Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 40, 22422-22430 [2015-09353]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 80, Number 77 (Wednesday, April 22, 2015)]
[Rules and Regulations]
[Pages 22422-22430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09353]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 140818679-5356-02]
RIN 0648-BE47


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Amendment 40

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 Amendment 40 
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 contains measures to establish two 
components within the recreational sector for Gulf of Mexico (Gulf) red 
snapper (a Federal charter vessel/headboat (for-hire) component and 
private angling component) with a 3-year sunset provision; allocate the 
red snapper recreational quota and annual catch target (ACT) between 
the components; and establish separate red snapper season closure 
provisions for the two components. The purpose of Amendment 40 and this 
rule is 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.

DATES: This rule is effective May 22, 2015.

ADDRESSES: Electronic copies of Amendment 40, which includes an 
environmental impact statement, a fishery impact statement, a 
Regulatory Flexibility Act analysis, and a regulatory impact review, 
may be obtained from

[[Page 22423]]

the Southeast Regional Office Web site at https://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/reef_fish/2013/am40/.

FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone: 727-824-5305; 
email: Peter.Hood@noaa.gov.

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 Act.
    On January 16, 2015, NMFS published a notice of availability for 
Amendment 40 and requested public comment (80 FR 2379). On January 23, 
2015, NMFS published a proposed rule for Amendment 40 and requested 
public comment (80 FR 3541). NMFS approved Amendment 40 on April 10, 
2015. The proposed rule and Amendment 40 outline the rationale for the 
actions contained in this final rule. A summary of the actions 
implemented by Amendment 40 and this final rule is provided below.

Management Measures Contained in This Final Rule

    This final rule establishes two components in the Gulf red snapper 
recreational sector: A Federal for-hire component and a private angling 
component. In addition, this rule establishes a Federal for-hire quota 
and a private angling quota based on the component allocation of the 
recreational quota, component ACTs, and seasonal closure provisions for 
the two components. These management measures will be in effect for 3 
years, unless changed by subsequent Council action.

Establishing Private Angling and Federal For-Hire Components

    This final rule establishes a Federal for-hire component and a 
private angling component for the Gulf red snapper recreational sector. 
The Federal for-hire component includes operators of vessels with 
Federal charter vessel/headboat permits for Gulf reef fish and the 
private angling component includes anglers fishing from private vessels 
and state-permitted for-hire vessels.

Component Quotas

    This final rule establishes component quotas based on the 
allocation of 42.3 percent for the Federal for-hire component and 57.7 
percent for the private angling component, as selected in Amendment 40. 
All weights given in this rule are in round weight. Currently, the 2015 
recreational quota is set at 5.390 million lb (2.445 million kg). 
Therefore, this final rule sets the Federal for-hire component quota at 
2,279,970 lb (1,034,177 kg), and the private angling component quota at 
3,110,030 lb (1,410,686 kg), for the 2015 fishing year.
    However, the Council has developed a framework action to revise the 
commercial and recreational quotas for the 2015, 2016, and 2017 fishing 
years and subsequent fishing years for red snapper based on new 
acceptable biological catches (ABCs) recommended by the Council's 
Scientific and Statistical Committee (SSC) and on the current 
commercial and recreational allocations (51-percent commercial and 49-
percent recreational). A proposed rule for the framework action was 
published on April 1, 2015 (80 FR 17380). If the framework action is 
approved, a final rule containing revised component quotas would be 
published and effective prior to the June 1, 2015, start date of the 
Federal fishing season.

Recreational Season Closure Provisions

    This final rule establishes separate red snapper seasonal closure 
provisions for the Federal for-hire and private angling components 
based on each component's ACT. Each component's season will begin on 
June 1 and the season length will be projected from each component's 
ACT. The ACTs are reduced from each component's quota by 20 percent.
    Given the current component quotas, the Federal charter vessel/
headboat component ACT will be 1.824 million lb (0.827 million kg), and 
the private angling ACT will be 2.488 million lb (1.129 million kg). 
However, if the final rule for the 2015 Gulf red snapper framework 
action is implemented the component ACTs for the 2015, 2016, and 2017 
and subsequent fishing years will be revised.
    The 2015 season lengths will be announced prior to the June 1 
Federal fishing season start date; most likely in the final rule for 
the 2015 Gulf red snapper framework action.

Sunset Provision

    This rule implements a 3-year sunset provision for the 
establishment of the Federal for-hire and private angling components 
and associated management measures. The components and associated 
management measures will be effective through the end of the 2017 
fishing year, on December 31, 2017. For these components and management 
measures to extend beyond 3 years, the Council would need to take 
further action.

ACLs and AMs

    Prior to Amendment 40, rather than establishing ACLs for red 
snapper management, the Council chose to refer to the sector quotas as 
the functional equivalent to sector ACLs, and the sum of all quotas as 
the stock ACLs. This led to confusion when discussing and implementing 
red snapper catch levels. In the preamble to the proposed rule for 
Amendment 40, NMFS failed to explain that this rule would add sector 
ACLs and an AM for the commercial sector to the regulations. However, 
the proposed rule's regulatory text, and the discussion in Amendment 
40, did include sector ACLs. Consistent with what was proposed, this 
final rule adds commercial and recreational ACLs, which are equivalent 
to the commercial and recreational quotas, respectively, and adds 
language explaining that the commercial AM is defined as the IFQ 
program for red snapper.

