[Federal Register Volume 87, Number 84 (Monday, May 2, 2022)]
[Rules and Regulations]
[Pages 25573-25590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09300]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 220426-0106]
RIN 0648-BK77


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Amendment 53

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 53 to the Fishery Management Plan for the Reef 
Fish Resources of the Gulf of Mexico (Gulf)(FMP), as prepared by the 
Gulf of Mexico Fishery Management Council (Council)(Amendment 53). This 
final rule and Amendment 53 modify the allocation of Gulf red grouper 
catch between the commercial and recreational sectors as well as revise 
sector annual catch limits (ACLs) and annual catch targets (ACTs). The 
purposes of this final rule and Amendment 53 are to revise the red 
grouper sector allocations using the best scientific information 
available and to modify the allowable harvest of red grouper based on 
results of the recent stock assessment.

DATES: This final rule is effective June 1, 2022.

ADDRESSES: Electronic copies of Amendment 53, which includes an 
environmental assessment, a fishery impact statement, a Regulatory 
Flexibility Act (RFA) analysis, and a regulatory impact review, and 
electronic copies of a minority report submitted by four Council 
members, may be obtained from the Southeast Regional Office website at 
https://www.fisheries.noaa.gov/action/amendment-53-red-grouper-allocations-and-catch-levels.

FOR FURTHER INFORMATION CONTACT: Peter Hood, NMFS Southeast Regional 
Office, telephone: 727-824-5305, email: <a href="/cdn-cgi/l/email-protection#3444514051461a5c5b5b50745a5b55551a535b42"><span class="__cf_email__" data-cfemail="99e9fcedfcebb7f1f6f6fdd9f7f6f8f8b7fef6ef">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: NMFS and the Council manage the Gulf reef 
fish fishery, which includes red grouper, 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 April 21, 2020, NMFS published a notice of intent to prepare a 
draft environmental impact statement (DEIS) for Amendment 53 and 
requested public comment (85 FR 22137). On December 9, 2021, NMFS 
published a notice of availability for Amendment 53 and requested 
public comment (86 FR 70078). NMFS approved Amendment 53 on March 9, 
2022. On January 19, 2022, NMFS published a proposed rule for Amendment 
53 and requested public comment (87 FR 2737). The proposed rule and 
Amendment 53 outline the rationale for the actions contained in this 
final rule. A summary of the management measures described in Amendment 
53 and implemented by this final rule is described below.
    Unless otherwise noted, all weights in this final rule are in 
gutted weight.

Background

    Red grouper in the Gulf exclusive economic zone (EEZ) are found 
primarily in the eastern Gulf on offshore hard bottom areas and are 
managed as a single stock with commercial and recreational ACLs and 
ACTs. The allocation of the ACL between the commercial and recreational 
sectors is currently 76 percent commercial and 24 percent recreational 
and was set through Amendment 30B to the FMP in 2009 (74 FR 17603; 
April 16, 2009).
    Commercial red grouper fishing is managed under the Grouper-
Tilefish Individual Fishing Quota (IFQ) program, which began January 1, 
2010, through Amendment 29 to the FMP (74 FR 44732; August 31, 2009, 
and 75 FR 9116; March 1, 2010). Under the IFQ program, the commercial 
red grouper quota is based on the commercial sector's red grouper ACT 
(commercial quota), and red grouper allocation is distributed on 
January 1 of each year to those who hold red grouper shares. Both red 
grouper and gag, another grouper species managed under the IFQ program, 
have a multi-use provision that allows a portion of the red grouper 
quota to be harvested under the gag allocation, and vice versa. The 
multi-use provision is based on the difference between the respective 
ACLs and ACTs and is intended to reduce bycatch.
    The recreational red grouper harvest is managed with catch limits, 
in-season and post-season accountability measures (AMs), season and 
area closures, a minimum size limit, and a recreational bag limit. The 
in-season AM for red grouper requires NMFS to close the recreational 
sector for the remainder of the fishing year when red grouper landings 
reach or are projected to reach the recreational ACL. If recreational 
landings exceed the red grouper recreational ACL in a fishing year, the 
post-season AM requires NMFS to shorten the length of the following 
recreational fishing season by the amount necessary to ensure landings 
do not exceed the recreational ACT. If the red grouper stock is 
overfished, NMFS must also reduce the ACL and ACT by the amount of the 
recreational ACL overage in the prior year. The recreational red 
grouper AMs were implemented in 2012 (77 FR 6988; February 10, 2012) 
and were modified in 2013 (78 FR 6218; January 30, 2013).
    In 2018, the Council received a recommendation from its Scientific 
and Statistical Committee (SSC) to reduce the red grouper commercial 
and recreational ACLs and ACTs, effective for the 2019 fishing year. 
This recommendation was based on an interim analysis conducted by the 
Southeast Fisheries Science Center (SEFSC). The Council also heard 
concerns from fishermen about the condition of the red grouper stock 
because commercial and recreational harvests were well below the 
respective quota and ACL. The SSC did not recommend a new acceptable 
biological catch based on the analysis but determined that the analysis 
did support recommending that the Council reduce the 2019 total ACL 
from 10.70 million lb (4.85 million kg) to 4.60 million lb (2.09 
million kg). The Council noted the severe red tide conditions that 
occurred in the summer and fall of 2018 off the Florida west coast and 
decided to further reduce the total ACL to an amount equivalent to the 
2017 harvest of 4.16 million lb (1.89 million kg). The Council took 
action by initially requesting an emergency rule to reduce red grouper 
ACLs and ACTs (84 FR 22389, May 17, 2019), and then making the harvest 
reductions permanent in a subsequent framework action (84 FR 52036; 
October 1, 2019).
    The Southeast Data, Assessment, and Review (SEDAR) 61 assessment 
was completed in September 2019, and used updated recreational catch 
and effort data from the Marine Recreational Information Program (MRIP) 
Access Point Angler Intercept Survey (APAIS) and Fishing Effort Survey 
(FES). MRIP

[[Page 25574]]

began incorporating a new survey design for APAIS in 2013 and replaced 
the Coastal Household Telephone Survey (CHTS) with FES in 2018. Prior 
to the implementation of MRIP in 2008, recreational landings estimates 
were generated using the Marine Recreational Fisheries Statistics 
Survey (MRFSS). As explained in Amendment 53, total recreational 
fishing effort estimates generated from MRIP-FES are generally higher 
than both the MRFSS and MRIP-CHTS estimates. This difference is because 
MRIP-FES is designed to more accurately measure fishing activity, not 
because there was a sudden increase in fishing effort. Therefore, the 
current red grouper total ACL and recreational ACL of 4.16 million lb 
(1.89 million kg) and 1.00 million lb (0.45 million kg), respectively, 
in MRIP-CHTS units, would be an estimated 5.26 million lb (2.39 million 
kg) and 2.10 million lb (0.95 million kg), respectively, in MRIP-FES 
units.
    NMFS developed calibrations models to adjust historic effort 
estimates so that they can be compared to new estimates from MRIP-FES. 
The calibration methodologies are discussed in Amendment 53 as well as 
in the SEDAR 61 final report. In response to comments on the integrated 
DEIS, NMFS added information to Section 1.1 of Amendment 53 and 
included links to the calibration peer reviews. However, this peer 
review information has been publicly available since the reviews were 
completed in 2017 and 2018. In addition, a publication titled ``Survey 
Design and Statistical Methods for Estimation of Recreational Fisheries 
Catch and Effort'' explains the different recreational fishing surveys 
and the time-series calibration methods. This publication has been 
available since 2018, and can be found at https://media.fisheries.noaa.gov/2021-09/MRIP-Survey-Design-and-Statistical-Methods-2021-09-15.pdf.
    The SEDAR 61 assessment concluded that the Gulf red grouper stock 
is not overfished and overfishing is not occurring, but that as of 
2017, the stock remained below the spawning stock biomass (SSB) at 30 
percent of the spawning potential ratio (SPR), where SPR is the ratio 
of SSB to its unfished state. Based on the results of SEDAR 61, the 
Council's SSC recommended an overfishing limit (OFL) of 5.35 million lb 
(2.43 million kg) and an acceptable biological catch (ABC) of 4.90 
million lb (2.22 million kg). Because these catch levels are in MRIP-
FES units, the recommended ABC appears to be greater than the current 
total ACL of 4.16 million lb (1.89 million kg), but would actually 
result in a decrease in allowable harvest when compared to the total 
ACL in MRIP-FES units of 5.26 million lb (2.39 million kg). In 
addition, these catch level recommendations assumed status quo sector 
allocations for red grouper, which were based in part on 1986-2005 
landings estimates generated by MRFSS. As explained in Amendment 53, 
retaining the current sector allocations would increase the commercial 
ACL but substantially decrease the recreational ACL when comparing like 
units. Therefore, the Council requested that the SSC review alternative 
catch level projections based on sector allocation alternatives that 
used MRIP-FES data and several time series (1986-2005, 1986-2009, and 
1986-2018). The SSC reviewed these alternative sector allocation 
scenarios, affirmed that the SEDAR 61 (2019) assessment, which included 
MRIP-FES recreational landings, represented the best scientific 
information available, and provided alternative catch level 
recommendations to the Council based on the allocation alternatives.
    The commercial-recreational allocation impacts the catch level 
projections produced by the assessment. As more of the total ACL is 
allocated to the recreational sector, the proportion of recreational 
discards increases. Recreational discard mortality rates are assumed to 
be less than commercial discard mortality rates, but the magnitude of 
recreational discards is considerably greater than commercial discards. 
There are less than 850 vessel with commercial reef fish permits and 
even less vessels on which red grouper is harvested. In each year from 
2014 through 2018, between 374 and 384 commercial vessels were 
associated with red grouper landings. NMFS does not have information on 
the number of recreational anglers who harvest red grouper, but 
recreational anglers are estimated, on average, to have taken over a 
million trips per year between 2014-2018 on which they have caught red 
grouper.
    Generally, a fish caught and released by a recreational fishermen 
has a greater likelihood of survival than by a commercial fishermen 
because of how and where they fish. However, because of the much 
greater numbers of red grouper that are released by the recreational 
sector compared to the commercial sector, the total number of discards 
that die from recreational fishing exceeds those from commercial 
fishing. This higher discard mortality for the stock, as well as 
assumed changes to the population structure that results from more 
recreational harvest, results in a lower projected annual yield, which 
means a lower OFL, ABC, and total ACL. However, change in discards is 
not due to any change in how the recreational sector prosecutes the 
fishery but occurs because MRIP-FES estimates higher levels of fishing 
effort, and consequently a greater number of fish being caught, which 
includes discards and the associated mortality of discarding fish.
    In Amendment 53, the Council considered several allocation 
alternatives: Maintaining the current allocation, maintaining the 
current commercial ACL and allocating the remaining pounds to the 
recreational sector, and using the various time series reviewed by the 
SSC to adjust the allocation to reflect the most recent understanding 
of historical landings. The Council decided to adjust the allocation 
using the same years used to set the current allocation in Amendment 
30B to the FMP (1986-2005). The Council determined that this would best 
represent the historic landings for the years used in Amendment 30B 
while accounting for the change from MRFSS data to MRIP-FES data. 
Because the MRIP-FES landings estimates are greater than the previous 
estimates of recreational landings estimates, the commercial-
recreational allocation would shift from 76 percent and 24 percent, 
respectively, to 59.3 percent and 40.7 percent, respectively. Based on 
the results of SEDAR 61 and using the revised allocation of 59.3 
percent commercial and 40.7 percent recreational, the Council's SSC 
recommended an OFL of 4.66 million lb (2.11 million kg) and an ABC of 
4.26 million lb (1.93 million kg). The total ACL is equal to the ABC.

