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

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS proposes to implement 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). If implemented, this rule would establish a Federal charter vessel/headboat (for-hire) component and private angling component within the recreational sector, allocate the red snapper recreational quota and annual catch target (ACT) between the components based on historical and recent landings, and establish separate red snapper season closure provisions for the Federal for-hire and private angling components. These measures would sunset after 3 years unless the Council takes additional action. The purpose of Amendment 40 is to define distinct private angling and Federal for-hire components of the recreational sector who fish for red snapper, and allocate the recreational quota between these components, to increase the stability for the for-hire component, provide a basis for increased flexibility in future management of the recreational sector, and minimize the chance for recreational quota overruns, which could negatively impact the rebuilding of the red snapper stock.

DATES:

Written comments must be received on or before March 9, 2015.

ADDRESSES:

You may submit comments on the amendment identified by “NOAA-NMFS-2014-0107” by any of the following methods:

• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0107 ,, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
• Mail: Submit written comments to Peter Hood, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

Electronic copies of 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 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: 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.

Background

The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing and achieve, on a continuing basis, the optimum yield (OY) from federally managed fish stocks. These mandates are intended to ensure 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. Amendment 40 includes actions to define distinct private angling and Federal for-hire components of the reef fish recreational sector fishing for red snapper and allocate red snapper resources between these two recreational components. Establishing these separate components is intended to increase the stability for the for-hire component, provide a basis for increased flexibility in future management of the recreational sector, and reduce the likelihood for recreational quota overruns. As a result, the actions are intended to prevent overfishing while achieving the OY, particularly with respect to recreational fishing opportunities, while rebuilding the red snapper stock.

Recreational Red Snapper Fishing

The Gulf red snapper stock is overfished and currently under a rebuilding plan until 2032. Consistent with the rebuilding plan, both commercial and recreational quotas have been allowed to increase as the stock has recovered. The recreational sector, which has experienced quota overages and more recently, shorter seasons, is managed under a quota, bag and size limits, and closed seasons. The recreational season length is determined using projections that rely on previous years' landings information. Even though the recreational quota has increased in recent years, the season length has decreased, in part because the average size of the fish harvested has increased and red snapper are more readily available as the red snapper population has grown (i.e., it takes fewer fish that are more easily caught to fill the quota). Additionally, inconsistent state regulations require NMFS to reduce the length of the Federal recreational fishing season to account for increased state water harvest and have made harvest projections more difficult.

To minimize the chances of the recreational sector exceeding its quota and to mitigate for any quota overages, the Council submitted and NMFS proposed regulations to implement a framework action to the FMP to establish a recreational ACT for red snapper and an accountability measure (AM) that requires an overage adjustment when the recreational quota is exceeded and red snapper are overfished (79 FR 69418, November 21, 2014). The recreational ACT, which is used to set the recreational season length, is calculated by reducing the recreational quota by 20 percent. Should landings exceed the recreational quota, the framework action includes an overage adjustment that would reduce the recreational quota and the recreational ACT in the year following the overage by the amount of the quota overage to mitigate the effects of the overharvest.

The recreational sector in the Gulf includes a private angling component and a for-hire component. The for-hire component includes charter vessels and headboats. Those for-hire vessels with a Federal charter vessel/headboat permit for Gulf reef fish are allowed to fish for red snapper in Federal waters, and those without Federal permits are restricted to fishing for red snapper in state waters. Current recreational management measures are typically applied to the recreational sector as a whole, without making a distinction between the private and for-hire components. Because recreational red snapper fishing seasons in Federal waters have been getting shorter, red snapper fishing opportunities for both the for-hire and private angling components have been reduced.

There has been a moratorium on the issuance of new Federal charter vessel/headboat permits for Gulf reef fish since 2003. This means that no additional Federal permits are available. This also means that access to these vessels is limited to the recreational anglers that pay to fish from these permitted vessels. There is no limit to the number of anglers fishing from private recreational vessels that target reef fish species. Private recreational vessels can harvest red snapper in state waters if the state season is open when the Federal season is closed. There is also no limit to the number of state-issued permits for for-hire vessels operating in state waters. These state-permitted for-hire vessels may harvest federally managed species in state waters only; they may not take paying passengers on trips to harvest federally managed species from Federal waters. Over time, the number of private recreational anglers (state licensed) has increased, while the number of vessels with Federal charter vessels/headboat permits for Gulf reef fish has decreased. As a result, private vessel landings over time have represented a greater proportion of the recreational harvest as a whole. For example, in 2003, NMFS estimates that the Federal for-hire component caught 47.3 percent of the recreational harvest while the private angling component caught 52.7 percent. By 2013, the Federal for-hire component portion had declined to 16.7 percent of the recreational harvest while the private angling component had increased to 83.3 percent. By establishing separate sectors, NMFS intends to stabilize the Federal for-hire component's participation in the sector.