Changes From the Proposed Rule

    A recent framework action (80 FR 14328) implemented a post-season 
AM for the recreational sector as a whole. This AM requires that NMFS 
adjust the subsequent year's total recreational quota and ACT if the 
quota is exceeded in the prior fishing year and red snapper are 
classified as overfished. The proposed rule for Amendment 40 included 
the provision for adjusting the total recreational quota and the 
component ACTs, but not the provision for adjusting the component 
quotas. If an overage of the total recreational ACL (equal to the total 
recreational quota) occurs, the component quotas must be adjusted to 
reflect the adjustment to the total quota, otherwise the combined 
component quotas would exceed the total quota. The adjusted component 
quotas are also necessary to calculate the reduced component ACTs. NMFS 
has determined the provision for adjusting component quotas was 
reasonably foreseeable from what was included in the proposed rule, and 
is a logical outgrowth of the proposed rule because it is necessary to 
implement the AM as proposed. Therefore, this final rule adds the 
necessary language for reducing the component quotas to Sec.  
622.41(q)(2)(ii).

Comments and Responses

    A total of 18,353 comments were received on Amendment 40 and the 
proposed rule, including comments from individuals, 2 state agencies, 4 
non-governmental organizations (NGOs), 6 fishing associations, 1 U.S. 
Congressman, and 1 U.S. Senator. NMFS received 3,212 comments in

[[Page 22424]]

opposition to Amendment 40 or the proposed rule, of which 1,806 
comments were letters attached to a submission from a recreational 
fishing organization. There were 15,089 comments in support of 
Amendment 40 and the proposed rule, of which 15,025 comments were 
copies of emails submitted by members of an NGO, which submitted them 
to NMFS. There were 52 commenters who did not indicate whether they 
supported or were in opposition to the amendment. In addition to these 
comments, a minority report was submitted by the 7 members of the 
Council who voted against approval of Amendment 40.
    Comments opposing the action include: There is a lack of 
significant support for the action; the action disproportionately harms 
private anglers by reducing their Federal season; the action privatizes 
the resource; all anglers should be treated alike; the Council lacked 
certain information before making its decision; the action does little 
to improve recreational management; and the action violates National 
Standards 2, 4, 5, 8, and 10. In addition, commenters suggested several 
Council members had a conflict of interest and should not have voted 
for approval of Amendment 40.
    Comments in support of the action include that the action will: 
Give better access to red snapper fishing by non-boat-owning anglers; 
provide management flexibility; increase recreational accountability; 
and help to stabilize the for-hire component. NMFS also received 
comments that addressed issues outside the scope of this action. 
Comments in this category include: Asking for different red snapper 
size and bag limits, weekend-only red snapper seasons, and a tagging 
system to allocate fish; halting the removal of oil rigs; and opposing 
creation of a catch share-like program for the for-hire component. 
Although these measures could be developed for one or both components 
as a result of Amendment 40, Amendment 40 does not specifically address 
these topics. 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 40 disproportionately harms private anglers by 
reducing the length of their Federal season.
    Response: NMFS disagrees that Amendment 40 disproportionately harms 
private anglers. NMFS recognizes that the Federal season for private 
anglers is likely to be shorter than the Federal fishing season for the 
federally permitted for-hire vessels. However, this is a result of the 
unlimited number of private recreational vessels and state-permitted 
for-hire vessels, increasing fish size, and the decisions by the Gulf 
states to extend their red snapper fishing seasons in state waters 
beyond the Federal fishing season. As explained in Amendment 40, the 
number of private recreational vessels has increased over time and the 
moratorium on Federal for-hire permits has limited growth in the for-
hire industry and, in turn, anglers' access to these vessels. In 
addition, last year, all the Gulf states extended their red snapper 
fishing seasons beyond the Federal fishing season, and some states 
extended their fishing seasons in previous years. Private anglers and 
state-permitted vessel operators are able to harvest red snapper 
outside of the Federal season as long as the fish are caught in state 
waters during the extended state fishing seasons. On the other hand, 
fishermen fishing from federally permitted reef fish for-hire vessels 
are prohibited from harvesting red snapper caught in state waters when 
the Federal fishing season is closed, but state waters are open. 
Therefore, fishermen fishing from private and state-permitted vessels 
have seen increased fishing opportunities in recent years, whereas, 
fishermen fishing from federally-permitted for-hire vessels have seen 
their Federal fishing season reduced under current conditions. While 
the Federal for-hire component fishing season will be longer than the 
Federal private angling component fishing season, the private angling 
component is expected to have additional fishing opportunities in state 
waters.
    Comment 2: Amendment 40 complicates management by creating a 
different set of rules for each component that must fish under the same 
recreational quota. All recreational anglers, whether they are fishing 
from their own boat or from a federally permitted for-hire vessel, 
should be treated alike and have the same size limit, bag limit, and 
season.
    Response: The overall management program may be slightly more 
complex as modified by Amendment 40, however NMFS disagrees that 
Amendment 40 complicates management. For both recreational components, 
the Federal bag and size limits and the start date of the Federal 
fishing season (June 1) are the same. The only difference is that the 
end date of the fishing season for the respective components will be 
different. The projections of the season length provided in Amendment 
40 show the Federal for-hire component to have a longer fishing season 
than the private angling component, in part, due to red snapper 
harvested in state waters during extended state fishing seasons. 
Differences in catch rates, size of fish, and total effort also 
contribute to season-length differences.
    The Council may determine that other component-specific management 
measures are needed to improve the management of the recreational 
sector fishing for red snapper. Any new management measures would be 
developed through a framework action or plan amendment and would 
require public participation.
    Comment 3: Amendment 40 does little or nothing to improve 
accountability and the collection of data. Although the amendment 
identifies factors that contribute to quota overruns, it does not 
identify how the proposed action will do anything to minimize quota 
overruns.
    Response: The purpose of Amendment 40 is not to improve data 
collection. However, Amendment 40 may facilitate greater certainty in 
data collected by establishing distinct private angling and Federal 
for-hire components of the red snapper recreational sector in the Gulf, 
which will provide a basis for flexible management approaches tailored 
to each component. NMFS disagrees that this amendment does little or 
nothing to improve accountability. The landings data for each component 
have different degrees of uncertainty because of differences in how 
recreational data are collected. Private angler data are derived from 
surveys whereas for-hire data are collected through surveys and 
logbooks. In addition, the number of for-hire vessels is known and is 
much smaller than vessels operated by private anglers. When private 
recreational landings estimates, that have a higher degree of 
uncertainty, are combined with for-hire landings data, projecting when 
the season should close is more difficult, and less effective 
management measures may result for the recreational sector. The 
analysis in Amendment 40 explains that because it is easier to both 
monitor and project landings for the for-hire component, it is easier 
to ensure that this component will not exceed its quota. Thus, 
separating management of the components is expected to improve the 
projections of when the recreational quota is reached and create a 
platform for future management of the recreational sector that can 
focus on maximizing opportunities for each component.
    Comment 4: Amendment 40 violates National Standard 2 because the 
Council did not have the best scientific information available when 
making its