Management Measures Contained in This Final Rule

    This final rule revises the sector ACLs and ACTs for the Gulf red 
grouper stock.

Annual Catch Limits and Annual Catch Targets

    The current commercial ACL and ACT are 3.16 million lb (1.43 
million kg) and 3.00 million lb (1.36 million kg), respectively. The 
current recreational ACL and ACT are 1.00 million lb (0.45 million kg) 
and 0.92 million lb (0.42 million kg) in MRIP CHTS units, respectively. 
In MRIP FES units, the current recreational ACL and ACT are estimated 
to be 2.10 million lb (0.95 million kg) and 1.93 million lb (0.88 
million kg), respectively.
    As explained previously, the ABC associated with the preferred 
allocation is 4.26 million lb (1.93 million kg) and the total ACL is 
equal to the ABC. Applying the allocation selected by the Council in 
Amendment 53 to the total

[[Page 25575]]

ACL results in a 2.53 million lb (1.15 million kg) commercial ACL and a 
1.73 million lb (0.78 million kg) recreational ACL in MRIP FES units.
    The Council did not apply the ACL/ACT Control Rule to set the 
commercial buffer between the ACL and ACT. Normally, a sector managed 
using an IFQ program without a commercial quota overage during its 
reference period (as was the case for the reference period 2016-2019) 
would yield a 0 percent buffer from the control rule. Instead, in 
Amendment 53, the Council decided to continue using a buffer of 5 
percent between the commercial ACL and ACT to allow red grouper and gag 
share categories in the IFQ program to have a multi-use provision that 
allows a portion of the red grouper quota to be harvested under the gag 
multi-use allocation, and vice versa. Applying the 5 percent buffer to 
the revised commercial ACL of 2.53 million lb (1.15 million kg) results 
in a commercial ACT of 2.40 million lb (1.09 million kg).
    The Council did apply the ACL/ACT Control Rule to set the 
recreational sector buffer between the ACL and ACT. Using 2016-2019 
MRIP FES landings data in the control rule produced a buffer of 9 
percent, one percentage point greater than the current buffer. Applying 
this 9 percent buffer to the revised recreational ACL of 1.73 million 
lb (0.78 million kg) resulted in a recreational ACT of 1.57 million lb 
(0.71 million kg) in MRIP FES units.

Minority Report

    A minority report signed by four Council members raises several 
objections to the preferred allocation in Amendment 53, including 
allegations that the preferred allocation violates National Standards 4 
and 9, as well as section 302(i)(6) of the Magnuson-Stevens Act. The 
minority report also asserts that the Council did not follow its 
allocation policy. These issues, which mirror some of the comments 
received on the notice of availability for Amendment 53 and the 
proposed rule, are addressed in this final rule.

Comments and Responses

    NMFS received 81 comments on the notice of availability for 
Amendment 53 and 102 comments on the proposed rule, including comments 
containing signed letters as part of a petition. The petition, which is 
opposed to Amendment 53, had 2,588 signatures. In general, anglers and 
groups supporting recreational fishing are in favor of the revised red 
grouper allocation in Amendment 53. Commercial fishermen, commercial 
fishing organizations, seafood dealers and wholesalers, and seafood 
restaurant organizations and owners oppose the revised allocation and 
support maintaining the status quo allocation and the higher OFL, ABC, 
and commercial ACL in Alternative 2 of Action 1. Some comments were 
outside the scope of this action. These comments include suggestions 
that additional red grouper management measures are necessary such as 
allowing anglers to keep undersized fish, shortening the recreational 
season, developing a tag system for red grouper recreational fishing to 
make the sector more accountable, and eliminating the red snapper and 
grouper-tilefish IFQ programs. Other comments expressed concern that 
this action would result in less monitoring of red tide and suggested 
that NMFS determine that red grouper be considered overfished based on 
a previous minimum stock size threshold. NMFS has not made any changes 
from the proposed rule to this final rule based on public comment.
    Comments specific to Amendment 53 and the proposed rule are grouped 
as appropriate and summarized below, each followed by NMFS' respective 
response.
    Comment 1: The Council did not follow NMFS' Policy Directive 01-
119, Fisheries Allocation Review Policy or NMFS' Procedural Directive 
01-119-01, Criteria for Initiating Allocation Reviews. These directives 
require the Council to undertake an allocation review before it 
considers a potential change to an existing allocation in an amendment 
document (i.e., an allocation action).
    Response: The NMFS Allocation Review Policy recommends a three-step 
process to ensure fisheries allocations are periodically evaluated to 
remain relevant to current conditions: Trigger, review, evaluation of 
options. Nothing in the policy states that the steps are mandatory or 
that the review and evaluation of options must happen sequentially. The 
Council initiated a review of the red grouper allocation through 
Amendment 53 because SEDAR 61 included MRIP-FES calibrated recreational 
landings data and the catch level advice provided by the SSC was in 
MRIP-FES units. Amendment 53 incorporated both the Council's allocation 
review and evaluation of options, and all of the relevant ecological, 
economic, social, and performance factors identified in NMFS' 
Procedural Directive 01-119-01 were considered in Amendment 53.
    Comment 2: NMFS failed to comply with NEPA by using an 
inappropriate no action allocation alternative for Action 1, not 
considering a sufficient range of alternatives for Action 1, and not 
taking a hard look at the environmental impacts.
    Response: NMFS has complied with the requirements of NEPA. With 
respect to the no action allocation alternative, a red grouper 
management system is in place. Therefore, ``the `no action' alternative 
may be thought of in terms of continuing with the present course of 
action until that action is changed.'' (See ``Forty Most Asked 
Questions Concerning CEQ's National Environmental Policy Act 
Regulations'' (https://www.energy.gov/nepa/downloads/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act).) 
Consistent with this guidance, the no action alternative (Alternative 
1) maintains the current allocation and catch levels in MRIP-CHTS 
units. However, selecting this alternative would not be consistent with 
the requirements of the Magnuson-Stevens Act because the best 
scientific information available, which the SSC used to make its catch 
level recommendations, indicates the OFL and ABC (and consequently 
ACLs) need to be revised to incorporate MRIP-FES data and reflect the 
condition of the stock. With respect to a reasonable range of 
alternatives, six alternatives were considered in Action 1 including a 
no action alternative. These alternatives considered maintaining the 
current sector allocation percentages, adjusting the allocation 
percentages by maintaining the current commercial ACL, and adjusting 
the allocation percentages using three different time series in keeping 
with amendment's need to ensure the allocation accurately reflects 
historical participation of both sectors. In the analysis of these 
alternatives as well as Action 2 alternatives to set the ACT buffer, 
NMFS did take a hard look at the environmental impacts, explaining that 
a shift in allocation to the recreational sector is expected to have 
the most impact on red grouper discards because of how that sector 
operates. In sum, the alternatives addressed the purpose and need laid 
out in the final EIS and identified alternative ways of meeting the 
need, and NMFS analyzed the physical, biological, economic, social, and 
administrative impacts to the human environment of each alternative.
    Comment 3: Because the comment period for the DEIS closed after the 
Council made its decision to take final action and approve Amendment 
53, the Council was not able to review all of the comments submitted to 
NMFS before taking final action, and therefore, was not able to take 
those comments into consideration in making its decision.