Establishing separate components is also intended to provide a basis for flexible management that can be tailored to the needs of each component, thereby reducing the likelihood for recreational quota overruns which could negatively impact the rebuilding of the red snapper stock. The landings data for each component have different degrees of uncertainty because of differences in how recreational data are collected. Private angler data is derived from surveys whereas for-hire data is 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, it is more difficult to project when the season should close and less effective management measures may be implemented in the recreational sector. 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.

Management Measures Contained in This Proposed Rule

If implemented, this proposed rule would: Establish a Federal for-hire and a private angling component within the Gulf recreational sector fishing for red snapper; establish a Federal for-hire quota and a private angling quota based on the component allocation of the red snapper recreational quota that was selected in Amendment 40; and establish separate red snapper ACTs and seasonal closure provisions for the two components. Under a sunset provision, these management measures would only be in effect for 3 years.

Establishing Private Angling and Federal For-Hire Components

This proposed rule would establish a Federal for-hire and a private angling component within the Gulf recreational sector fishing for red snapper. The Federal for-hire component would include operators of vessels with Federal charter vessel/headboat permits for Gulf reef fish and the private angling component would include anglers fishing from private vessels and state-permitted for-hire vessels (for purpose of calculating landings for the recreational sector as a whole). The Council's rationale for establishing these components is to increase the stability for the Federal for-hire component, provide a basis for increased flexibility in future management of the recreational sector, and minimize the chance for recreational quota overruns. The biological effects analyses in Amendment 40 also explain that Amendment 40 is likely to have positive indirect effects on discard mortality as compared to the status quo. Thus, NMFS has made a preliminary determination that Amendment 40 and this proposed rule are consistent with National Standard 5, which requires that conservation and management measures, where practicable, consider efficiency in the utilization of fishery resources but prohibits any such measure from having economic allocation as its sole purpose.

NMFS has also made a preliminary determination that creating the two components is consistent with the requirement in National Standard 4 that conservation and management measures not discriminate between residents of different States. 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 inconsistent state seasons. 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 EEZ off all Gulf states that will be determined using past landings data and will take into account any harvest allowed in state waters.

Section 407(d) of the Magnuson-Stevens Act requires separate quotas for commercial and recreational fishing (which for the purposes of the subsection includes charter fishing), and a prohibition on the retention of fish when each quota is reached. There is nothing in this section, or elsewhere in the Magnuson-Stevens Act, that prohibits the Council from further sub-dividing the recreational quota among different components of the recreational sector to further improve the management of the fishery, and this approach is one that 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 in section 407(d) is the mandate to prohibit the retention of red snapper when the recreational red snapper quota is reached. Consistent with this requirement, the proposed rule would not change the 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 fishing will be prohibited regardless of whether one component has remaining allocation. As explained below, the use of an ACT to set the component season length will reduce the likelihood of this occurring.

Quotas

This rule would establish component quotas based on the allocation of the recreational quota selected in Amendment 40 with 42.3 percent of the quota going to the Federal for-hire component and 57.7 percent going to the private angling component. Given a 2015 recreational quota of 5.390 million lb (2.445 million kg), the rule would set the Federal for-hire component quota at 2,279,970 lb (1,034,177 kg), round weight and the private angling component quota at 3,110,030 lb (1,410,686 kg), round weight.

In determining the allocation, the Council considered eight alternatives that were based on average percentages of red snapper harvested by the Federal for-hire and the private angling components during various time intervals between 1986 and 2013. These allocation alternatives were calculated using revised landings data and models developed from a Marine Recreational Information Program calibration workshop. This workshop evaluated the potential effects of a change in sampling design in 2013 that resulted in increased estimates of red snapper recreational effort and landings. In order to ensure that the Council's allocation decision was based on the best scientific information available, the preliminary results of this workshop were presented to the Council at the October 2014 meeting and the Council was advised that the preferred allocation reflected in the briefing book version of Amendment 40 could change by up to ±3.3 percent. The Council discussed this new information before submitting Amendment 40 to the Secretary of Commerce for review and implementation. 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 did not result in any changes to the season length projections included in Amendment 40 that estimated the Federal for-hire and private angling fishing seasons if sector separation had been implemented in 2014.