[[Page 22425]]

decision. The final allocation percentages, which were dependent on 
recalibrated landings from a Marine Recreational Information Program 
(MRIP) workshop, were not available when the Council made its final 
decision. Thus, the Council did not have a clear idea of what the 
social and economic impacts would be from the final allocations set in 
Amendment 40. In addition, there was no attempt to quantify the 
economic consequences to the Federal for-hire component or the 
recreational sector as a whole.
    Response: NMFS disagrees that Amendment 40 is inconsistent with 
National Standard 2 and that the Council did not have a clear idea of 
the social and economic impacts that would result from the final 
allocations. National Standard 2 states that conservation and 
management measures shall be based on the best scientific information 
available. At the time the Council took final action on Amendment 40, 
the document contained a complete analysis of the social and economic 
impacts of establishing separate recreational components and the 
allocation alternatives. As discussed in Amendment 40 and the proposed 
rule, a quantitative economic analysis could not be conducted because 
the information required for such an analysis is not available. 
Instead, a qualitative analysis based on the best scientific 
information available was provided. This analysis acknowledged that the 
allocation would result in decreased harvest and associated economic 
benefits to anglers in the private component compared to recent years, 
and increased harvest and associated economic benefits for the Federal 
for-hire component. The analysis also indicated, however, that in the 
long term, total economic benefits would be expected to increase due to 
the enhanced quota monitoring capability and ability to better tailor 
management, through subsequent rulemaking, to the needs of each 
component.
    To ensure that the Council's allocation decision was based on the 
best scientific information available, the preliminary results of the 
MRIP workshop were presented to the Council at its October 2014 meeting 
and the Council was advised that the preferred allocation could change 
by as much as 3.3 percent. The methods used to calibrate 
the MRIP landings were reviewed earlier in October 2014 by the 
Council's SSC. The SSC did not note any concerns about the methodology. 
When the final results from the workshop were incorporated in Amendment 
40, 1.7 percent of the recreational quota was shifted from the Federal 
for-hire component to the private angling component. This change in 
allocation did not change the season length projections for the two 
components that were included in Amendment 40 at the time the Council 
took final action. In a memorandum dated January 7, 2015, the Southeast 
Fisheries Science Center certified that the actions in Amendment 40 are 
based on the best scientific information available.
    Comment 5: Amendment 40 violates National Standard 4 because sector 
separation will have disparate impacts on residents from different 
states, particularly given different states have differing proportions 
of for-hire and private angling fishers.
    Response: NMFS disagrees that Amendment 40 is inconsistent with 
National Standard 4. National Standard 4 states, in part, that 
conservation and management measures shall not discriminate between 
residents of different states and that if allocation is assigned, it is 
fair and equitable to all fishermen, and reasonably calculated to 
promote conservation.
    Amendment 40 may have different impacts on the residents of 
different states because of the proportion of fishers using federally 
permitted for-hire vessels and private vessels varies regionally. In 
addition, as explained in the proposed rule, because red snapper 
availability and abundance in state waters can vary regionally, fishing 
opportunities for individual fishermen in the private-angling component 
may vary if the Gulf States set state seasons inconsistent with one 
another. However, the actions in Amendment 40 do not differentiate 
between residents of different states. For the private-angling 
component, there will be a single Federal season in the exclusive 
economic zone (EEZ) off all Gulf states that will be determined using 
past landings data and will take into account any harvest allowed in 
state waters.
    The National Standard 4 Guidelines state that ``conservation and 
management measures that have different effects on persons in various 
geographic locations are permissible if they satisfy the other 
guidelines under Standard 4.'' 50 CFR 600.325(b). NMFS has determined 
that Amendment 40 is reasonably calculated to promote conservation and 
that the allocation is fair and equitable. Amendment 40 is reasonably 
calculated to promote conversation because it will provide a basis for 
increased flexibility in future management of the recreational sector, 
it will reduce the likelihood of recreational quota overruns, and is 
likely to have positive indirect effects on discard mortality as 
compared to the status quo. With respect to the allocation of the 
recreational quota between the private angling and for-hire components, 
a detailed discussion of the basis for the Council's decision is 
discussed in the amendment and proposed rule. NMFS has determined that 
the allocation is fair and equitable because it reflects both 
historical changes in the recreational sector as well as current 
conditions, and is expected to increase the total benefits to the 
recreational sector.
    Comment 6: Amendment 40 violates National Standard 5 because it 
only establishes an economic sub-allocation of a quota. Thus economic 
allocation is the sole purpose of the action.
    Response: NMFS disagrees that Amendment 40 is inconsistent with 
National Standard 5. National Standard 5 requires that conservation and 
management measures, where practicable, shall consider efficiency in 
the utilization of fishery resources, except no such measure shall have 
economic allocation as its sole purpose. As stated in the proposed rule 
and in the response to Comment 5, the purpose of Amendment 40 is to 
improve management of the recreational sector and increase both 
biological and economic benefits. Amendment 40 will allow the 
development and implementation of management measures better tailored 
to the specific needs of the separate components; improve quota 
monitoring; and reduce bycatch and associated discard mortality 
compared to the status quo. Thus, NMFS has determined that Amendment 40 
and this final rule are consistent with National Standard 5.
    Comment 7: Amendment 40 violates National Standard 8 because, 
without having sufficient information, particularly quantitative 
information of the economic impacts to the Federal for-hire component, 
the Council could not effectively evaluate the effects of the 
allocations. For example, no discussion of the impact of the longer 
season for the Federal for-hire component relative to the shorter 
season for the private angler component was provided. In addition, 
Amendment 40 does not take into account the importance of fishery 
resources to fishing communities dependent on private anglers who 
target red snapper. Nor does it provide for the sustained participation 
or minimize adverse economic impacts on these communities.
    Response: NMFS disagrees that Amendment 40 is inconsistent with 
National Standard 8. National Standard