[[Page 25576]]

    Response: Although NMFS and the Council try to have the comment 
period on a DEIS close before the Council makes a decision to submit an 
action to NMFS, there is no legal requirement to do so. The 
environmental impact statement (EIS) for this action is incorporated 
into the Council's plan amendment but is prepared under the National 
Environmental Policy Act (NEPA), which requires that Federal agencies 
consider the environmental impacts of their actions in the decision-
making process. NMFS is the Federal action agency for Amendment 53 and 
is responsible for complying with NEPA. NMFS used comments submitted on 
the DEIS to improve the final EIS and also used those comments to 
inform NMFS on the decision to approve, disapprove, or partially 
approve Amendment 53.
    Consistent with the requirements of the Magnuson-Stevens Act, the 
Council held public hearings during the development of Amendment 53. 
These included discussion at several Council meetings, as well as at 
several separate public hearings that focused solely on this amendment. 
Therefore, stakeholders had numerous opportunities, both before and 
after the DEIS was made available in May 2021, to provide input to the 
Council before it made its decision to approve Amendment 53 at the June 
2021 meeting.
    Comment 4: NMFS improperly made changes to Amendment 53 after the 
Council voted to submit the amendment for review and implementation. 
These changes include post hoc justifications related to arguments made 
in the minority report after the Council approved the amendment, 
including the conclusion that closed seasons likely impose some 
negative impacts on the red grouper stock and the revised allocation 
might have no impact on discards because anglers may catch and discard 
the same amount of red grouper whether their season is open or closed.
    Response: At its June 2021 meeting, the Council expressly 
authorized Council and NMFS staff to make any required editorial 
changes to the amendment after it was approved by the Council. Further, 
Amendment 53 is an integrated document that incorporates the 
requirements of the Magnuson-Stevens Act, as well as other applicable 
laws such as NEPA and the Regulatory Flexibility Act. As the Federal 
agency responsible for NEPA compliance, NMFS published a DEIS and 
responded to comments on the draft in the final EIS. As those responses 
indicate, NMFS used comments submitted on the DEIS to improve the final 
EIS. With respect to the assertion that any changes were post hoc 
justifications related to arguments made in the minority report after 
the Council approved the amendment, NMFS is responsible for approving 
or disapproving Amendment 53, and any changes to the document were made 
before that approval decision occurred.
    The Bycatch Practicability Analysis (BPA) in Amendment 53 includes 
a discussion of closed seasons and concludes in part that ``[t]he 
benefits of the ACL reduction on red grouper bycatch may be partially 
offset by the regulatory discards that would occur by fishermen that 
target other species and catch red grouper should a closure occur for 
the recreational sector.'' (page 215). Although an earlier draft 
indicated that ``[c]losed season discards are not believed to be 
significant in the recreational red grouper sector,'' this was in 
reference to the February 1 through March 31 seasonal closure in waters 
beyond the 20-fathom contour. This closure would be in effect 
regardless of any action in Amendment 53 and would have no added effect 
on discards. The final version of Amendment 53 provided additional 
information in the BPA on closures noting general negative effects from 
regulatory discards. These effects are also noted in other sections of 
Amendment 53 (e.g., Section 3.3; page 48 and Section 4.1.2; page 97).
    Comment 5: Amendment 53 is inconsistent with Section 303(a)(15) of 
the Magnuson-Stevens Act and the National Standard (NS) 1 Guidelines 
because the ACLs include only landed fish, not both landed and 
discarded fish as required by the NS 1 Guidelines.
    Response: Section 303(a)(15) requires the FMP to include ACLs and 
AMs, and the NS 1 Guidelines define catch as including both landed fish 
and dead discards (50 CFR 600.310(f)(3)(i)). However, the NS 1 
Guidelines also state that the ABC, on which the ACLs are based, may be 
expressed in terms of landings as long as estimates of bycatch and any 
other fishing mortality not accounted for in the landings are 
incorporated into the determination of ABC. The ABCs recommended by the 
SSC were derived from SEDAR 61, which accounts for dead discards and 
other sources of mortality (e.g., red tide).
    Comment 6: The allocation adopted in Amendment 53 increases the 
risk of overfishing and does not allow the fishery to harvest the 
optimum yield (OY) because the high level of dead discards from the 
recreational sector reduces the ABC.
    Response: The allocation adopted in Amendment 53 does not 
substantially increase the risk of overfishing or prevent achieving OY. 
The risk of overfishing is the same under all of the allocation 
alternatives considered by the Council. When the SSC recommended the 
alternative OFLs shown in in Table 1.1.3 in Amendment 53 (page 7), the 
SSC used the same probability of overfishing (P*) value of 0.5. A P* of 
0.5 means that there is a 50 percent the chance of overfishing at that 
level of harvest. For setting the ABC, the SSC used a more conservative 
P* of 0.30, which corresponds to a 30 percent chance of overfishing. 
Harvest by the commercial sector is constrained by the IFQ program. The 
recreational harvest is constrained through bag limits, size limits, 
and seasonal closures. Additionally, as discussed in Section 1.1 of 
Amendment 53 (page 3), both in-season and post-season AMs are in place 
to help constrain the recreational harvest to its ACL and prevent 
overfishing. The recreational sector has exceeded its ACL only once in 
the past 10 years as shown in Table 2.1.3 (page 20).
    As explained below in response to Comment 15, the projected ABC 
decreases as more fish are allocated to the recreational sector because 
this allocation shift is expected to result in more encounters with red 
grouper and higher overall discards, and is also expected to change the 
age-specific population structure of the stock. However, this reduction 
in the ABC and corresponding total ACL does not mean that the fishery 
is not achieving OY on a continuing basis. OY is the long-term average 
desired yield from a stock that provides ``the greatest overall benefit 
to the Nation, particularly with respect to food production and 
recreational opportunities'' and is reduced from the maximum 
sustainable yield to take into account economic, social, and ecological 
factors (16 U.S.C. 1802(33); 50 CFR 600.310 (e)(3)(iii)(A)). ACLs 
represent the amount of fish available each year that is consistent 
with achieving the long-term OY and preventing overfishing (50 CFR 
600.310(f)(4)(iv)). With respect to red grouper, Secretarial Amendment 
1 defined the OY as yield at 75 percent of F<INF>MSY</INF> where F 
means fishing mortality rate and MSY means maximum sustainable yield 
(https://gulfcouncil.org/wp-content/uploads/Secretarial-Amendment-1-2004-including-SEIS-RIR-and-IRFA-1_508Compliant.pdf). The SEDAR 61 
results presented to the SSC in September 2019 assumed the status quo 
allocation, and included projected catch at OY of over 6.4 million lb 
(2.9 million kg). However, SEFSC staff cautioned the SSC that if the 
2018 red tide event was

[[Page 25577]]

