortality that were put in 
place with the venting tool requirement also remain in place. The 
foregoing explains the rational basis for the Council's decision to 
rely on the projections provided by the Southeast Fisheries Science 
Center (SEFSC).
    Comment 4: Amendment 28 violates 303(a)(1)(A) of the Magnuson-
Stevens Act by creating instability in the commercial sector.
    Response: NMFS disagrees that Amendment 28 will create instability 
in the commercial sector. In terms of season length, ex-vessel prices, 
no quota overages, enhanced safety at sea, and absence of other race to 
fish (derby) conditions, stability in the commercial sector, which 
operates under an IFQ program, would remain unaffected by the 
reallocation in this final rule. The commercial red snapper sector was 
stable when the commercial quota was as low as 3.315 million lb (1.504 
million kg) in 2007 when the IFQ program was established, and would be 
expected to remain stable at the 2016 and 2017 quota levels that are 
more than twice the 2007 quota. Even with possible future commercial 
quota reductions, the type of stability described above would still 
occur.
    Although the lessened allocation ratio for the commercial sector 
would reduce the availability of IFQ allocations, which in turn could 
put upward pressure on allocation prices, this condition is more likely 
to arise with larger changes to the allocation ratio than the minimal 
one selected in Amendment 28. This could be challenging to buyers of 
IFQ allocations, such as small IFQ shareholders and more recent 
entrants, and, the lessened allocation ratio could disrupt the stable 
planning horizon of commercial fishermen as they may need to re-scale 
their operations due to lower than expected IFQ allocations, although 
the scale of these effects under Amendment 28 would be minimal. 
Further, this sort of instability may be expected to diminish over time 
as fishermen adjust to the new allocation ratio. Nevertheless, it is 
likely that the commercial sector's dissatisfaction with the allocation 
change would persist for some time.
    Comment 5: Amendment 28 violates the Council's allocation policy 
because the reallocation is not connected to the

[[Page 25579]]

achievement of optimum yield (OY), frustrates the FMP objective of 
rebuilding the stock because of declines in SPR in the eastern Gulf, 
does not promote a rational or easily managed use of the resource, will 
not increase efficiency or benefit the recreational sector, and will 
not provide for the sustained participation of fishing communities in 
the eastern Gulf.
    Response: NMFS disagrees that the reallocation is not consistent 
with the Council's allocation policy. Although this final rule 
redistributes quota from the commercial sector, which has little 
management uncertainty, to the recreational sector, which has greater 
management uncertainty, that is currently addressed by using a 20 
percent buffer between the recreational ACL and ACT. The use of an ACT 
is not inconsistent with the requirement under National Standard 1 to 
achieve OY on a continuing basis. The ACT is the amount of annual catch 
that is intended to control actual catch at or below the ACL, 50 CFR 
600.310(f)(2)(v), while OY is ``a long-term average amount of desired 
yield from a stock.'' 50 CFR 600.310(e)(3)(ii). The National Standard 
Guidelines explain the use of the phrase ``achieving, on a continuing 
basis, the optimum yield from each fishery'' in National Standard 1 in 
that context. 50 CFR 600.310(e)(3)(i)(B). For the recreational sector, 
the ACT is intended to help achieve OY by ensuring that overfishing 
does not occur and the red snapper stock continues to rebuild, 
consistent with Sec.  600.310(3)(3)(i)(B).
    The reallocation in this final rule does not conflict with the FMP 
objective to rebuild the red snapper stock throughout the Gulf. As 
discussed above, Gulf red snapper is managed as one Gulf-wide stock. 
This stock has Gulf-wide status determination criteria and is managed 
to achieve a Gulf-wide rebuilding plan. Although the stock condition is 
not uniform over the entire management unit, the stock is not 
undergoing overfishing and is rebuilding as scheduled under the 
rebuilding plan.
    Amendment 28 addresses the results of changes in the methodology in 
collecting recreational landings information that indicate that 
recreational harvests have been underestimated, allowed for increases 
in the acceptable biological catch (ABC), and the implementation of 
higher quotas for both the recreational and commercial sectors. The 
reallocation in this final rule will promote a rational, more easily 
managed resource by reconciling new information that shows past 
recreational landings were underestimated with the fact that future 
recreational harvest will be monitored based on an improved methodology 
that recognizes more reliable higher landings estimates.
    With respect to efficiency, the Council's allocation policy states 
that allocation shall consider efficient utilization of fishery 
resources, but should not just redistribute gains and burdens without 
an increase in efficiency. Amendment 28 contains a lengthy 
consideration of the issue of efficiency in the utilization of the red 
snapper resource, including an economic study conducted by the SEFSC, 
reviewed by the Council's Socioeconomic SSC and presented to the 
Council in October 2012, which concludes that the current allocation is 
inefficient. In developing Amendment 28, the Council did consider 
efficiency in evaluating the effects of reallocation but could not 
definitively conclude that it would increase or decrease efficiency in 
the utilization of the red snapper resource. Amendment 28 also notes 
that, in principle, benefits to the recreational sector would accrue 
from a quota increase as a result of the reallocation, because each 
additional fish made available for harvest by the sector has value to 
the sector. However, certain conditions, such as state red snapper 
regulations that are inconsistent with Federal regulations, would tend 
to limit the extent of such benefits for anglers in Federal waters.
    Amendment 28 includes a description of several commercial and 
recreational fishing communities throughout the Gulf and an analysis of 
the social and economic effects on fishing communities in general. The 
nature of social and economic effects on these communities resulting 
from the decline in SPR in the eastern Gulf is discussed in more 
general terms as part of the effects analysis for each allocation 
alternative. Negative or positive social and economic effects on the 
commercial or recreational sector, as a whole, would imply similar 
directional effects on the sector's fishing communities and these 
effects would vary by area or by the degree of dependence on red 
snapper. The decline in SPR in the eastern Gulf is relatively small so 
as not to pose as a significant threat to the sustained participation 
of fishing communities in the red snapper segment of the reef fish 
fishery. Moreover, NMFS notes that negative effects experienced by 
those fishing for red snapper would be mitigated by the presence of 
other species important to the fishing communities.
    Comment 6: Amendment 28 violates National Standard 2 because the 
recalibration methods used in the stock assessment were not based on 
the best scientific information available and state landings 
information was not referenced in the amendment.
    Response: NMFS disagrees. The 2014 update red snapper stock 
assessment and a revision to that assessment were reviewed by the 
Council's SSC, and in both cases, the SSC determined that the 
assessments, both using the MRIP recalibrated landings data, were based 
on the best scientific information available, consistent with National 
Standard 2. In addition, the SEFSC reviewed Amendment 28 and in a 
memorandum dated October 9, 2015, certified the amendment is based on 
best scientific information available.
    The comment also states that Amendment 28 did not reference state 
landings information that suggests MRIP has overestimated the 
recreational harvest. NMFS assumes the commenter is referring to recent 
state surveys run by Louisiana and Alabama, which are still in varying 
stages of review by independent consultants that must be completed 
before meaningful conclusions regarding the quality of their estimates 
relative to MRIP can be drawn. Until then, the state landings 
information is not considered to be the best scientific information 
available for use in management.
    Comment 7: Amendment 28 violates the National Environmental Policy 
Act (NEPA). Amendment 28 does not meet the purpose and need of the 
amendment or explain why averages are used to calculate the percentage 
allocation. Amendment 28 also does not contain a reasonable range of 
alternatives because there are no alternatives allocating more fish to 
the commercial sector.
    Response: NMFS disagrees that Amendment 28 violates NEPA. The 
reallocation selected by the Council addresses the purpose and need of 
Amendment 28, which is to reallocate the red snapper harvest consistent 
with the 2014 update assessment to ensure the allowable catch and 
recovery benefits are fairly and equitably allocated, and to base 
sector allocations on the best scientific information available while 
achieving OY and rebuilding the red snapper stock. As described 
Amendment 28, the change in allocation is based on the proportion of 
the increase in the ABC that results from the recalibration of MRIP 
catch estimates to the recreational sector, which is the best 
scientific information available as described in the response to 
Comment 6 on National Standard 2. Allocating this quantifiable increase 
in the ABC to the recreational sector is a straightforward way to 
reconcile new information that shows past recreational

[[Page 25580]]

landings were underestimated. Future recreational harvest will be 
monitored based on an improved methodology that recognizes more 
reliable higher landings estimates. This shift in allocation is 
intended to help maintain a fair and equitable distribution of recovery 
benefits.
    The rationale for using an average in the change of allocation over 
the years 2015 to 2017 is explained in Section 2.1 of Amendment 28. 
``For 2015 to 2017, the amounts of quota attributable to the MRIP 
recalibration were derived from projections provided by the SEFSC 
(Appendix H). Percentages of the red snapper quota allocated to each 
sector on an annual basis would fluctuate based on the quota and on the 
amounts attributed to the recalibration. However, for this action, the 
Council elected to base the commercial and recreational allocations on 
the average percentages of the red snapper quota that would be 
allocated to each sector between 2015 and 2017.'' Thus, the Council 
used averages to account for fluctuations in the projections.
    Although the final version of Amendment 28 did not analyze 
alternatives that increase the commercial allocation, the Council did 
consider these alternatives in earlier drafts of the amendment. As 
explained in the response to comments on the draft EIS (final EIS 
Appendix D) for Amendment 28, when Amendment 28 was first developed as 
an options paper it included alternatives that would have shifted 
allocation from the recreational sector to the commercial sector. These 
alternatives were subsequently removed by the Council after review of 
an economic analysis conducted by the SEFSC that concluded that the red 
snapper allocation between sectors was not efficient and a marginal 
shift in allocation to the recreational sector would likely increase 
net benefits to the nation. In addition, the Council was concerned 
about the loss of fishing opportunities by the recreational sector. As 
described in the Notice of Intent, ``After considering the economic 
analyses conducted by NMFS, the loss of fishing opportunities by the 
recreational sector due to shorter fishing seasons, and public comments 
provided at Council meetings, the Council concluded that increasing the 
allocation of red snapper to the commercial sector would not meet the 
purpose and need of Amendment 28.'' (78 FR 66900, November 7, 2013).
    Based on the best scientific information available, the Council 
determined that it was appropriate to modify the purpose and need 
statement of the amendment to focus on reallocating the red snapper 
harvest consistent with the red snapper assessment update, to ensure 
the allowable catch and recovery benefits are fairly and equitably 
allocated between the commercial and recreational sectors. When the 
draft EIS was published for comment, it included this revised purpose 
and need statement and two new alternatives added by the Council to 
address the new information and the revised purpose and need. The draft 
EIS for Amendment 28 did not include alternatives that would increase 
the commercial sector's allocation because the new scientific 
information did not change any previous understanding of commercial 
landings. NMFS explained this in its response to comments on the draft 
EIS, and included in that discussion an analysis of the environmental 
consequences of increasing the commercial allocation, as noted in its 
Record of Decision.
    Comment 8: Amendment 28 violates NEPA because there is insufficient 
analysis of effects; specifically, there was insufficient analysis of 
the projected decline in SPR for the eastern component of the stock, 
the impacts analysis ``assum[es] a stable or increasing quota'' when 
the quota will be decreasing through 2032, there are outdated passages 
that refer to gains in net economic benefits resulting from allocation, 
and the analysis does not address the provision in the Congressional 
Omnibus Appropriations Bill signed into law on December 18, 2015.
    Response: Amendment 28 contains a sufficient effects analysis. 
Amendment 28 contains a thorough analysis of the effects of the 
alternatives considered in the final EIS. With respect to the projected 
decline in SPR for the eastern component of the stock, as previously 
discussed in NMFS's responses to Comments 2 and 3, the Council manages 
red snapper Gulf-wide to meet a Gulf-wide rebuilding target and time 
frame. Further, the effects of the declining stock status in the 
eastern Gulf were considered in evaluating the stock in both SEDAR 31 
and the 2014 update assessment and were the basis of setting the 2015 
to 2017 ABCs by the SSC. The results of the next assessment will be 
provided to the Council to determine if further regulatory changes are 
warranted.
    The discussion of the social effects of Amendment 28 largely 
focused on impacts ``assuming a stable or increasing quota.'' However, 
the discussion also acknowledged that ``it is possible the quota may 
decrease in future years, for example, if recruitment declines,'' and 
describes how problems associated with the commercial sector's loss of 
access to red snapper from reallocation under Alternatives 2-7 in 
Amendment 28 would be compounded should the quota decline in response 
to a declining ABC.
    The references to gains in net economic benefits resulting from 
allocation are retained in Amendment 28 because they remain relevant 
for the assessment of allocation alternatives. They present the type of 
economic analysis that needs to be conducted when assessing the 
economic implications of allocation measures. The analysis that 
estimated marginal valuation (i.e., economic value of a fish) in the 
commercial and recreational sectors remains valid both in terms of 
approach and results. However, as explained in Amendment 28, the use of 
the equimarginal principle, which means comparing the marginal values 
of the commercial and recreational sectors to determine the level of 
allocation to each sector that result in the greatest net economic 
benefits, is no longer valid. This is because the recreational sector's 
open access system is not conducive to an efficient allocation within 
the sector, making it impossible to provide policy-relevant rankings of 
the reallocation alternatives in the amendment based on the expected 
net benefits to the nation.
    The impact of the provision in the Congressional Omnibus 
Appropriations Bill signed into law on December 18, 2015, that affects 
the management of the Reef Fish FMP for fiscal year 2016 was not 
addressed in Amendment 28 because the bill became law after the Council 
submitted the amendment to NMFS for review. Further, this legislation 
has no direct bearing on the allocation decision. Although this 
legislation may increase the uncertainty in the recreational season 
length projections, the recreational and component ACTs will help 
ensure that the recreational ACL is not exceeded and NMFS will consider 
this additional uncertainty when determining the appropriate closure 
date.
    Comment 9: Amendment 28 suffers from procedural defects and 
Amendment 28 should not be approved.
    Response: There are no procedural defects that would require 
disapproval of the FMP or final rule. The comment incorrectly 
identifies the date that the Council submitted the amendment to NMFS 
for preliminary review as the transmittal date referred to in Section 
304(a) of the Magnuson-Stevens Act. The transmittal date was December 
18, 2015, and the notice of availability for Amendment 28 published on 
December 24, 2015 (80 FR 80310). This is generally consistent with the

[[Page 25581]]

requirement in Section 304(a) that a notice of availability be 
published on or before the 5th day after the day the Council transmits 
a plan amendment to the Secretary. With respect to changes made to the 
document after the Council took final action, at its August 2015 
meeting, the Council expressly authorized staff to make any required 
editorial changes to the amendment. Any changes subsequently made to 
Amendment 28 were consistent with this authority.
    The comment also states that it was improper for the Council to 
take final action on Amendment 28 prior to the release of the final 
2014 update stock assessment report. Although the written report of the 
update assessment was not available until September 2015, which is 
after the Council took final action on Amendment 28 in August 2015, 
that report merely formalizes the information that was previously 
presented to the Council, the SSC, and the public. That draft 
assessment report was also used by the Council to increase the red 
snapper sector quotas in the spring of 2015. The public had an 
opportunity to comment on the assessment results both during the 
Council webinar and during the comment period on the proposed rule to 
implement the quota increase that was published in April 2015 (80 FR 
17380, April 1, 2015). The amount of increase in the total allowable 
harvest attributable to the MRIP recalibration was derived from 
projections provided by the SEFSC in March 2015 and that analysis is 
included in Appendix H to Amendment 28.
    The comment states that the Fishery Impact Statement (FIS) for 
Amendment 28 is incomplete because it does not contain a discussion of 
the action's impact on SPR and stock abundance in the eastern Gulf. 
However, the FIS incorporates, by reference, the more detailed 
discussion of the expected effects provided in Chapter 4 of Amendment 
28, and Section 4.1.2 of that Chapter addresses this issue.
    Comment 10: Amendment 28 is not intended to, nor does it fix any 
purported errors in landings history over the base years used to 
establish the 51 percent commercial and 49 percent recreational initial 
allocation.
    Response: Amendment 28 is not an attempt to fix the estimates used 
to establish the initial allocation and is not based on past red 
snapper harvest history. Amendment 28 and the reallocation in this 
final rule are based on new scientific information that indicates that 
recreational landings are greater than previously estimated. These 
revised historical recreational landings were then used in the 2014 
update assessment and had a quantifiable impact on the results of that 
assessment. Allocating this quantifiable increase in the ABC to the 
recreational sector is a straightforward way to reconcile new 
information that shows that past recreational landings were 
underestimated.
    Comment 11: The recreational sector should have received a greater 
increase in allocation than the preferred alternative selected by the 
Council.
    Response: The Council evaluated several different alternatives that 
would increase the recreational sector's red snapper allocation during 
the development of Amendment 28. These alternatives included 
straightforward percentage changes, changes based on the red snapper 
stock ACL, and changes based on the new recreational catch information 
used in the 2014 update assessment. As explained in the responses to 
Comments 2 and 7, the Council determined, and NMFS agrees, that the 
allocation selected both meets the purpose and need of Amendment 28, 
and is fair and equitable because it addresses changes in the 
methodology in collecting recreational landings information that 
indicate recreational harvests have been underestimated.