The Council also considered the analysis included in Amendment 40 that addressed the economic impacts of establishing the two recreational sector components and allocating the recreational quota between these two components. A quantitative economic analysis is not presented in the amendment, because the information required for such an analysis is not available. However, Amendment 40 includes an extensive qualitative economic analysis based on the best scientific information available. NMFS has made a preliminary determination that Amendment 40 and the proposed rule are consistent with the mandate in National Standard 8 to use economic and social data that meet the requirements of National Standard 2, which states that conservation and management measures shall be based on the best scientific information available.

The Council selected the alternative that combined the longest time period of available landings (1986-2013) with landings from a more recent range of years (2006-2013). Averages from each of the two time periods were then equally weighted to determine the allocation. The Council selected this allocation because it reflects both historical changes in the recreational sector as well as current conditions. It is also 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).

NMFS has made a preliminary determination that this allocation is fair and equitable, and does not discriminate directly or indirectly among residents of different states, consistent with National Standard 4. NMFS recognizes that the allocation could limit the length of the Federal fishing season for the private-angling component. However, increasing effort, larger fish in the population as the species rebuilds, and inconsistent state seasons have already limited recreational fishing opportunities for red snapper in Federal waters, resulting most recently in a 9-day Federal fishing season in 2014. In addition, a shorter Federal fishing season for the private-angling component will likely be offset by any extended state fishing seasons; private anglers are able to fish for red snapper in state waters outside the Federal fishing season. By separating the sectors, Amendment 40 is expected to increase the total benefits to the recreational sector by stabilizing the Federal for-hire component's participation in the sector, creating a platform for future management that can focus on maximizing opportunities for each component, reducing discard mortality, and reducing the likelihood of recreational quota overruns.

NMFS has also made a preliminary determination that Amendment 40 and the proposed rule is 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 above, a shorter Federal fishing season for the private-angling component will be offset by any extended state fishing seasons, reducing any incentive to fish in unsafe conditions. In addition, unlike commercial fishermen, private anglers do not have an economic incentive 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.

Recreational Season Closure Provisions

The proposed rule would establish 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 would begin on June 1 and the season length would be projected from each component's ACT. The ACTs would be reduced from each component's quota by 20 percent. This is intended to reduce the likelihood that either component will exceed its quota. In 2014, the recreational fishing season was set based on an ACT that was 20 percent below the recreational quota and preliminary landings estimates indicate that this was effective in constraining recreational landings to the quota.

Given the respective component quotas given above, the Federal charter vessel/headboat component ACT would be 1.824 million lb (0.827 million kg), round weight, and the private angling ACT would be 2.488 million lb (1.129 million kg), round weight. Season lengths would be determined after more information about 2014 recreational landings data and the results of an update stock assessment are available.

Sunset Provision

This rule would implement a 3-year sunset provision for the establishment of the Federal for-hire and private angling components and associated management measures. For example, if this rule is implemented in time for the June 1, 2015, Federal recreational fishing season, the components and associated management measures would 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.

Red Snapper Framework Action

As noted above, NMFS published a proposed rule to implement a framework action to the FMP to revise the recreational AMs for red snapper and establish a recreational ACT for red snapper (79 FR 69418, November 21, 2014). That proposed rule added paragraph (q) to § 622.41, and this proposed rule would revise paragraph (q) to § 622.41 to include component specific ACTs and closure provisions. The final rule for the framework action is under development and is expected to publish before a final rule implementing Amendment 40 is published.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator for Fisheries has determined that this proposed rule is consistent with Amendment 40, the FMP, the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if implemented, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows:

The purpose of this proposed rule is to establish distinct private angling and Federal for-hire components of the recreational sector that harvests red snapper and allocate the allowable portion of the red snapper resource between these two components to facilitate the development of management approaches tailored to each component. The Magnuson-Stevens Act provides the statutory basis for this proposed rule.