severe, there would be a high probability of overfishing if catch 
levels were set using the OY projections. The projections using OY and 
assuming a similar red tide event as occurred in 2005 would have 
resulted in catch levels slightly below the 4.90 million lb (2.22 
million kg) ABC originally recommended by the SSC (Figure 5.7 of SEDAR 
61). After the Council requested that the SSC review various 
alternative projection scenarios based on different allocations, the 
SEFSC did not include additional projections using OY because, as 
explained previously, the SSC determined that it was appropriate to use 
a P* of 0.3 (30 percent probability of overfishing) to set an ABC. 
However, similar to the projections using the SSC's desired approach, 
any projections using the OY would have changed with a change in the 
allocation. Thus, the sector allocation influences the total amount of 
fish available for harvest, but does not affect the goal of achieving 
OY (providing the greatest overall benefit to the Nation with respect 
to both food production and recreational opportunities) on a continuing 
basis.
    The commercial and recreational sectors have different economic, 
social, and cultural goals and objectives. Participants in the 
commercial sector tend to seek to maximize harvest and efficiency while 
participants in the recreational sector tend to seek to maximize access 
and opportunities. These different goals and objectives impact fishing 
behavior, which generally results in more discards by the recreational 
sector. The results of SEDAR 61 and the catch level advice provide by 
the Council's SSC require a reduction in the total ACL. Amendment 53 
reduces each sector's catch levels by approximately the same 
percentage, providing the greatest overall benefit to the Nation with 
respect to both food production and recreational opportunities. While 
the status quo allocation alternative (Action 1, Alternative 2) 
advocated for by the commercial sector may result in the largest stock 
ACL, it would not provide the greatest overall benefit to the Nation 
because it would require the recreational sector to carry the full 
burden of the reduction, resulting a in a much shorter recreational 
fishing season and a related reduction in recreational opportunities.
    Comment 7: Amendment 53 is inconsistent with NS 2 because the 
revised allocation is based on MRIP-FES landing estimates, which have 
not been determined to be the best scientific available information, 
particularly by the Council's SSC. MRIP-FES does not provide realistic 
estimates of historical landings because the fishery has changed since 
1986 and the MRIP-FES landings estimates of historical landings are 
highly uncertain. Any use of MRIP-FES data for allocation changes 
should be delayed until the accuracy of this survey is improved.
    Response: NMFS has determined that Amendment 53 is consistent with 
NS 2 and that the MRIP-FES landings estimates represent the best 
scientific information available. This determination is supported by a 
September 8, 2021, memorandum from the SEFSC as well as the 
recommendations for the Council's SSC. The SEDAR 61 stock assessment 
incorporated landings data from the MRIP-FES survey, which is 
considered a better survey than the prior MRIP-CHTS survey (see https://www.fisheries.noaa.gov/recreational-fishing-data/effort-survey-improvements). In July 2020, the Council's SSC held a workshop on 
calibrating MRIP-FES and MRIP CHTS (https://gulfcouncil.org/ssc/archive/; July 2020). The SSC examined the differences in methodology 
and outcomes between the fishing effort estimates produced by the 
different surveys. At that time, the SSC recommended that the Council 
wait for a stock assessment before adopting a different data unit for 
quota monitoring, to better understand the effects of such a transition 
on the stock from all perspectives. The SEDAR 61 stock assessment was 
the first assessment to use the calibrated landings. As discussed in 
the Section 1.1 of Amendment 53 (pages 3-7), the SSC accepted SEDAR 61 
as the best scientific information available, specifically 
acknowledging that it utilizes MRIP-FES recreational landings 
estimates.
    Comment 8: Amendment 53 violates NS 4 because the revised 
allocation is not fair and equitable, it is not tied to an FMP 
objective, forces the commercial sector to subsidize dead discards in 
the recreational sector, and ignores catch limit overages by the 
recreational sector as well as factors that would have increased the 
commercial allocation. The revised allocation also fails to promote 
conservation by allowing for an increase in the number of dead discards 
from the recreational sector.
    Response: NMFS has determined that Amendment 53 is consistent with 
NS 4. As noted in Section 1.3 of Amendment 53 (page 8), the overall 
goal of the FMP is to attain the greatest overall benefit to the Nation 
with particular reference to food production and recreational 
opportunities on the basis of the MSY as reduced by relevant 
ecological, economic, or social factors. The FMP objectives that 
support this goal and are tied to the revised allocation and catch 
limits include preventing overfishing and promoting stability in the 
fishery by allowing for enhanced fisher flexibility and increasing 
fishing opportunities to the extent practicable.
    The commercial sector is not subsidizing dead discards from the 
recreational sector. Recreational fishing for red grouper (and many 
other species) typically involves higher levels of discards, but the 
Magnuson-Stevens Act includes recreational opportunities in its 
definition of OY. In pertinent part, the Magnuson-Stevens Act defines 
the optimum yield as the amount of fish which will provide the greatest 
overall benefit to the nation with respect to food production and 
recreational opportunities. The allocation implemented through this 
final rule does result in less total annual harvest by both sectors. 
However, as explained in response to Comment 6, the two sectors have 
different objectives, and operate differently to achieve those 
objectives. Participants in the commercial sector tend to seek to 
maximize harvest and efficiency while participants in the recreational 
sector tend to seek to maximize access and opportunities. These 
different goals and objectives impact fishing behavior, which generally 
results in more discards by the recreational sector. The Council and 
NMFS must consider and account for these differences when determining 
whether an allocation fairly and equitably allocates fishing privileges 
and provides the greatest overall benefit to the Nation with respect to 
both food production and recreational opportunities. In addition, as 
explained in response to Comment 15, the shift in allocation to the 
recreational sector impacts more than the discards assumed in the SEDAR 
61 projections. It also changes the assumptions about the future 
population structure of the stock, which also impacts the projected 
allowable catch.
    The revised allocation does not ignore catch level overages by the 
recreational sector or factors that would have increased the commercial 
allocation. As explained in the response to Comment 24, there was no 
commercial-recreational allocation for red grouper prior to Amendment 1 
to the FMP, and the recreational sector did not have a catch limit 
until 2004 when a catch target of 1.25 million lb (0.57 million kg) was 
put in place. In addition, both sectors exceeded their catch limits in 
2004 and 2005, which are the final 2 years used to set the original 
sector allocation and update the allocation in this amendment.

[[Page 25578]]

    With respect to promoting conservation, the NS 4 Guidelines state 
that a conservation and management measure ``may promote conservation 
(in the sense of wise use) by optimizing the yield in terms of size, 
value, market mix, price, or economic or social benefit of the 
product.'' Consistent with section 303(a)(14) of the Magnuson-Stevens 
Act, the NS 4 Guidelines also state that to the extent that it is 
necessary to reduce the overall harvest in a fishery, any harvest 
restrictions must be allocated fairly and equitably among the 
commercial, recreational, and charter fishing sectors of the fishery. 
The revised allocation promotes wise use by considering both the 
biological impacts to the red grouper stock, including preventing 
overfishing, and the economic and social impacts to fishery 
participants. The revised allocation maintains the balance between 
recreational access and commercial harvest. As explained in more detail 
in the responses to Comments 11 and 24, maintaining the current 
allocation would decrease the total ACL and recreational ACL, but 
increase the commercial ACL. This would increase net economic benefits 
in the commercial sector but would also decrease net economic benefits 
in the recreational sector by a significantly larger amount, and result 
in the largest decrease in net economic benefits to the Nation of all 
the alternatives considered. In contrast, the revised allocation 
reduces the commercial and recreational ACLs by similar percentages 
(approximately 20 percent and 18 percent, respectively) and is expected 
to result in the greatest net economic benefits to the Nation. With 
respect to dead discards, SEDAR 61 assumes that dead discards from the 
recreational sector increase as the allocation to that sector 
increases, but does not take into account discards that occur during a 
recreational season closure that NMFS must implement when the 
recreational ACL is projected to be met. NMFS expects the preferred 
allocation to allow the recreational season to remain open until mid-
December, whereas maintaining the current allocation would require a 
closure in early August (Table 2.1.4 in Amendment 53). Thus, any 
decrease in bycatch and bycatch mortality that may result under the 
current allocation may be partially offset by an increase in regulatory 
discards that occur when a recreational closure is in effect (Appendix 
B of Amendment 53).
    Comment 9: Amendment 53 violates NS 5 concerning efficiency because 
there is no conservation crisis that justifies reducing the quota 
available to the commercial sector, which more efficiently uses the 
resource.
    Response: NMFS has determined that Amendment 53 is consistent with 
NS 5. NS 5 requires that conservation and management measures, ``where 
practicable, consider efficiency in the utilization of fishery 
resources; except that no such measure shall have economic allocation 
as its sole purpose.'' Neither NS 5 nor the NS 5 guidelines require a 
``conservation crisis'' as a precursor for management action. The NS 5 
Guidelines explain that ``given a set of objectives for the fishery, an 
FMP should contain management measures that result in as efficient a 
fishery as is practicable or desirable'' (50 CFR 600.330(b)). The 
preferred sector allocation alternative best reflects the historical 
participation by the commercial and recreational sectors, fairly and 
equitably distributes the needed reduction in catch between the 
sectors, and provides the greatest net economic benefits to the Nation. 
Therefore, Amendment 53 is consistent with the requirement to, where 
practicable, consider efficiency in the utilization of fishery 
resources.
    Comment 10: Amendment 53 violates NS 8 because it fails to identify 
the fishing communities that may be adversely affected by the reduction 
in allowable harvest, it benefits some fishing communities at the 
expense of other fishing communities, and it would maximize adverse 
economic impacts to fishing communities associated with the commercial 
sector.
    Response: NMFS disagrees that Amendment 53 is inconsistent with NS 
8, which requires that conservation and management measures take into 
account the importance of fishery resources to fishing communities in 
order to provide for the sustained participation of those communities, 
and to the extent practicable, minimize adverse economic impacts on 
those communities. Fishing communities that are associated with 
commercial and recreational fishing and can be identified as having 
some relationship with red grouper harvest are identified in section 
3.5 of Amendment 53 (pages 85-92). The communities associated with 
commercial fishing were identified using the regional quotient (RQ) for 
pounds of red grouper landed by county homeport. The RQ is the amount 
of red grouper landed within a particular geographical location out of 
all red grouper landed within the region. With respect to those 
communities associated with recreational fishing, NMFS does not have 
information about red grouper landed in a particular geographical 
location. Therefore, NMFS choose those communities because of their 
location and likely participation in the red grouper component of the 
reef fish fishery. Given the reduction in the total ACL and sector 
ACLs, most, if not all, communities are expected to be adversely 
affected, and because the allocation implemented through this final 
rule will result in a reduction in the commercial and recreational 
catch levels by approximately the same percentage, no fishing 
communities are benefiting at the expense of other fishing communities. 
Rather, as explained in response to Comment 6, this rule will provide 
the greatest overall benefit to the Nation with respect to both food 
production and recreational opportunities.
    Preferred Alternative 3 in Action 1 would likely maximize adverse 
economic impacts to fishing communities associated with the commercial 
sector because the expected reduction in commercial gross revenue is 
the largest among the considered alternatives. However, the differences 
in the gross revenue reductions between Alternatives 4 and 5 and 
Preferred Alternative 3 are relatively small, and thus so would be the 
differences in economic impacts on these communities. While 
Alternatives 2 and 6 in Action 1 would either benefit or result in no 
economic impacts to fishing communities associated with the commercial 
sector, these alternatives would have the greatest adverse economic 
impacts to fishing communities associated with the recreational sector. 
The preferred allocation alternative is expected to provide for 
sustained participation of all of the identified fishing communities 
and, to the extent practicable, minimize adverse economic impacts on 
those communities by taking into account the different objectives of 
the commercial and recreational sectors, and fairly and equitable 
distributing the required reduction in the total allowable harvest.
    Comment 11: Amendment 53 violates NS 9 because the revised 
allocation would increase bycatch and dead discards from the 
recreational sector.
    Response: NS 9 requires that conservation and management measures, 
``to the extent practicable: (1) Minimize bycatch; and (2) to the 
extent bycatch cannot be avoided, minimize the mortality of such 
bycatch.'' Conservation and management measures must also be consistent 
with all of the other national standards and maximization of net 
benefits to the Nation. As the NS Guidelines explain, several factors 
should be considered when determining consistency with NS 9. These 
factors include population