[[Page 22426]]

8 requires that conservation and management measures take into account 
the importance of fishery resources to fishing communities by utilizing 
economic and social data consistent with National Standard 2 in order 
to provide for the sustained participation of such communities and, to 
the extent practicable, to minimize adverse economic impacts on such 
communities. As discussed in the response to Comment 4, a quantitative 
economic analysis was not provided in Amendment 40 because the 
information required for such an analysis is not available. However, 
Amendment 40 includes a qualitative economic analysis based on the best 
scientific information available, which concludes that, overall, 
greater percentages allocated to the Federal for-hire component would 
correspond to increasing economic benefits to the Federal for-hire 
component and decreasing benefits to the private angling component.
    Amendment 40 does not include an analysis of the impacts of season 
length because the season length depends on a number of factors in 
addition to each component's allocation. As explained in Amendment 40, 
even under the status quo alternative (a single recreational quota), 
the length of the 2015 recreational red snapper season could not be 
projected at the time the Council took final action because final 2014 
harvest information and the results of a 2014 red snapper update 
assessment were not available. However, Amendment 40 did provide 
estimated season lengths for each allocation alternative if sector 
separation was implemented for the 2014 fishing season, and as 
explained below, did consider fishing communities, which generally 
service recreational anglers fishing from all fishing modes.
    With respect to impacts on fishing communities, the National 
Standard 8 Guidelines define a fishing community as place-based, such 
that members of the community ``reside in a specific location'' 50 CFR 
600.345(b)(3). As explained above, Amendment 40 includes an extensive 
economic analysis. Amendment 40 also includes an extensive qualitative 
social analysis including identifying the communities where most 
fishing activity takes place. These analyses are based on the best 
scientific information available.
    Amendment 40 provides a ranked list of fishing communities most 
reliant on recreational fishing, generally, as recreational landings of 
red snapper are not available at the community level. Recreational 
fishing infrastructure, such as marinas and tackle shops, are used by 
recreational anglers fishing from all fishing modes, including charter 
vessels, headboats, and private vessels. The resulting communities are 
all ``general'' recreational fishing communities and not disaggregated 
as private angling communities or for-hire communities. Generally, 
communities that service one component would be expected to service the 
other, such that distinct private angling communities and for-hire 
communities do not exist. However, there are more private recreational 
fishing vessels, there are more departure sites for these vessels, and 
there are no minimum geographic or population size requirements to 
define a community. Thus, there are likely some small and/or isolated 
locations that may only cater to private anglers. In general, however, 
NMFS expects that most communities with substantial amounts of 
recreational fishing infrastructure and services cater to both 
components.
    The National Standard 8 Guidelines define ``sustained 
participation'' as ``continued access to the fishery within the 
constraints of the condition of the resource'' 50 CFR 600.345(b)(4). To 
the extent there may be some small or isolated locations that cater 
only to private anglers who target red snapper, based on historical 
participation, these communities' sustained participation is secured by 
the 57.7 percent of the quota allocated to that component.
    Concerning the requirement to minimize adverse economic impacts on 
communities, as described above, communities from which for-hire 
vessels and private angling vessels depart overlap. Thus, NMFS does not 
expect there to be distinct Federal for-hire communities and private 
angling communities that will experience different effects from this 
action. Further, fishermen in both recreational components also target 
other species, including other reef fish, in addition to red snapper. 
Fishing trips for these species would be unaffected by this action and 
the associated economic benefits from these trips would continue to 
support these coastal communities. Although some anglers may only fish 
for red snapper, the continued viability of these communities, despite 
the brevity of the red snapper recreational fishing season in recent 
years, demonstrates the diversity and resilience of the recreational 
fishing industry and the general absence of reliance on individual 
species at the community level.
    Comment 8: Amendment 40 violates National Standard 10 because it 
would create a derby for private anglers, which will likely result in 
crowded boat ramps, waterways, and artificial reefs, as well as 
negatively affect law enforcement's ability to effectively monitor 
catches.
    Response: NMFS disagrees Amendment 40 violates National Standard 
10. NMFS has determined that Amendment 40 and the final rule are 
consistent with National Standard 10, which requires that conservation 
and management measures, to the extent practicable, promote the safety 
of human life at sea. As noted in the proposed rule, a shorter Federal 
fishing season for the private-angling component will likely be offset 
by extended state fishing seasons. This will reduce both the incentive 
to fish in the EEZ if unsafe fishing conditions exist during the open 
season and the likelihood that boat ramps, waterways, and artificial 
reefs will be crowded to the point of creating a safety concern or 
impeding the ability of law enforcement to effectively monitor catches. 
In addition, private anglers do not have an economic incentive, 
compared to commercial fishermen who earn their living fishing, to fish 
in unsafe conditions. Thus, NMFS has determined that it is unlikely 
that private anglers will attempt to fish for red snapper in Federal 
waters in hazardous weather conditions.
    Comment 9: Given other actions the Gulf Council is working on, it 
is unclear how sector separation will improve red snapper management.
    Response: The purpose and need statement for Amendment 40 explains 
that ``Establishing separate components within the recreational sector 
would provide a basis for flexible management approaches tailored to 
each component and reduce the likelihood for recreational quota 
overruns which could jeopardize the rebuilding of the red snapper 
stock.'' Currently, the Council is working on amendments that consider 
regional management, options for private anglers such as tags and slot 
limits, and the development of for-hire allocation-based programs. By 
separating the recreational sector into the two components and 
establishing component quotas, the Council now has the flexibility to 
focus on maximizing opportunities for each component independently. For 
example, regional management would allow Gulf states or sub-regions of 
the Gulf to be managed differently so long as the proposed regional 
management measures are not projected to exceed the regional quota 
allocation. With two components, the Council has greater flexibility in 
how it manages each.
    Comment 10: No actions should be applied to the recreational sector 
until