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 Amendment 28, 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.
    In compliance with section 604 of the RFA, NMFS prepared a Final 
Regulatory Flexibility Analysis (FRFA) for this final rule. 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, and a summary of the analyses 
completed to support the action. The FRFA follows.
    The preamble to the final rule provides the statement of the need 
for and objectives of this final rule. The Magnuson-Stevens Act 
provides the statutory basis for this final rule.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified. Moreover, this final rule is not expected to change current 
reporting, record-keeping, and other compliance requirements on 
directly affected small entities.
    No comments specific to the IRFA were received from the public or 
from Chief Counsel for the Advocacy of the Small Business 
Administration and, therefore, no public comments are addressed in this 
FRFA. Certain comments with socio-economic implications are addressed 
in the comments and responses section in the responses to comments 2, 
4, 5, and 7. No changes to the proposed rule were made in response to 
such comments.
    NMFS agrees that the Council's choice of preferred alternative will 
best achieve the Council's objectives for Amendment 28 while 
minimizing, to the extent practicable, the adverse effects on fishers, 
support industries, and associated communities.
    NMFS expects this final rule to directly affect federally permitted 
commercial reef fish fishermen that harvest red snapper in the Gulf. 
Changes to the recreational red snapper ACL/ACT due to the reallocation 
will not directly apply to or regulate charter vessel and headboat 
(for-hire) businesses. Any impact to the profitability or 
competitiveness of for-hire fishing businesses will be the result of 
changes in for-hire angler demand and will therefore be indirect in 
nature. Although anglers will be directly affected by this final rule, 
the RFA does not consider them as small entities. NMFS has not 
identified any other small entities that will be directly affected by 
this rule.
    Commercial harvest of red snapper in the Gulf is currently managed 
under an IFQ program. From 2010 through 2014, an annual average of 375 
vessels landed at least 1 lb (0.45 kg) of red snapper. Each vessel 
generated annual average dockside revenues of approximately $102,000 
(2014 dollars), of which $36,000 were from red snapper, $38,000 from 
other species jointly landed with red snapper, and $28,000 from other 
species on trips without red snapper. Vessels that caught and landed 
red snapper may also operate in other fisheries, the revenues of which 
are not known and are not reflected in these totals.
    The Small Business Administration has established size criteria for 
all major industry sectors in the U.S., including fish harvesters. A 
business involved in fish harvesting 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 $20.5 million (North American Industry 
Classification System, NAICS code 114111, finfish fishing) for all its 
affiliated operations worldwide.

[[Page 25582]]