[[Page 25579]]

effects for the bycatch species; changes in the economic, social, or 
cultural value of fishing activities, and non-consumptive uses of 
fishery resources; changes in the distribution of benefits and costs; 
and social effects (50 CFR 600.305(d)(3)). As explained in response to 
Comment 6, the impacts to the red grouper stock are similar under all 
of the allocation alternatives considered by the Council because the 
alternative OFLs are based on a fixed level of fishing mortality. As 
explained in response to Comment 15, when the inputs into the stock 
assessment model include more recreational harvest than previously 
assumed, this leads to lower OFL and ABC estimates at equilibrium. 
Therefore, the new allocation allows for less total harvest than the 
current allocation. However, based on the results of SEDAR 61, a 
reduction in the total ACL is required under any of the allocation 
alternatives and the new allocation more evenly distributes the adverse 
economic and social effects that are expected to result from the 
required reduction. As explained in Section 4.1.3 of Amendment 53 
(pages 98-104), although Alternative 2 (retaining the current 
allocation) would increase net economic benefits in the commercial 
sector, it would also decrease net economic benefits in the 
recreational sector by a significantly larger amount, which would not 
only result in a decrease in net economic benefits to the Nation, but 
in fact the largest decrease of the alternatives considered. Thus, 
under Alternative 2 (as well as Alternative 6, which would retain the 
current commercial ACL), the adverse economic and social effects of the 
required reduction in the stock ACL would be borne entirely by the 
recreational sector. In contrast, the allocation implemented through 
this final rule will reduce net economic benefits for both sectors and 
results in the smallest reduction in net economic benefits to the 
Nation of the alternatives considered. Similarly, as discussed in 
Section 4.1.4 of Amendment 53 (pages 105-109), the recreational sector 
would experience negative social effects under Alternatives 2 or 6, 
while these alternatives would result in positive or neutral social 
effects for the commercial sector. The allocation implemented through 
this final rule will more evenly distribute the adverse economic and 
social effects that are expected to result from the required reduction 
in the total ACL.
    The commercial and recreational sectors have different economic, 
social, and cultural goals and objectives, and NMFS must consider and 
account for these differences when determining compliance with the 
national standards, including whether Amendment 53 minimizes bycatch to 
the extent practicable. Given the numerous factors that the Council 
must consider in selecting the appropriate allocation, Amendment 53 
does minimize bycatch and bycatch mortality to the extent practicable.
    Comment 12: The FMP does not include a standardized bycatch 
reporting methodology (SBRM) for the recreational sector as required by 
the Magnuson-Stevens Act.
    Response: NMFS and the Council recently completed a review of SBRMs 
for both Gulf and joint Gulf-South Atlantic FMPs. NMFS and the Council 
determined that the current SBRMs meet the purpose of section 
303(a)(11) of the Magnuson-Stevens Act, as described in 50 CFR 
600.1600, by specifying a SBRM to collect, record, and report bycatch 
data in a fishery that, in conjunction with other relevant sources of 
information, are used to assess the amount and type of bycatch 
occurring in the fishery and inform the development of conservation and 
management measures that, to the extent practicable, minimize bycatch 
and bycatch mortality. NMFS and the Council further determined that the 
SBRMs met the four requirements under 50 CFR 600.1610(a)(2). The 
methodology (1) addresses information about the characteristics of the 
bycatch occurring in the fishery; (2) is feasible from cost, technical, 
and operational perspectives; (3) is designed so that the uncertainty 
associated with the resulting bycatch data can be described, 
quantitatively or qualitatively; and (4) addresses how the data 
resulting from the methodology are used to assess the amount and type 
of bycatch occurring in the fishery. The review describes the SBRMs 
currently used by NMFS and the Gulf states for the recreational sector 
of the reef fish fishery (see https://www.fisheries.noaa.gov/southeast/bycatch/2022-standardized-bycatch-reduction-methodology-sbrm-five-year-review). The review recognized that all recreational data sources have 
a high level of uncertainty because self-reported data are not 
generally considered overly reliable and not all recreational fishermen 
are surveyed, and the Council recommended evaluation and coordination 
with state and Federal partners to improve bycatch data collection in 
the future.
    Comment 13: NMFS has not been forthcoming about how it converted 
the historical recreational landings estimates for red grouper used to 
develop sector allocation alternatives in Amendment 53. This violates 
Section 302(i)(6) of the Magnuson-Stevens Act, which requires in part 
that interested parties have a reasonable opportunity to respond to new 
data or information before the Council takes final action on 
conservation and management measures. In particular, the conversion 
factor the agency used to convert MRIP-FES landing estimates to MRIP-
CHTS landings observed during 2015-2017, cannot reliably convert MRFSS 
recreational landings estimates for red grouper over the base period of 
1986-2005.
    Response: The calibration methods used to convert recreational 
landings to MRIP-FES are described in Amendment 53 (see Section 1.1, 
subsection titled ``Red Grouper Recreational Data and Recalibration,'' 
pages 4-5). This description provides appropriate references and links 
to websites containing supporting documentation and peer review to 
assist the public looking for more information on how landing estimates 
from past years were converted to MRIP-FES. As noted previously, this 
peer review information has been publicly available since the reviews 
were completed in 2017 and 2018, and a publication titled ``Survey 
Design and Statistical Methods for Estimation of Recreational Fisheries 
Catch and Effort'' explains the different recreational fishing surveys 
and the time-series calibration methods and has been available since 
2018 (https://www.fisheries.noaa.gov/resource/document/survey-design-and-statistical-methods-estimation-recreational-fisheries-catch-and). 
There is also information specific to red grouper recreational landings 
provided in Section 2.4 of the SEDAR 61 Assessment Process Report 
(https://sedarweb.org/sedar-61; pages 17-24) that is referenced in the 
Amendment 53 subsection cited above.
    NMFS has been forthcoming and transparent about the conversion 
methodology, and summarizes the conversion methodology here. MRIP catch 
estimates are generated using information from two independent surveys: 
Numbers of angler fishing trips are estimated using the MRIP-FES and 
catch rates by species are estimated using the APAIS. Total catch for 
private boat and shore anglers is estimated as the product of both 
survey outputs. Separate and different calibration methods were 
developed to account for the extensive design changes made when the 
MRIP-FES replaced the previous MRIP-CHTS, including the data collection 
mode change from telephone to mail and the significant but less 
extensive improvements to the

[[Page 25580]]

APAIS design. A well-established mixed effects model small area 
estimation approach based on a 3-year benchmarking period (2015-2017) 
was developed to calibrate legacy MRIP-CHTS-based fishing effort 
estimates to account for the MRIP-CHTS to MRIP-FES design change 
effects, as well as deteriorating MRIP-CHTS response rates and survey 
frame coverage in later years. The calibration approach to address the 
APAIS design improvements employed a sample weight adjustment technique 
known as raking ratio estimation or iterative proportional fitting. 
This approach was selected in part because it did not require a bench 
marking period, which would not have been feasible given logistical and 
funding constraints associated with the APAIS.
    Comment 14: Amendment 53 does not explain how NMFS estimated the 
status quo recreational ACL in MRIP-FES units (MRIP-FES equivalent) 
shown in Table 2.1.1.
    Response: At the October 2019 Council meeting the SEFSC provided a 
presentation on SEDAR 61 (https://gulfcouncil.org/wp-content/uploads/B-7b-SEDAR61-Council_with-MRIP-conversions.pdf). In this presentation, 
2017 recreational landings estimates in both MRIP-CHTS and MRIP-FES 
were provided. The 2019 emergency rule and subsequent framework set the 
recreational ACL in MRIP-CHTS units based on 2017 landings, as approved 
by the Council (84 FR 22389; May 17, 2019 and 84 FR 52036; October 1, 
2019). These recreational landings were estimated to be 1.00 million lb 
(0.45 million kg) in MRIP-CHTS units and 2.10 million lb (0.95 million 
kg) in MRIP-FES units. The current recreational ACL is based on the 
estimated 2017 recreational landings of 1.00 million lb (0.45 million 
kg) in MRIP-CHTS units. Therefore, Table 2.1.1. also shows the MRIP-FES 
equivalent of 2.10 million lb (0.95 million kg) in MRIP-FES units.
    Comment 15: Under Preferred Alternative 3 for the allocation 
action, the commercial sector loses 1,190,000 lb (539,775 kg) of quota 
compared to maintaining the existing allocations under Alternative 2 
while the recreational sector only gains an increase of 550,000 lb 
(249,476 kg). This leaves the remaining 640,000 lb (290,299 kg) to 
cover increased dead discards from the recreational sector. In 
addition, it is not clear how the ABCs for the different allocations 
were derived and what methodology was used to estimate dead discards 
that went into these calculations.
    Response: The comment reflects an incorrect assumption that the 
640,000 lb (290,299 kg) difference noted in the comment is all dead 
discards from the recreational sector, as well as a misunderstanding of 
how projections are derived. Section 5 of the SEDAR 61 Stock Assessment 
Report (pages 147-151) and the presentation given by the SEFSC at the 
September 2019 SSC meeting (gulfcouncil.org/scientific-and-statistical-meetings/archive/, September 17-18, 2019 meeting, meeting materials 
part 1, Agenda item VIb) describe the standard projection approach and 
the model assumptions. The projections assume that fishing behavior 
will remain the same as the terminal year of the assessment (2017), 
including fleet-specific selectivity patterns, discard mortality, and 
retention. The stock dynamics (including numbers-at-age and biomass-at-
age) are projected forward in time 100 years under these assumed 
conditions, and stock status and catch advice is derived using 
equilibrium conditions (i.e., when the stock abundance levels off). The 
catch advice for each projection scenario considered in Action 1 (with 
the exception of Alternative 6), was specific to a set of assumptions, 
with the only difference being the allocation between the commercial 
and recreational sectors (presented to Council's SSC in January 2020; 
gulfcouncil.org/scientific-and-statistical-meetings/archive/, January 
9, 2020 meeting, meeting materials, agenda item 08). As shown in 
Figures 4.28 and 4.29 of the SEDAR 61 assessment, the recreational 
sector selects for smaller and younger fish compared to the commercial 
sector. Therefore, an increase in allocation to the recreational fleet 
results in more encounters and higher overall discards (of which 11.6 
percent will die). However, shifts in allocations also ultimately 
change the age-specific population structure of the stock. Harvest of 
larger numbers of smaller, younger fish result in a smaller overall 
population at equilibrium. Therefore, when the inputs into the 
assessment model include more recreational harvest than previously 
assumed, this leads to lower OFL and ABC estimates at equilibrium. The 
OFL and ABC for Alternative 6 were obtained after determining the 
allocation which would maintain the commercial ACL at 3.16 million lb 
(1.43 million kg) as described in Amendment 53 (page 17). After the 
allocation percentages were obtained for this scenario (68.7 percent 
commercial and 31.3 percent recreational), the SEDAR 61 assessment 
model was projected again to confirm that the allocation was maintained 
as expected, and used to obtain the corresponding OFL and ABC.
    Comment 16: Amendment 53 cites the SEFSC ACL Monitoring Datasets as 
the source of landings estimates used to calculate allocation 
percentages. These datasets are not directly available to the public, 
yet they are the basis for reallocation, and have errors and 
inconsistencies that call them into question. It is difficult to assess 
how NMFS determined which dataset is the best available science.
    Response: The ACL Monitoring Datasets are included in an internal 
data file that is produced by the SEFSC and shared with the NMFS 
Southeast Regional Office. This data file is not publicly available 
because the file contains confidential data, such as Southeast Region 
Headboat Survey estimates. Recreational data for the most recent SEDAR 
61 stock assessment (terminal year of 2017) were provided for the 
assessment in November 2018 and June 2019, and included recreational 
landings in weights according to SEFSC weight estimation methodology. 
NMFS would not expect these data to be a perfect match to the ACL 
Monitoring Datasets because of quality assurance and quality control 
checks and other improvements in methodology that have been made since 
SEDAR 61, such as revising the sample size for SEFSC weight estimation 
(Dettloff and Matter 2019). Starting in 2019, NMFS made substantial 
improvements to the automation and streamlining of recreational data 
sources as can be seen in standard recreational working papers in more 
recent stock assessments (e.g., http://sedarweb.org/sedar-68-scamp-data-process).
    The MRIP data in weights that are available on the public NMFS MRIP 
website are not the weight estimates that are used for stock 
assessments or ACL monitoring in the Southeast US. The SEFSC has a 
custom procedure for weight estimation (Dettloff and Matter 2019), 
which has also been described in detail at past public meetings, 
including the SSC workshop on calibrating MRIP-FES and MRIP CHTS 
(https://gulfcouncil.org/ssc/archive/; July 2020) and the April 2021 
Council meeting.
    Commercial landing estimates vary over time as estimates are 
revised to account for new information; however, they generally only 
vary by a few percentage points. Accounting for the exact cause for the 
differences in estimates would require a forensic analysis which would 
be overly time consuming and prohibitively expensive to NMFS. However, 
total landings from SEDAR 12, which were used for the current 
allocation, and the ACL

[[Page 25581]]

Monitoring Datasets are very similar, as shown in Table 2.1.2 of 
Amendment 53 (pages 19-20).
    Comment 17: Amendment 53 states the recreational ACL has only been 
exceeded in 2013; however, the revised MRIP-FES-based landings indicate 
that the recreational sector exceeded its catch limits for at least 2 
years in the base period, 2004 and 2005.
    Response: It is inappropriate to compare the MRIP-FES calibrated 
landings to past ACLs because those ACLs are in MRFSS or MRIP-CHTS 
units. Further, the recreational ACL was not established until 2009 in 
Amendment 30B (73 FR 68390; November 18, 2008). Prior to Amendment 30B, 
there was a recreational catch target of 1.25 million lb (0.57 million 
kg) put in place in 2004, and Table 2.1.2 in Amendment 53 (pages 19-20) 
shows that recreational landings in 2004 and 2005 did exceed that 
target (69 FR 33315; June 15, 2004). In response to that overage, the 
Council developed several management measures such as bag limit 
reductions, closed seasons, and the prohibition of a bag limit for for-
hire captain and crew to constrain the recreational harvest to its 
catch target. These measures were implemented by NMFS in 2006 (71 FR 
3018; January 19, 2006; 71 FR 34534; June 15, 2006 and 71 FR 66878; 
November 17, 2006) and are described in Section 1.4 of Amendment 53 
(pages 9-13).
    Comment 18: The red grouper fishery is improving because fishermen 
are encountering more small sized red grouper that are entering the 
fishery.
    Response: NMFS agrees that the red grouper stock appears to be 
improving. However, when the Council began work on Amendment 53 in 
October 2019, the results of SEDAR 61 indicated that red grouper catch 
levels need to be reduced. The Council took final action to submit 
Amendment 53 for review and implementation during its June 2021 
meeting. At that same meeting, the Council recognized that it would be 
informative to have the SSC review the results of an interim analysis 
conducted by the SEFSC that was expected to be completed in August 2021 
and incorporated more recent information. Therefore, the Council 
directed staff to begin work on a new framework action to modify red 
grouper catch limits as appropriate after the SSC's review on the 
interim analysis in August 2021. This is consistent with the NS 2 
Guidelines, which recognize that new information often becomes 
available between the amendment initial drafting and submission for 
final review, and suggests that that new information be incorporated 
where practicable, but note that it is not always necessary to start 
the amendment process over again. In this circumstance, the Council has 
already acted to address new information through the new framework 
action that would increase the catch limits implemented through this 
final rule. The Council took final action on this framework action at 
their October 2021 meeting.
    Comment 19: The Council failed to recalculate historical ACLs for 
red grouper as was done for other species, like king mackerel.
    Response: The Council was not required to request an analysis that 
recalculated the historical ACLs for red grouper. One Council member 
did make this request at the June 2021 Council meeting. However, this 
was the meeting at which the Council was reviewing the final draft of 
Amendment 53 and the Council determined that it was appropriate to 
submit the amendment for review and implementation without waiting for 
any additional analysis. NMFS has reviewed Amendment 53 as submitted by 
the Council and determined that it is consistent with the Magnuson-
Stevens Act and other applicable law.
    Comment 20: Why was the Florida Fish and Wildlife Conservation 
Commission's (FWC) Gulf Reef Fish Survey (GRFS) not used for the 
allocation decision.
    Response: The Council did look at GRFS landings at its June 2020 
meeting. Although discussed in Amendment 53, this survey was not used 
to revise the allocation because it was not provided for consideration 
in the SEDAR 61 assessment that generated the current OFL and ABC 
recommendations.
    Comment 21: The red grouper stock seems healthy and, therefore, 
this action is not needed.
    Response: SEDAR 61 was completed in September 2019 and used updated 
recreational catch and effort data from MRIP-APAIS and FES, which 
collectively estimated larger catch and effort data than previously 
calculated for the recreational sector. The assessment concluded that 
red grouper in the Gulf is not overfished and overfishing is not 
occurring, but the stock remained below the SSB at 30 percent of the 
SPR in 2017. After reviewing SEDAR 61 at its September 2019 meeting, 
the SSC decided to treat the 2018 red tide event as similar to the red 
tide event observed in 2005 for the purpose of OFL and ABC projections. 
These projections recommended by the SSC form the basis for the 
allocation alternatives in Amendment 53 and indicate that the stock, 
while not overfished, is below the long-term average target biomass 
level that results from harvesting at the MSY proxy.
    Comment 22: Amendment 53 arbitrarily applies an ACT buffer to the 
commercial sector but not the recreational sector, and the commercial 
sector is subject to an in-season ACT while the recreational sector has 
a post-season ACT.
    Response: This comment mistakenly refers to the commercial ACT 
(quota) as an AM for the commercial sector. The commercial AM is the 
Grouper/Tilefish IFQ program put in place through Amendment 29 to the 
FMP (74 FR 44732; August 31, 2009 and 75 FR 9116; March 1, 2010). As 
mentioned in the Background information in this final rule, the red 
grouper commercial ACT (quota) is the amount of fish distributed to IFQ 
shareholders at the beginning of the fishing year and is used to 
calculate gag multi-use allocation. Multi-use allocation allows 
fishermen to use a small portion of their allocation for one species 
(either red grouper or gag) to harvest another species (either gag or 
red grouper). Multi-use allocation is intended to reduce commercial 
discards and is derived at the beginning of each year by converting a 
portion of the pounds of allocation available for red grouper and gag 
to allocation that can be used for either species. The formula for gag 
and red grouper multiuse allocation shown below uses both the ACT 
(quota) and ACL.