[[Page 22427]]

there are better data to determine red snapper recreational harvest.
    Response: NMFS disagrees that no recreational red snapper 
management measures should be developed until some unspecified time in 
the future. National Standard 2 requires that management measures be 
based on the best scientific information available. Consistent with 
this requirement, NMFS currently determines red snapper harvest based 
on harvest information obtained from an MRIP-based private angler/
charter survey; the Southeast Region Headboat Survey; the Louisiana 
Department of Wildlife and Fisheries (LDWF) creel survey; and the Texas 
Parks and Wildlife Department (TPWD) creel survey. NMFS agrees there 
are opportunities to improve the data collection process and is 
collaborating with many of the Gulf States' marine fisheries resource 
agencies to make improvements in both data collection and analysis. Any 
improvements will be incorporated into future management decisions and 
season projections.
    Comment 11: Amendment 40 violates the Magnuson-Stevens Act because 
the fish belong to the recreational sector as a whole. The Magnuson-
Stevens Act does not provide the authority for the Council to divide 
the recreational quota between the Federal for-hire and private-angling 
components. For this same reason, approval of Amendment 40 would 
violate the Administrative Procedure Act.
    Response: NMFS disagrees that Amendment 40 violates the Magnuson-
Stevens Act by separating the recreational sector into two components. 
As discussed in the proposed rule, Section 407(d) of the Magnuson-
Stevens Act requires separate quotas for commercial and recreational 
fishing (which, for the purposes of the subsection includes for-hire 
fishing), and a prohibition on the retention of fish when each quota is 
reached. The Magnuson-Stevens Act does not prohibit the Council from 
further subdividing the recreational quota among different components 
of the recreational sector to improve the management of the fishery, 
and the approach of subdividing a quota has been used repeatedly by 
fishery management councils nationwide as consistent with the authority 
provided in the Act. See e.g., 16 U.S.C. 1853(b)(3)(A) (allowing the 
councils to establish specified limitations which are necessary and 
appropriate for the conservation and management of the fishery on the--
``(A) catch of fish (based on area, species, size, number, weight, sex, 
bycatch, total biomass, or other factors)'').
    The one constraint on managing the two components of the 
recreational sector independently, per section 407(d) of the Magnuson-
Stevens Act, is the mandate to prohibit the retention of red snapper 
when the recreational red snapper quota is reached. Consistent with 
this requirement, this rule does not change the fact that there is a 
total recreational quota or the requirement that the recreational 
sector be closed when that total quota is reached. Thus, if NMFS 
determines that the Gulf-wide recreational quota has been met, all 
recreational harvest of red snapper in the EEZ will be prohibited 
regardless of whether one component has remaining allocation. However, 
the use of an ACT to set the component season lengths will reduce the 
likelihood of this occurring.
    Comment 12: NMFS should disapprove Amendment 40 because several 
Council members should not have voted to submit the amendment for 
implementation. These include two members who have charter for-hire 
vessels and so have a conflict of interest (i.e., the amendment would 
directly benefit them). Three other Council members are members of a 
commercial fishing lobbying-group and failed to list this activity on 
their financial disclosure forms.
    Response: NMFS disagrees. First, Council members appointed by the 
Secretary ``must be individuals who, by reason of their occupational or 
other experience, scientific expertise or training, are knowledgeable'' 
about the relevant fishery resources, and often are individuals who are 
engaged in the fishing industry. Consequently, the MSA provides that a 
conflict of interest alone does not disqualify a Council member from 
voting on a Council decision. Section 302(j)(7) of the Magnuson-Stevens 
Act and the regulations at 50 CFR 600.235(c), prohibit a Council member 
from voting on a Council decision only in specific circumstances, and 
there is no indication that any Council member had a financial interest 
that met the criteria for mandatory recusal. Second, under section 
302(j)(6) of the Magnuson-Stevens Act, the participation of a Council 
member in an action by the Council during any time in which the Council 
member is not in compliance with the financial disclosure regulations 
is not a basis for invalidating that action.
    Comment 13: Amendment 40 does not differentiate between commercial 
and recreational sustenance fishing and should take into account the 
families of these fishermen who they need to feed.
    Response: It is unclear whether the commenter meant sustenance or 
subsistence fishing. Sustenance refers to the consumption of what is 
harvested, whereas subsistence is a circumstance under which the 
harvest of fish, or other foodstuff, is required to meet the minimum 
dietary requirements necessary for living and other more cost-effective 
means to meet these needs are not available. The two terms are not 
equivalent and simply eating what one catches does not qualify as 
subsistence. Amendment 40 would not prevent either recreational or 
commercial fishermen from harvesting and consuming red snapper as long 
as they follow current regulations. Amendment 40 discusses subsistence 
and explains that there are no known claims for subsistence consumption 
of Gulf red snapper by any population including tribes or indigenous 
groups. This rule pertains to the harvest of red snapper in the EEZ, 
which would require a boat capable of safely travelling 3-9 miles (5-14 
km) offshore, depending on its departure location, and associated high 
fuel and gear costs. As a result, the costs associated with the harvest 
of red snapper are inconsistent with the concept of subsistence fishing 
because alternative foods, as well as fresh fish, including red 
snapper, could be purchased more cheaply than the cost of a fishing 
trip. Thus, it is unlikely that there would be any concerns associated 
with subsistence fishing resulting from the actions in this amendment.
    Comment 14: Amendment 40 could force anglers to use for-hire 
services if they want to harvest red snapper and will cause prices for 
for-hire trips to increase as a few people will be able to control 
prices.
    Response: NMFS disagrees that Amendment 40 forces anglers to use 
for-hire services if they want to harvest red snapper and that this 
will cause price increase. Anglers in the private component would only 
have to use for-hire services if they choose to fish in Federal waters 
when the season for the private component is closed. These anglers 
could continue to fish in open state waters during the extended state 
fishing seasons, without using for-hire services. For those anglers who 
choose to use for-hire services to fish in Federal waters, there is 
sufficient capacity in the for-hire fleet to prevent price control. As 
stated in Amendment 40, there are an estimated 1,269 charter vessels 
and 67 headboats operating in the Gulf with charter/headboat reef fish 
permits. The average number of red snapper target trips in the charter 
mode is approximately 54,000 trips, or approximately 40 angler trips 
per charter vessel. Assuming 6 anglers per trip, the average number of 
vessel trips