    Based on revenue information, all 375 commercial vessels directly 
affected by this final rule may be assumed to be small entities. Thus, 
the final rule will affect a substantial number of small entities. 
Because all entities expected to be directly affected by the final rule 
are determined for the purpose of this analysis to be small business 
entities, the issue of disproportional effects on large and small 
entities does not arise in the present case.
    The final rule will change the commercial and recreational sector 
allocation of the red snapper quota from 51 percent for the commercial 
sector and 49 percent for the recreational sector to 48.5 percent and 
51.5 percent for the commercial and recreational sectors, respectively. 
The total ACL will be 13.960 million lb (6.33 million kg) for 2016 and 
13.740 million lb (6.23 million kg) for 2017. Under the current 
allocation, the commercial sector's ACL would be 7.120 million lb (3.22 
million kg) for 2016 and 7.007 million lb (3.17 million kg) for 2017. 
Relative to these commercial ACLs, the reallocation will reduce the 
commercial sector allocation by 0.352 million lb (0.160 million kg) in 
2016 and 0.343 million lb (0.156 million kg) in 2017, or a total of 
0.695 million lb (0.315 million kg) over 2 years. Based on 2013 median 
ex-vessel price per pound for red snapper of $4.83 when adjusted to 
2014 prices ($4.75 at 2013 dollars), these commercial quota reductions 
will be expected to reduce total gross revenue (ex-vessel revenue, 
minus the IFQ program's 3 percent cost recovery fee) of vessels that 
commercially harvest red snapper by approximately $1.48 million (2014 
dollars) in 2016 and $1.45 million in 2017 for all vessels. Over 2 
years, total revenue reductions will be $2.93 million, or an average of 
$1.46 million per year for all vessels. This average revenue reduction 
may be considered to approximate the annual revenue reduction of 
directly affected commercial vessels over a number of years for which 
the red snapper commercial quota is held at about the same levels as in 
2016 and 2017. Based on the 2010-2014 average of 375 vessels that 
commercially harvested red snapper, the revenue reduction per vessel 
will be approximately $3,893 annually. This amount is approximately 4 
percent of total per vessel revenues from all species.
    The following discussion describes the eight alternatives that were 
not selected as preferred in Amendment 28 by the Council.
    The first alternative, the no action alternative, would maintain 
the current commercial and recreational allocation of the red snapper 
ACL. This alternative would maintain relatively the same economic 
benefits to commercial vessels but at levels higher than those afforded 
by the preferred alternative. The second alternative would increase the 
recreational sector's allocation by 3 percent, resulting in a 48 
percent commercial and 52 percent recreational sector allocation. The 
third alternative would increase the recreational sector's allocation 
by 5 percent, resulting in a 46 percent commercial and 54 percent 
recreational sector allocation. The fourth alternative would increase 
the recreational sector's allocation by 10 percent, resulting in a 41 
percent commercial and 59 percent recreational sector allocation. The 
fifth alternative would allocate to the recreational sector 75 percent 
of the red snapper ACL increases beyond 9.12 million lb (4.14 million 
kg), resulting in a 42 percent commercial and 58 percent recreational 
sector allocation in 2016 and 42.3 percent commercial and 57.7 percent 
recreational sector allocation in 2017. The sixth alternative would 
allocate to the recreational sector all red snapper ACL increases 
beyond a stock ACL of 9.12 million lb (4.14 million kg), resulting in a 
33.3 percent commercial and 66.7 percent recreational sector allocation 
in 2016 and 33.9 percent commercial and 66.1 percent recreational 
sector allocation in 2017. The seventh alternative would allocate to 
the recreational sector 75 percent of any red snapper ACL increases 
beyond a stock ACL 10.0 million lb (4.54 million kg), resulting in a 
43.6 percent commercial and 56.4 percent recreational sector allocation 
in 2016 and 43.9 percent commercial and 56.1 percent recreational 
sector allocation in 2017. The eighth alternative (Alternative 9 in 
Action 1) would allocate increases in the red snapper ACL due to the 
recalibration of MRIP catch estimates and to the change in size 
selectivity to the recreational sector, resulting in a 42.5 percent 
commercial and 57.5 percent recreational sector allocation in 2016 and 
2017. All these other alternatives, except the no action alternative, 
would result in larger quota (ACL) and revenue reductions for the 
commercial vessels that harvest red snapper. The no action alternative 
was not selected because it would not meet the purpose and need of the 
amendment.
    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

    Allocation, Commercial, Fisheries, Fishing, Gulf, Recreational, Red 
snapper.

    Dated: April 21, 2016.
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.  622.39, revise paragraphs (a)(1)(i) and (a)(2)(i) to read 
as follows:


Sec.  622.39  Quotas.