[[Page 25582]]

[GRAPHIC] [TIFF OMITTED] TR02MY22.271

    The 9 percent buffer between the ACL and the ACT for the 
recreational sector is based on the application of the Council's ACL/
ACT Control Rule and is explained in Amendment 53 (pages 23-28). The 
purpose of this control rule is to account for management uncertainty. 
The recreational ACL for red grouper is used for an in-season AM that 
closes the recreational sector if NMFS determines that the ACL would be 
met or projected to be met during the fishing year. The ACT is used as 
a post-season AM. If the recreational ACL is exceeded in a fishing 
year, then the ACT is used to limit recreational harvest in the 
subsequent fishing year.
    Comment 23: Recreational fishermen may not understand that the 
proposed recreational catch limits, although an increase from the 
current catch levels, are really a reduction. They may mistakenly 
anticipate a longer red grouper season.
    Response: Amendment 53 includes a recreational season closure 
analysis and includes tables with estimated season lengths as well as 
the degree of uncertainty in the estimates indicated through 95 percent 
confidence intervals for Action 1 allocation alternatives (see Table 
2.1.4; page 21) and for each alternative combination between Actions 1 
and 2 (see Table 2.2.4; page 26). For the revised allocation and ACL 
implemented through this final rule, the predicted season closure date 
is December 19, but the 95 percent confidence limits suggest a season 
closure could occur as early as August 15 or not at all as a result of 
reaching the recreational ACL.
    Comment 24: The premise for Gulf red grouper sector reallocation is 
flawed and would reward recreational overharvesting because it would 
credit the recreational sector for revised annual landing estimates 
based on MRIP-FES landing estimates and ignore the fact that the 
recreational sector was likely exceeding its allocation during the base 
time period (1986-2005).
    Response: The current sector allocation is based in part on 
estimates of historical recreational landings that the best scientific 
information available now indicates are incorrect. These historical 
landings were updated to the MRIP-FES units in the SEDAR 61 stock 
assessment, the most recent red grouper stock assessment. That 
assessment is the basis for the catch level advice recommended by the 
Council's SSC. SEDAR 61 and the SSC's ABC recommendations require a 
reduction in the total ACL when compared to the status quo in MRIP-FES 
units. The revised allocation implemented through this final rule 
accounts for the new information about historical recreational landings 
by modifying the allocation percentages based on the same 1986-2005 
time series as the original allocation. Retaining the current 
allocation of 76 percent commercial and 24 percent recreational would 
result in a shift of the ACL to the commercial sector because MRIP-FES 
generally estimates higher recreational landings than the MRFSS, which 
was the survey used to generate the recreational landings used for the 
current allocation (Table 2.1.2; pages 19-20). This shift to the 
commercial sector is reflected in Alternative 2 of Action 1, which 
retains the current allocation percentage but updates catch limits 
based on the new assessment. When using the same MRIP-FES units for 
comparison, that alternative would increase the commercial ACL 
(approximately 18 percent) while significantly decreasing the 
recreational ACL (approximately 44 percent). In contrast, under the 
Council's preferred alternative, both the commercial and recreational 
ACLs would be reduced by approximately the same percentage 
(approximately 20 percent and 18 percent, respectively).
    Further, during the 1986-2004 period there was no commercial-
recreational allocation for red grouper. In 1990, NMFS implemented 
Amendment 1 to the FMP, which set a 10-year rebuilding plan for red 
grouper and established a framework procedure for setting allocations 
when setting the total allowable catch (TAC) (55 FR 2078; January 22, 
1990). The framework procedure stated that allocations should be based 
on historical percentages harvested by users among each sector during 
the base period of 1979-1987. Because commercial grouper landings were 
not identified by species until 1986, the ratio for all groupers based 
on historical percentages harvested by each sector during the base 
period of 1979-87 was 65 percent commercial and 35 percent 
recreational.
    As explained in Section 1.4 of Amendment 53 (pages 9-13), the 
commercial harvest of red grouper was first subject to a quota with the 
implementation of Amendment 1, but at that time red grouper was part of 
the shallow-water grouper complex, which had an overall commercial 
quota of 9.2 million lb (4.2 million kg). The commercial shallow-water 
grouper quota was subsequently increased for the 1991 and 1992 fishing 
years. In 1993, the shallow-water grouper TAC, which previously had 
only been specified as a commercial quota, was specified as a total 
harvest of 15.1 million lb (6.8 million kg) with 9.8 million lb (4.4 
million kg) allocated to the commercial quota. The remaining 5.3 
million lb (2.4 million kg) was available to the recreational sector. 
Recreational landings of red grouper in MRIP-FES units during that time 
did not exceed 4.3 million lb (2.0 million kg) (see Table 2.1.1 in 
Amendment 53; page 15). In 2004, with the final rule for Secretarial 
Amendment 1, NMFS put into place a rebuilding plan for red grouper that 
established a specific commercial quota and a recreational catch target 
for red grouper of 5.31 million lb (2.41 million kg) and 1.25 million 
lb (0.57 million kg), respectively (69 FR 33315; June 15, 2004). 
However, this was not considered an allocation, but instead a 
reflection of current fishing activities and a strong red grouper year-
class entering the fishery. NMFS predicted the ratio would change to a 
greater recreational harvest as the strong year-class moved out of the 
fishery through aging. As shown in

[[Page 25583]]

Table 2.1.2 of Amendment 53 (pages 19-20), both sectors exceeded their 
catch limits in 2004 and 2005.
    Comment 25: Amendment 53 does not reallocate to the recreational 
sector, but is a technical correction to the current allocation to 
account for historical landings that were underestimated by past 
recreational surveys.
    Response: The revised allocation does shift some of the allowable 
harvest from the commercial sector to the recreational sector. However, 
because SEDAR 61 incorporates the new MRIP-FES recreational landings 
estimates and the revised recreational catch limits will be in MRIP-FES 
units, maintaining the current allocation of 76 percent commercial and 
24 percent recreational would result in a reallocation to the 
commercial sector. This would increase the commercial ACL 
(approximately 18 percent) and decrease the recreational ACL in MRIP-
FES units (approximately 44 percent). The revised allocation 
implemented through this final rule incorporates the change in 
recreational landings estimates over the same period used to calculate 
the current allocation. This results in an allocation of approximately 
60 percent commercial and 40 percent recreational, and reduction in 
both the commercial and MRIP-FES adjusted recreational ACLs by 
approximately the same percentage.
    Comment 26: The proposed sector allocation is not fair because the 
Council is unbalanced and biased toward the recreational sector, and 
this bias is evident in the revised allocation selected by the Council.
    Response: Council members are trustees of the Nation's fishery 
resources and each Council member must take an oath of office in which 
they ``promise to conserve and manage the living marine resources of 
the United States of America by carrying out the business of the 
Council for the greatest overall benefit of the Nation'' (50 CFR 
600.220). Council members must also adhere to high standards of ethical 
conduct (50 CFR 600.225). Therefore, NMFS expects Council members take 
to make decisions that are best for the fishery resources as a whole 
versus for a particular sector. Further, regardless of who sits on the 
Council, NMFS must determine whether Amendment 53 is consistent with 
the Magnuson-Stevens Act and other applicable law, and NMFS has 
determined that the revised allocation is fair. As explained in Comment 
24, the Council selected the preferred allocation alternative because 
it best represents the historical landings for the years originally 
used to establish the allocation while also accounting for the change 
in the estimation of recreational harvest from MRFSS data to MRIP-FES. 
In addition, the preferred alternative more evenly distributes the 
reduction in the total ACL required by the results of SEDAR 61 and the 
ABC recommendations from the SSC, reducing the commercial and 
recreational ACLs by similar percentages (approximately 20 percent and 
18 percent, respectively).
    Comment 27: The revised allocation takes commercial quota from 
commercial fishermen without compensation.
    Response: Neither the commercial sector, nor any individual person 
has a vested property interest in the commercial sector's red grouper 
ACT (commercial quota). Therefore, no person or group of persons is 
entitled to receive compensation as part of the revised allocation.
    Comment 28: Commercial fishing businesses that buy red grouper 
annual allocation will be hurt by Amendment 53 because the supply of 
annual allocation is being reduced, which will increase the price of 
annual allocation. Some individuals reported they had seen a two- to 
three-fold increase in the price of annual allocation. Different 
commenters noted that either this effect was not discussed in the 
economic analysis of Amendment 53 or that this effect was discussed, 
but projections of the expected increase were not provided.
    Response: The economic analysis in Amendment 53 does indicate the 
price of annual allocation for red grouper is expected to increase 
because of the reduced commercial quota. However, the magnitude of that 
increase was not projected because there are effectively only eight 
data points representing different average annual allocation prices at 
different commercial quota levels that could be used as a basis for a 
projection, which is insufficient to generate a statistically valid 
estimate. Further, the revised commercial quota of 2.40 million lb 
(1.09 million kg) is outside the bounds of the existing data points, 
which would further decrease the validity of any estimate that might be 
generated based on the existing data. New annual allocation price data 
for red grouper do indicate that the price has increased since the 
Council decided to submit Amendment 53 for review and implementation. 
However, this information was not available to the Council prior to its 
decision. In addition, while an increase in the annual allocation price 
would be expected to increase costs and decrease profits for commercial 
fishing businesses that buy red grouper annual allocation, it would 
simultaneously and equivalently benefit those businesses that sell red 
grouper annual allocation by increasing their revenues and profits. The 
opposite effects occurred when the commercial red grouper quota was 
increased significantly from 5.72 to 7.78 million lb (2.59 to 3.53 
million kg) in late 2016 (81 FR 70365; October 12, 2016). Changes in 
the annual allocation price only result in the transfer of economic 
benefits and costs between buyers and sellers and therefore do not 
affect the estimate of net economic benefits to the Nation.
    Comment 29: Commercial fishing operations targeting red grouper 
will not be able to mitigate the adverse economic effects from the 
implementation of Amendment 53 because they cannot switch to other 
species.
    Response: As discussed on pages 55-63 of Amendment 53, the 
businesses that possess Gulf red grouper shares and annual allocation 
also possess shares and annual allocation for other species or species 
groups managed by IFQs in the Gulf, most notably for red snapper, which 
makes up the largest part of their share and annual allocation 
portfolios. Further, most of these businesses also have a Federal Gulf 
of Mexico reef fish permit that can be used to harvest non-IFQ reef 
fish species, and many also possess permits for non-reef fish species. 
The fact that businesses engaged in the commercial harvest of Gulf red 
grouper also harvest other species is illustrated in Table 3.4.1.20 of 
Amendment 53 (page 64). Further, any businesses that do not possess 
shares and annual allocation for other IFQ species have the option to 
purchase them through the markets for shares and allocation, which is a 
fundamental purpose of the market-based IFQ programs the Council 
implemented.
    Comment 30: Amendment 53 did not provide estimates of the economic 
impacts (e.g., employment, income, value-added, and output) for the 
Gulf red grouper commercial sector and did not demonstrate that the 
reduction in the commercial sector's economic impacts exceeds the 
reductions in the recreational sector's economic impacts.
    Response: The economic impact estimates referred to in the comment 
are provided in the discussion of the commercial sector's economic 
impacts on pages 72-74 of Amendment 53 based on average values from 
2014-2018. Some of the comments received also provided estimates of the 
commercial sector's economic impacts based on more recent data provided 
by industry for 2021, but did not provide 2021 economic impact 
estimates for the recreational sector, and then compared those to the 
average economic impacts