[[Page 22428]]

per charter vessel would be approximately 7 trips, equivalent to 7 days 
if full-day trips are taken, or fewer than 7 days if some trips are 
half-day trips. Similar information is not available for headboats 
because target information is not collected for these vessels. Although 
all of the charter vessels may not operate in areas where red snapper 
is available, these results show there is ample capacity to increase 
the number of for-hire trips without substantial price changes.
    Comment 15: The analysis in Amendment 40 underestimates the 
expected economic impacts on private anglers and associated businesses 
and communities. Private anglers contribute more to the local economy 
than commercial fishing operations.
    Response: NMFS disagrees. As discussed in Amendment 40, anglers in 
the private angling component would be expected to experience decreased 
harvests and associated economic benefits compared to recent years, if 
their harvest is sufficiently constrained by state regulations, because 
their sub-quota would be less than the portion of the red snapper 
recreational quota they have harvested in recent years. In the long 
term, however, the total economic benefits to the private angling 
component and the recreational sector as a whole would be expected to 
increase due to the enhanced quota monitoring capability and ability to 
better tailor management, through subsequent rulemaking, to the needs 
of each component. Quantitative estimates of the short- or long-term 
economic impacts were not provided because of the lack of appropriate 
data. Although the amount of allowable harvest by the private angling 
component would be reduced, these anglers would retain the ability to 
fish for other species in Federal and state waters. It is unknown, 
however, how many anglers may continue to fish but target other 
species, how many may cease to fish, or the appropriate economic values 
to assign to these anglers. Additionally, even though the private 
angling component quota will be less than recent harvests, if state 
regulations are ineffective in adequately restraining red snapper 
harvest, the total red snapper harvest and associated economic benefits 
accruing to the private angling component may be largely unaffected, 
resulting in shortening of the Federal for-hire season because of the 
quota closure requirements. Nevertheless, if effort is reduced, the 
economic benefits accruing to the private angling component would be 
reduced.
    With respect to the comment that private anglers contribute more to 
the local economy than commercial fishing operations, because the 
provision of for-hire services is a commercial activity, NMFS assumes 
that the commenter was referring to for-hire businesses and not the 
commercial reef fish sector (otherwise the comment is beyond the scope 
of this rule, as Amendment 40 does not affect the commercial sector). 
Although the percent distributions were not provided, the information 
shown in Amendment 40 demonstrates that charter fishing produces more 
business activity per trip than private angling. Although red snapper 
target effort by anglers fishing on charter vessels typically comprises 
less than 20 percent in Louisiana through Florida (comparable 
information on Texas is not available) of total red snapper target 
effort, with the exception of Mississippi, which has minimal charter 
vessel activity compared to the other Gulf states, the business 
activity associated with these trips ranges from approximately 54 
percent to 67 percent. Anglers fishing on charter vessels spend, on 
average, more per trip than private anglers. Although these estimates 
may include anglers that fish on charter vessels and target red snapper 
in state waters, this activity is expected to be minimal compared to 
anglers fishing on charter vessels in Federal waters. Thus, the per 
trip contribution of charter vessel anglers to business activity in 
local communities exceeds that of private anglers. Similar information 
is not available for headboats. Because there are more private angler 
vessels and suitable launch sites for private angler vessels than there 
are for for-hire vessels, there may be isolated areas where the for-
hire presence is limited compared to private angling. However, 
generally, areas with substantial amounts of private angling activity 
also support for-hire businesses. Thus, although there will be areas 
with no access to for-hire services and it is possible to define a 
community as an area so small that for-hire activity is excluded, 
generally, it is expected that the areas that provide private angling 
services also provide for-hire angling services. As a result, areas 
that may experience changes in fishing by private anglers may benefit 
from changes in fishing by for-hire anglers.
    Comment 16: NMFS withheld a decision tool that contained 
information that was vital for the Council to make an informed decision 
on Amendment 40.
    Response: No information vital to the Council decision was 
withheld. The ``decision tool'' referred to in the comment was merely 
an Excel spreadsheet developed by NMFS staff at the request of a single 
for-hire fisherman, and was not related to Amendment 40 or allocating 
quota between the for-hire component and private angling component. 
Rather, the spreadsheet as the fisherman requested, allowed him to 
calculate various quota percentages for use in discussing hypothetical 
individual fishing quota (IFQ) allocations for a hypothetical charter 
vessel IFQ program.
    Comment 17: After any red snapper recreational quota overage, the 
ACT should be reset using the Council's ACL/ACT control rule.
    Response: NMFS disagrees that the component 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 fishing 
season and is intended to help ensure that the quota is not exceeded. 
If a quota overage occurs, the accountability measure's payback 
provision, which reduces the quota by the amount of the overage and 
sets the ACT at 20-percent less than the adjusted quota, 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 may consider revising 
the ACT in the future. The ACL/ACT control rule could be used to 
determine one alternative for an appropriate buffer. The Council may 
also consider other reasonable alternatives before deciding whether to 
adjust the ACT.
    Comment 18: The use of ``historic'' harvest information that is 
more than 30 years old in setting the allocation is not reflective of 
the current make-up of the recreational sector or how communities in 
the Gulf have grown and changed to accommodate the expansion of the 
private recreational component. More recent information including MRIP 
and state marine resource agency harvest data should be used to set the 
allocation.
    Response: The Council, in evaluating different allocation 
alternatives, did consider some alternatives based solely on more 
recent years. However, the Council determined the allocations based 
only on these limited time series did not capture changes that have 
occurred in the fishery, such as changes in regulations and disruptive 
events such as hurricanes and oil spills that have affected how 
recreational fishing is prosecuted. At the same time, the Council also 
recognized the importance of including more recent landings

[[Page 22429]]

information to reflect current conditions in recreational red snapper 
fishing. Therefore, the Council determined, and NMFS agrees, that a 
fair and equitable allocation resulted by using both historic harvest 
information (1986-2013) and more recent harvest information (2006-
2013). This is an approach used by the Council in setting allocations 
for other species (e.g., the jurisdictional apportionment of black 
grouper and yellowtail snapper resources between the Gulf and South 
Atlantic Councils).
    Comment 19: Amendment 40 fails to include any instructions for how 
the quotas for the private and charter vessel/headboat components will 
be managed, but assumes there will be separate harvest accounting 
measures for each component.
    Response: As stated in the response to Comment 2, red snapper 
management for the for-hire and private angling components will be 
managed with a 2-fish bag limit, 16-inch (40.6 cm), total length, 
minimum size limit, and a June 1 season opening and the season for each 
component will be projected based on each component's ACT. However, 
these measures may change in the future as the Council explores 
flexible management approaches tailored to each component. The 
component ACTs, which are 20-percent reductions from the component 
quotas, serve as in-season AMs designed to reduce the likelihood of a 
component exceeding its component quota. If the total recreational ACL 
is exceeded in a fishing year and red snapper are classified as 
overfished, NMFS will adjust the applicable recreational component 
quota(s) and ACT(s) the following fishing year, based on the overage on 
the total recreational quota. As has been done in the past, harvest 
information to compare landings to the quotas for each component will 
be obtained from an MRIP-based private angler/charter survey and the 
LDWF and the TPWD creel surveys. Additional information for the for-
hire component will come from the Southeast Region Headboat Survey. 
These harvest information programs are likely to change as NMFS, 
collaborating with its state partners, work to make improvements in 
both data collection and analysis.
    Comment 20: No portion of the recreational quota should be 
privatized.
    Response: Amendment 40 does not privatize any portion of the red 
snapper recreational quota. The actions in the amendment do four 
things: Split the recreational sector that fishes for red snapper into 
a private angler and a Federal for-hire component; sunsets the 
components after 3 years; provides an allocation of the recreational 
red snapper quota to each of the components; and revises the 
recreational red snapper AMs to account for the two components.
    Comment 21: Amendment 40 does not contain a full fishery impact 
statement (FIS) that takes into consideration the effects of the 
proposed actions on all entities involved.
    Response: The Magnuson-Stevens Act requires that an FIS be prepared 
for all fishery management plans and amendments prepared by or 
submitted to the Secretary after October 1, 1990. The FIS assesses, 
specifies, and analyzes the likely effects, if any, including the 
cumulative conservation, economic, and social impacts of the 
conservation and management measures on fishery participants and their 
communities, participants in the fisheries conducted in adjacent areas 
under the authority of another Fishery Management Council, and the 
safety of human life at sea. Amendment 40, as submitted by the Council, 
contains a full FIS that describes the effects of the action on fishery 
participants and their communities, participants in the fisheries 
conducted in adjacent areas, and the safety of human life at sea. These 
effects are fully analyzed based on the best scientific information 
available (per National Standard 2). The FIS focuses on the effects of 
the preferred alternatives, which are the management measures submitted 
for implementation and approval. Amendment 40 contains additional 
analysis that addresses both the impacts of the preferred alternatives 
as well as those alternatives that were not selected for 
implementation.

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 40, 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 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 comments were received 
regarding the certification to the Small Business Administration. 
Comments regarding the general economic effects of the action are 
addressed in the comments and responses section of this final rule. No 
changes to the final rule were made in response to these comments. As a 
result, a final regulatory flexibility analysis was not required and 
none was prepared.

List of Subjects in 50 CFR Part 622

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

    Dated: April 16, 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.  622.8, paragraphs (a) and (c) are revised to read as 
follows:


Sec.  622.8  Quotas--general.

    (a) Quotas apply for the fishing year for each species, species 
group, sector or component, unless accountability measures are 
implemented during the fishing year pursuant to the applicable annual 
catch limits and accountability measures sections of subparts B through 
V of this part due to a quota overage occurring the previous year, in 
which case a reduced quota will be specified through notification in 
the Federal Register. Annual quota increases are contingent on the 
total allowable catch for the applicable species not being exceeded in 
the previous fishing year. If the total allowable catch is exceeded in 
the previous fishing year, the RA will file a notification with the 
Office of the Federal Register to maintain the quota for the applicable 
species, sector or component from the previous fishing year for 
following fishing years, unless NMFS determines based upon the best 
scientific information available that maintaining the quota from the 
previous year is unnecessary. Except for the quotas for Gulf and South 
Atlantic coral, the quotas include species harvested from state waters 
adjoining the EEZ.
* * * * *
    (c) Reopening. When a species, sector or component has been closed 
based on a projection of the quota specified in this part, or the ACL 
specified in the

[[Page 22430]]

applicable annual catch limits and accountability measures sections of 
subparts B through V of this part being reached and subsequent data 
indicate that the quota or ACL was not reached, the Assistant 
Administrator may file a notification to that effect with the Office of 
the Federal Register. Such notification may reopen the species, sector 
or component to provide an opportunity for the quota or ACL to be 
harvested.

0
3. In Sec.  622.39, paragraphs (a)(2)(i) and (c) are revised to read as 
follows:


Sec.  622.39  Quotas.

* * * * *
    (a) * * *
    (2) * * *
    (i) Recreational quota for red snapper--(A) Total recreational 
quota (Federal charter vessel/headboat and private angling component 
quotas combined)--5.390 million lb (2.445 million kg), round weight.
    (B) Federal charter vessel/headboat component quota--2,279,970 lb 
(1,034,177 kg), round weight. 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, 2016, and 2017 fishing years. For the 2018 and subsequent fishing 
years, the total recreational quota specified in Sec.  
622.39(a)(2)(i)(A) will apply to the recreational sector.
    (C) Private angling component quota--3,110,030 lb (1,410,686 kg), 
round weight. 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 total recreational quota specified in Sec.  
622.39(a)(2)(i)(A) will apply to the recreational sector.
* * * * *
    (c) Restrictions applicable after a recreational quota closure or 
recreational component quota closure. The bag limit for the applicable 
species for the recreational sector or recreational sector component in 
or from the Gulf EEZ is zero. When the Federal charter vessel/headboat 
component is closed or the entire recreational sector is closed, this 
bag and possession limit applies in the Gulf on board a vessel for 
which a valid Federal charter vessel/headboat permit for Gulf reef fish 
has been issued, without regard to where such species were harvested, 
i.e., in state or Federal waters.

0
4. In Sec.  622.41, paragraph (q) is revised 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. The IFQ program for red 
snapper in the Gulf of Mexico serves as the accountability measure for 
commercial red snapper. The commercial ACL for red snapper is equal to 
the commercial quota specified in Sec.  622.39(a)(1)(i).
    (2) Recreational sector. (i) The AA will determine the length of 
the red snapper recreational fishing season, or recreational fishing 
seasons for the Federal charter vessel/headboat and private angling 
components, based on when recreational landings are projected to reach 
the recreational ACT, or respective recreational component ACT 
specified in paragraph (q)(2)(iii) of this section, and announce the 
closure date(s) in the Federal Register. These seasons will serve as 
in-season accountability measures. On and after the effective date of 
the recreational closure or recreational component closure 
notifications, the bag and possession limit for red snapper or for the 
respective component is zero. When the recreational sector or Federal 
charter vessel/headboat component is closed, this bag and possession 
limit applies in the Gulf on board a vessel for which a valid Federal 
charter vessel/headboat permit for Gulf reef fish has been issued, 
without regard to where such species were harvested, i.e., in state or 
Federal waters.
    (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 total recreational quota specified in Sec.  
622.39(a)(2)(i)(A), 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 
total recreational quota by the amount of the quota overage in the 
prior fishing year, and reduce the applicable recreational component 
quota(s) specified in Sec.  622.39(a)(2)(i)(B) and (C) and the 
applicable recreational component ACT(s) specified in paragraph 
(q)(2)(iii) of this section (based on the buffer between the total 
recreational ACT and the total recreational quota specified in the 
FMP), unless NMFS determines based upon the best scientific information 
available that a greater, lesser, or no overage adjustment is 
necessary.
    (iii) The recreational ACL is equal to the total recreational quota 
specified in Sec.  622.39(b)(2)(i)(A). The total recreational ACT for 
red snapper is 4.312 million lb (1.956 million kg), round weight. The 
recreational component ACTs for red snapper are 1.824 million lb (0.827 
million kg), round weight, for the Federal charter vessel/headboat 
component and 2.488 million lb (1.129 million kg), round weight, for 
the private angling component. These recreational component ACTs are 
effective for only the 2015, 2016, and 2017 fishing years. For the 2018 
and subsequent fishing years, the total recreational ACT will apply to 
the recreational sector.

[FR Doc. 2015-09353 Filed 4-21-15; 8:45 am]
BILLING CODE 3510-22-P