* * * * *
    (a) * * *
    (1) * * *
    (i) Commercial quota for red snapper. (A) For fishing year 2015--
7.293 million lb (3.308 million kg), round weight.
    (B) For fishing year 2016--6.768 million lb (3.070 million kg), 
round weight.
    (C) For fishing year 2017 and subsequent fishing years--6.664 
million lb (3.023 million kg), round weight.
* * * * *
    (2) * * *
    (i) Recreational quota for red snapper--(A) Total recreational 
quota (Federal charter vessel/headboat and private angling component 
quotas combined)--(1) For fishing year 2015--7.007 million lb (3.178 
million kg), round weight.
    (2) For fishing year 2016--7.192 million lb (3.262 million kg), 
round weight.
    (3) For fishing year 2017 and subsequent fishing years--7.076 
million lb (3.210 million kg), round weight.
    (B) Federal charter vessel/headboat component quota. The Federal 
charter vessel/headboat component quota applies to vessels that have 
been issued a valid Federal charter vessel/headboat permit for Gulf 
reef fish any time during the fishing year. This component quota

[[Page 25583]]

is effective for only the 2015, 2016, and 2017 fishing years. For the 
2018 and subsequent fishing years, the applicable total recreational 
quota specified in Sec.  622.39(a)(2)(i)(A) will apply to the 
recreational sector.
    (1) For fishing year 2015--2.964 million lb (1.344 million kg), 
round weight.
    (2) For fishing year 2016--3.042 million lb (1.380 million kg), 
round weight.
    (3) For fishing year 2017--2.993 million lb (1.358 million kg), 
round weight.
    (C) Private angling component quota. The private angling component 
quota applies to vessels that fish under the bag limit and have not 
been issued a Federal charter vessel/headboat permit for Gulf reef fish 
any time during the fishing year. This component quota is effective for 
only the 2015, 2016, and 2017 fishing years. For the 2018 and 
subsequent fishing years, the applicable total recreational quota 
specified in Sec.  622.39(a)(2)(i)(A) will apply to the recreational 
sector.
    (1) For fishing year 2015--4.043 million lb (1.834 million kg), 
round weight.
    (2) For fishing year 2016--4.150 million lb (1.882 million kg), 
round weight.
    (3) For fishing year 2017--4.083 million lb (1.852 million kg), 
round weight.
* * * * *

0
3. In Sec.  622.41, revise (q)(2)(iii) to read as follows:


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

* * * * *
    (q) * * *
    (2) * * *
    (iii) Recreational ACT for red snapper--(A) Total recreational ACT 
(Federal charter vessel/headboat and private angling component ACTs 
combined)--(1) For fishing year 2015--5.606 million lb (2.543 million 
kg), round weight.
    (2) For fishing year 2016--5.754 million lb (2.610 million kg), 
round weight.
    (3) For fishing year 2017 and subsequent fishing years--5.661 
million lb (2.568 million kg), round weight.
    (B) Federal charter vessel/headboat component ACT. The Federal 
charter vessel/headboat component ACT applies to vessels that have been 
issued a valid Federal charter vessel/headboat permit for Gulf reef 
fish any time during the fishing year. This component ACT is effective 
for only the 2015, 2016, and 2017 fishing years. For the 2018 and 
subsequent fishing years, the applicable total recreational quota 
specified in Sec.  622.39(a)(2)(i)(A) will apply to the recreational 
sector.
    (1) For fishing year 2015--2.371 million lb (1.075 million kg), 
round weight.
    (2) For fishing year 2016--2.434 million lb (1.104 million kg), 
round weight.
    (3) For fishing year 2017--2.395 million lb (1.086 million kg), 
round weight.
    (C) Private angling component ACT. The private angling component 
ACT applies to vessels that fish under the bag limit and have not been 
issued a Federal charter vessel/headboat permit for Gulf reef fish any 
time during the fishing year. This component ACT is effective for only 
the 2015, 2016, and 2017 fishing years. For the 2018 and subsequent 
fishing years, the applicable total recreational quota specified in 
Sec.  622.39(a)(2)(i)(A) will apply to the recreational sector.
    (1) For fishing year 2015--3.234 million lb (1.467 million kg), 
round weight.
    (2) For fishing year 2016--3.320 million lb (1.506 million kg), 
round weight.
    (3) For fishing year 2017--3.266 million lb (1.481 million kg), 
round weight.

[FR Doc. 2016-09892 Filed 4-27-16; 8:45 am]
BILLING CODE 3510-22-P