This proposed rule, if implemented, would directly affect all vessels with a Federal charter vessel/headboat permit for Gulf reef fish (hereafter referred to as a for-hire permit). For-hire vessels that only have a state permit would not be directly affected because they cannot take paying passengers to fish for red snapper in the EEZ. Headboats, which charge a fee per passenger, and charter vessels, which charge a fee on a whole vessel basis, are types of vessel operations that participate in the for-hire fishing sector. A Federal for-hire permit is required for for-hire vessels to harvest reef fish species, including red snapper, in the Gulf exclusive economic zone. On May 29, 2014, there were 1,336 valid (non-expired) or renewable Gulf reef fish for-hire permits. A renewable permit is an expired permit that may not be actively fished, but is renewable for up to 1 year after expiration. Although the for-hire permit application collects information on the primary method of operation, the permit itself does not identify the permitted vessel as either a headboat or a charter vessel and vessels may operate in both capacities. However, only federally permitted headboats are required to submit harvest and effort information to the NMFS Southeast Region Headboat Survey (SRHS). Participation in the SRHS is based on determination by the Southeast Fishery Science Center that the vessel primarily operates as a headboat. Sixty-seven vessels were registered in the SHRS as of April 8, 2014. As a result, the estimated 1,336 vessels expected to be directly affected by this proposed rule are expected to consist of 1,269 charter vessels and 67 headboats. The average charter vessel is estimated to receive approximately $83,000 (2013 dollars) in annual revenue. The average headboat is estimated to receive approximately $251,000 (2013 dollars) in annual revenue.

NMFS has not identified any other small entities that might be directly affected by this proposed rule.

The Small Business Administration has established size criteria for all major industry sectors in the U.S., including fish harvesters. A business involved in the for-hire fishing industry 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 $7.5 million (NAICS code 487210, for-hire businesses) for all its affiliated operations worldwide. All for-hire businesses expected to be directly affected by this proposed rule are believed to be small business entities.

This proposed rule contains three actions that would establish separate Federal for-hire and private angler components for the recreational harvest of red snapper in the Gulf, specify the red snapper quota for each component, and set separate red snapper season closure provisions, based on the annual catch target, for each component. These proposed management changes would sunset after 3 years. Collectively, these actions would be expected to result in increased economic benefits to for-hire small business entities because they would increase the management flexibility to implement component-specific measures designed to increase the economic benefits accruing to each component. The immediate direct economic benefits of this proposed rule primarily, if not exclusively, would be expected to result from the specification of a for-hire component quota. Establishing the for-hire component would establish the platform on which to specify an allocation. Otherwise, no other immediate direct effects would accrue to this action. Establishing separate components, however, would enable future management changes that may be expected to result in increased economic benefits to small entities. These effects would be a direct effect of these future changes, and would be evaluated at that time, and not a direct effect of this proposed rule. Separate seasonal closure provisions would both aid the development of future component-specific management measures designed to increase economic benefits, and help ensure that the benefits expected to accrue to separate component quotas are realized.

The proposed for-hire quota would result from an allocation of 42.3 percent, that is larger than the portion of the allowable red snapper harvest taken by for-hire anglers in 2013 (18 percent) and the average annual harvest of 2011-2013 (23 percent). As a result, the proposed quota would be expected to result in an increase in the red snapper harvest by for-hire anglers, an increase in the number of anglers that harvest red snapper from Federal for-hire vessels and, in turn, an increase in revenue and profits to for-hire vessels carrying these anglers. Meaningful estimation of the total increase in revenue and profits across the entire industry (all Federal for-hire vessels) or per vessel is not possible with available data. Increasing the amount of red snapper that can be harvested by anglers fishing from Federal for-hire vessels would be expected to increase the number of days red snapper may be harvested by these anglers. Because this would augment the “harvest opportunity” provided by a Federal for-hire vessel during the potentially extended season, some Federal for-hire vessels may be able to charge a higher price if angler demand is sufficient. Perhaps more importantly, only a portion of the increased allowable harvest by for-hire anglers would be expected to be taken on new trips. The remaining portion of the quota would be harvested on trips that would occur even if the red snapper season were closed, but could now keep red snapper as a result of the increase in the quota and associated extended season. Federal for-hire revenue would only increase if higher fees are charged or new trips occur. However, because competition would be expected to reduce the opportunity to increase for-hire prices, increases in revenue, and associated profits, are more likely to come from new trips. The proposed sunset provision would be expected to limit the duration of these effects, but not the amount or direction (increased revenue and profits) of these effects.

Because of the uncertainty associated with these factors, meaningful estimates of the expected change in revenue or profits cannot be generated. Nevertheless, the net effect of the actions in this proposed rule is expected to be an increase in profit to the affected Federal for-hire small business entities.

Because this proposed rule, if implemented, would not be expected to have a significant direct adverse economic effect on a substantial number of small entities, an initial regulatory flexibility analysis is not required and none has been prepared.

List of Subjects in 50 CFR Part 622

• Fisheries
• Fishing
• Gulf
• Quotas
• Recreational
• Red Snapper

For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC

1. The authority citation for part 622 continues to read as follows:

Authority: 16 U.S.C. 1801 et seq.

2. In § 622.8, paragraphs (a) and (c) are revised to read as follows:

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

4. In § 622.41, paragraph (q) is revised to read as follows: