[Federal Register Volume 81, Number 232 (Friday, December 2, 2016)]
[Rules and Regulations]
[Pages 86971-86973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28905]



[[Page 86971]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 160630573-6999-02]
RIN 0648-BG19


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 issues regulations to implement management measures 
described in Amendment 45 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 45). This final 
rule extends the 3-year sunset provision for the Gulf of Mexico (Gulf) 
red snapper recreational sector separation measures for an additional 5 
years. Additionally, this rule corrects an error in the Gulf red 
snapper recreational accountability measures (AMs). The purpose of this 
final rule is to extend the sector separation measures to allow the 
Council more time to consider and possibly develop alternative 
management strategies within the Gulf red snapper recreational sector.

DATES: This final rule is effective January 3, 2016.

ADDRESSES: Electronic copies of Amendment 45, which includes an 
environmental assessment, 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.

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, which includes red snapper, 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 August 25, 2016, NMFS published a notice of availability for 
Amendment 45 and requested public comment (81 FR 58466). On September 
8, 2016, NMFS published a proposed rule for Amendment 45 and requested 
public comment (81 FR 62069). The proposed rule and Amendment 45 
outline the rationale for the action contained in this final rule. A 
summary of the management measures described in Amendment 45 and 
implemented by this final rule is provided below.

Management Measure Contained in This Proposed Rule

    Amendment 45 extends the 3-year sunset provision implemented 
through the final rule for Amendment 40 to the FMP (80 FR 22422, April 
22, 2015) for an additional 5 years. Amendment 40 established distinct 
private angling and Federal for-hire (charter vessel and headboat) 
components of the Gulf reef fish recreational sector fishing for red 
snapper, and allocated red snapper resources between these recreational 
components. The purpose of establishing these separate recreational 
components was to provide a basis for increasing the stability for the 
for-hire component and the flexibility in future management of the 
recreational sector, and to reduce the likelihood of recreational red 
snapper quota overruns, which could jeopardize the rebuilding of the 
red snapper stock (the Gulf red snapper stock is currently overfished 
and is under a rebuilding plan). As a result of the stock status, the 
actions in Amendment 40 were also intended to prevent overfishing while 
achieving optimum yield, particularly with respect to recreational 
fishing opportunities, and while rebuilding the red snapper stock.
    Amendment 40 defined the Federal for-hire component as including 
operators of vessels with Federal charter vessel/headboat permits for 
Gulf reef fish and their angler clients. The private angling component 
was defined as including anglers fishing from private vessels and 
state-permitted for-hire vessels. Amendment 40 also established 
accountability measures for the Gulf red snapper recreational 
components. In addition, Amendment 40 applied a 3-year sunset provision 
for the regulations implemented through its final rule. The sunset 
provision maintained the measures for sector separation through the end 
of the 2017 fishing year, ending on December 31, 2017.
    This final rule extends Gulf recreational red snapper sector 
separation through the end of the 2022 fishing year, ending on December 
31, 2022, rather than the current sunset date of December 31, 2017. 
Beginning on January 1, 2023, the red snapper recreational sector will 
be managed as a single entity without the separate Federal for-hire and 
private angling components. The Council would need to take further 
action for these recreational components and management measures to 
extend beyond the 5-year extension in Amendment 45.
    Additionally, as a result of extending the sunset provision for 
sector separation, this final rule extends the respective red snapper 
recreational component quotas and ACTs through the 2022 fishing year, 
instead of through the 2017 fishing year as implemented through 
Amendment 40.

Comments and Responses

    A total of 115 comments were received on the notice of availability 
and proposed rule for Amendment 45. Most of the comments (91 comments), 
including one from a recreational fishing organization, were not in 
favor of extending the sunset provision from Amendment 40. The primary 
reason given was an opposition to sector separation implemented through 
Amendment 40, including: The concern that sector separation was unfair 
to private anglers, particularly with respect to fishing season length 
in Federal waters; the position that all recreational fishermen, 
regardless of whether they use a private vessel or a for-hire vessel to 
harvest red snapper, should be managed under the same regulations; and 
opposition to any part of the recreational quota being privatized. 
These comments are duplicative of those provided on Amendment 40 and 
were addressed in the final rule implementing Amendment 40 (80 FR 
22422, April 22, 2015). Those responses to comments are incorporated 
here by reference.
    Other comments in opposition to Amendment 45 and the proposed rule 
expressed a preference for recreational red snapper fishing to be 
managed by the Gulf states or managed through the use of fish tags, or 
expressed opposition to the Federal for-hire component being managed 
under a catch share program in the future. These comments are outside 
the scope of Amendment 45. Amendment 45 only addresses extending 
Amendment 40's sunset provision, not the strategies or measures under 
which the separate components of the recreational sector may be 
managed.
    Fifteen comments were received in favor of extending the sunset 
provision. Rationale in support included: That extending the sunset 
provides more time to develop Federal for-hire red snapper management 
measures, and that sector separation is providing a longer

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Federal season for operators of federally permitted for-hire reef fish 
vessels. Eight comments did not indicate whether they were for or 
against extending the sunset provision and one comment from a Federal 
agency indicated they had no comments on Amendment 45 or the proposed 
rule.
    Comment 1: The Council, when approving Amendment 40, established a 
3-year sunset provision to ensure that the Council would evaluate the 
merits of sector separation within a specific time period. Extending 
sector separation now, before the Council has evaluated sector 
separation, violates the Council's intent to consider the merits of 
sector separation over the 3-year evaluation period.
    Response: NMFS disagrees. As stated in the final rule for Amendment 
40 (80 FR 22422, April 22, 2015), the purpose of separating the 
recreational sector into components was to provide a basis for 
increased flexibility in future management of the recreational sector 
and reduce the likelihood of recreational quota overruns, which could 
negatively impact the rebuilding of the red snapper stock. As described 
in Amendment 40, the Council established the 3-year sunset provision to 
encourage timely action to implement and evaluate alternative 
management structures. If such structures were under development, the 
Council also would have the opportunity to determine whether to to 
extend sector separation to continue to develop those structures or 
instead to let sector separation end under the sunset provision.
    The Council is working toward developing altnerative management 
structures and will continue to evaluate sector separation as these 
structures develop. In view of its work on those structures, chose to 
extend the sunset provision to continue that work. Amendment 40 
represented the first step toward developing alternative structures to 
manage the recreational sector. Since Amendment 40 was implemented, the 
Council has established three ad hoc advisory panels (APs) to help it 
develop management alternatives for recreational red snapper management 
in the Gulf. The Ad Hoc Red Snapper Charter For-hire AP and the Ad Hoc 
Reef Fish Headboat AP have convened on several occasions and are 
assisting the Council in developing management actions for their 
respective fishing modes. The Council also recently established the Ad 
Hoc Red Snapper Private Angler AP, which it charged with providing 
recommendations on private recreational red snapper management measures 
that would provide more quality access to the red snapper resource in 
Federal waters, reduce discards, and improve fisheries data collection. 
This AP has yet to meet.
    Although the Council is making progress in its efforts to develop 
alternative red snapper recreational management measures, it is 
unlikely that the Council, with help from its APs, will approve any 
management measures prior to January 1, 2018, when Amendment 40 expires 
under the current sunset provision. Therefore, the Council decided to 
take action through Amendment 45 to extend the sunset provision for an 
additional 5-year period to give it additional time to develop the 
future red snapper management measures contemplated under Amendment 40. 
Extending the sunset provision in this final rule is consistent with 
the intent behind including the sunset provision in Amendment 40 as it 
provides the Council with additional time to develop alternative 
management structures and to continue to consider the merits of sector 
separation over an additional 5 years. Because of the time it would 
take to develop and implement an amendment to extend the sunset time 
period, rather than waiting any longer into the sunset period, the 
Council chose to act now to extend sector separation for an additional 
5 years, and its action is consistent with the intent in including the 
sunset provision in Amendment 40.
    Comment 2: Sector separation should not be extended for an 
additional 5 years because sector separation disproportionately harms 
private anglers by reducing the length of their Federal season; 
unreasonably creates a different set of rules for each recreational 
component fishing under the same recreational quota; is not based on 
the best scientific information available; creates derby-like 
conditions for the private angler component; allows the privatization 
of a portion of the recreational quota; and it is premature to extend 
sector separation before the litigation concerning sector separation is 
resolved.
    Response: NMFS disagrees. The Council approved Amendment 40 and 
submitted the amendment to NMFS for review and Secretarial approval. 
During this process, NMFS received many comments in opposition to 
sector separation citing the same substantive reasons as those received 
on Amendment 45 and proposed rule. Responses to these comments are 
contained in the final rule for Amendment 40 (80 FR 22422, April 22, 
2015) and are incorporated here by reference. In those responses, NMFS 
explained why it believed sector separation was appropriate. The 
Council chose to extend sector separation despite the concerns with 
sector separation itself and NMFS is approving that decision for the 
same reasons we approved Amendment 40.
    With respect to the comment that it is premature to extend sector 
separation until the litigation concerning sector separation is 
resolved, NMFS disagrees. The final rule implementing Amendment 40 was 
challenged in both the United States District Court for the Eastern 
District of Louisiana, Coastal Conservation Ass'n v. United States 
Department of Commerce, No. 2:15-cv-01300, and in the United States 
District Court for the Middle District of Florida, The Fishing Rights 
Alliance, Inc. v. Pritzker, No. 8:15-cv-01254. On January 5, 2016, the 
United States District Court for the Eastern District of Louisiana 
ruled in favor of NMFS, dismissing the matter with prejudice. That 
decision is on appeal to the United States Court of Appeals for the 
Fifth Circuit and oral argument was held on November 1, 2016, Coastal 
Conservation Ass'n v. United States Department of Commerce, No. 16-
30137. The other action is still pending. NMFS does not need to await 
the outcome of these legal challenges before approving the Council's 
decision to extend sector separation for an additional 5 years under 
Amendment 45. Amendment 40 continues to be valid and enforceable until 
a court rules to the contrary. Depending on the outcome of those 
challenges, the Council may revisit sector separation, as appropriate.

Additional Changes to Codified Text

    On May 1, 2015, NMFS published the final rule for a framework 
action to revise the Gulf red snapper commercial and recreational 
quotas and ACTs, including the recreational component ACTs, and to 
announce the closure dates for the recreational sector components for 
the 2015 fishing year (80 FR 24832). However, during the implementation 
of the framework action, the term and regulatory reference for total 
recreational quota was inadvertently used instead of total recreational 
ACT when referring to the applicability of the recreational component 
ACTs after sector separation ends in Sec.  622.41(q)(2)(iii)(B) and 
(C). This rule corrects this error by revising the text and regulatory 
references within the component ACTs in Sec.  622.41(q)(2)(iii)(B) and 
(C) to reference the total recreational sector ACT instead of the total 
recreational quota.

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Classification

    The Regional Administrator, Southeast Region, NMFS has determined 
that this final rule is consistent with Amendment 45, 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.
    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.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this rule would not 
have a significant economic impact on a substantial number of small 
entities. The factual basis for this determination was published in the 
proposed rule and is not repeated here. No significant issues were 
received regarding the certification by public comments on the proposed 
rule, no changes were made to the rule in response to such comments, 
and NMFS has not received any new information that would affect its 
determination. As a result, a final regulatory flexibility analysis is 
not required and none was prepared.

List of Subjects in 50 CFR Part 622

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

    Dated: November 28, 2016.
Samuel D. Rauch III,
Deputy Assustant 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)(2)(i)(B) and (C) to read as 
follows:


Sec.  622.39  Quotas.

* * * * *
    (a) * * *
    (2) * * *
    (i) * * *
    (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 is 
effective for only the 2015 through 2022 fishing years. For the 2023 
and subsequent fishing years, the applicable total recreational quota, 
specified in paragraph (a)(2)(i)(A) of this section, 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 years 2017 through 2022--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 through 2022 fishing years. For the 2023 and subsequent 
fishing years, the applicable total recreational quota, specified in 
paragraph (a)(2)(i)(A) of this section, 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 years 2017 through 2022--4.083 million lb (1.852 
million kg), round weight.
* * * * *

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


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

* * * * *
    (q) * * *
    (2) * * *
    (iii) * * *
    (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 through 2022 fishing years. For the 2023 and 
subsequent fishing years, the applicable total recreational ACT, 
specified in paragraph (q)(2)(iii)(A) of this section, 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 years 2017 through 2022--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 through 2022 fishing years. For the 2023 and subsequent 
fishing years, the applicable total recreational ACT, specified in 
paragraph (q)(2)(iii)(A) of this section, 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 years 2017 through 2022--3.266 million lb (1.481 
million kg), round weight.

[FR Doc. 2016-28905 Filed 12-1-16; 8:45 am]
 BILLING CODE 3510-22-P