[[Page 25584]]

for the recreational sector from 2014-2018 provided in the amendment. 
The NS 2 Guidelines require that FMPs take into account the best 
scientific information available at the time of preparation (50 CFR 
600.315(e)). The Guidelines recognize that new information may become 
available between initial drafting of an FMP and its submission for 
final review, and suggest incorporating that new information as 
practicable; but that it is unnecessary to start the FMP process over 
again, unless the information indicates that drastic changes have 
occurred in the fishery that might require revision of the management 
objectives or measures. Here, the 2021 estimates were not available 
before the Council took final action on Amendment 53, and comparing 
economic impacts between the sectors from different time periods is not 
appropriate. The reduction in economic impacts in the commercial sector 
due to the actions in Amendment 53 are provided on page 156 of 
Amendment 53, while the reduction in economic impacts in the 
recreational sector is discussed on pages 157-158 (based on whether the 
recreational sector is managed to its ACL or ACT). These estimates do 
show that the reduction in economic impacts in the commercial sector 
are higher than in the recreational sector.
    Comment 31: The analysis in Amendment 53 underestimated the 
reduction in net economic benefits to the commercial sector because 
indirect and induced economic impacts estimated by an economic impacts 
model such as IMPLAN were not included in that estimate.
    Response: Indirect and induced economic impacts (i.e., employment, 
income, output, and value-added) to a particular state or the Nation 
and changes to those impacts as estimated by an economic impacts model 
do not measure net economic benefits. The commenters confuse the 
results from an economic impact analysis with net economic benefits. 
Economic impact models are intended to describe the flow of resources 
through an economy and are not estimates of welfare as reflected in the 
calculation of net economic benefits. Net economic benefits are 
measured by the combination of consumer and producer surplus in each of 
the affected sectors. Therefore, indirect and induced impacts are not 
germane to the determination of net economic benefits to the Nation and 
thus are not considered in the benefit-cost analysis.
    Comment 32: The analysis underestimated the reduction in gross 
revenue to the commercial sector. Specifically, the commercial sector 
would lose 1.19 million lb (0.54 million kg) in red grouper landings 
and each pound lost would have an ex-vessel price of $4.83/lb ($10.65/
kg).
    Response: The loss in commercial landings is actually 600,000 lb 
(272,155 kg) when comparing the status quo commercial ACT (quota) of 
3.00 million lb (1.36 million kg) to the commercial ACT (quota) of 2.40 
million lb (1.09 million kg) implemented through this final rule. The 
quota actually received and available to the commercial sector for 
landing purposes is the ACT, not the ACL. A sector cannot lose what is 
never received. In addition, the commenters compared the commercial ACL 
under Preferred Alternative 3 for Action 1 to the commercial ACL under 
Alternative 2 rather than the status quo commercial ACL, which is not 
the appropriate comparison. Further, the analysis also indicates that 
the ex-vessel price is expected to increase by $0.51/lb ($1.14/kg) from 
$4.83/lb ($10.65/kg) to $5.34/lb ($11.77/kg) because of the decrease in 
landings, thereby partially mitigating the loss in landings.
    Comment 33: The expected increase in the ex-vessel price for red 
grouper will be passed along to consumers, causing economic harm to 
those consumers.
    Response: This comment assumes that relative supply and demand 
conditions are the same at the ex-vessel and retail levels, which is 
unlikely. Although it is possible that some of the ex-vessel price 
increase may be passed along to consumers, it is highly unlikely that 
all or even most of it would be passed along to consumers because the 
number of good substitutes available to buyers increases as product 
moves further up the distribution chain. For example, if Gulf red 
grouper has become relatively more expensive by the time it reaches the 
retail level, many consumers will simply switch to other substitute 
products as they would have become relatively cheaper compared to Gulf 
red grouper (e.g., other Gulf groupers, red grouper and other groupers 
from the Atlantic, various snapper species from the Gulf and Atlantic, 
imports of grouper or snapper, other types of seafood and protein 
sources, etc.). Several other comments from buyers up the distribution 
chain indicate these substitution effects are likely. As a result of 
these substitution effects, NMFS expects a fairly strong demand 
response for Gulf red grouper at the retail level, thereby keeping the 
price from increasing much if at all.
    Comment 34: The economic analysis in Amendment 53 either did not 
provide an estimate of the expected loss in consumer surplus to the 
commercial sector, the loss in consumer surplus was underestimated, or 
the approach used to estimate the loss in consumer surplus was invalid.
    Response: Amendment 53 includes an analysis of the expected change 
in consumer surplus to the commercial sector in the discussion of 
direct and indirect economic effects on pages 98-99. This analysis is 
based on an Inverse Almost Ideal Demand System model provided by 
Keithly and Tabarestani (2018) that was included in the 5-year review 
of the grouper-tilefish IFQ program. The Council's SSC reviewed this 
study at their March 2017 meeting and raised no concerns regarding its 
validity. Inverse demand models that make use of ex-vessel rather than 
retail level data are often used when retail level data are not 
available, as was the case in this instance. These models generate 
estimates of either demand elasticity or flexibility, which can then be 
used to estimate expected changes in ex-vessel price and thus changes 
in consumer surplus when landings are expected to change. The use of 
indirect demand models is not novel (see https://spo.nmfs.noaa.gov/sites/default/files/TM111.pdf), and in fact their use has been subject 
to peer review in other cases (see https://www.mafmc.org/s/scup_allocation_review_panel_report_FINAL.pdf). Further, as noted in 
the amendment, the estimated loss in consumer surplus should be 
considered a maximum estimate because the flexibility estimate is not 
compensated for income. In fact, because ex-vessel level data were used 
rather than retail level data and demand flexibility would likely be 
less at the retail level than at the ex-vessel level for reasons noted 
above, NMFS' estimate of the loss in consumer surplus is likely an 
overestimate of the actual change in consumer surplus. But it is still 
the best estimate given available data.
    Comment 35: The economic analysis in Amendment 53 ignored changes 
in producer surplus in the commercial sector beyond the harvesting 
sector, or available estimates on mark-ups should have been used to 
generate such estimates.
    Response: These issues are addressed in the description of the 
economic environment on page 70 of Amendment 53. On average, purchases 
of Gulf red grouper represented approximately 17 percent of all seafood 
purchases by Gulf red grouper dealers between 2014 and 2018. While this 
suggests these dealers have some dependency on purchases of Gulf red 
grouper, it is far less than the percentage of revenue that Gulf red

[[Page 25585]]

grouper represents for commercial vessels (46 percent). In addition, 
these dealers' dependency on Gulf red grouper purchases steadily 
declined from 2014 through 2018, as they accounted for 22 percent of 
their total seafood purchases in 2014 but only 12 percent of their 
total seafood purchases in 2018. Also, the ability of federally 
permitted seafood dealers to change which species they purchase is 
greater than commercial vessels' ability to change which species they 
harvest. Unlike commercial vessel permits, dealer permits do not 
restrict which species dealers can purchase. Further, although Keithly 
and Wang (2018) estimate the mark-ups between the ex-vessel price and 
dealer sales price for Gulf red grouper and certain other grouper and 
tilefish species, those estimates are insufficient to estimate producer 
surplus for Gulf red grouper dealers, or changes to producer surplus as 
a result of regulatory changes. This is in part because costs other 
than the raw fish costs (which are equivalent to the ex-vessel value) 
are not taken into account. NMFS does not have estimates of those other 
costs for Gulf red grouper dealers, or seafood dealers more broadly, 
and thus does not have estimates of net cash flow or net revenue from 
operations for Gulf red grouper dealers comparable to those in the 
commercial harvesting sector. Thus, while it is likely that the harvest 
of Gulf red grouper generates some producer surplus for Gulf red 
grouper dealers, NMFS does not possess the data to estimate that 
producer surplus. Further, because these dealers have the ability to 
switch to purchasing other species, changes to those values as a result 
of the management measures considered in Amendment 53 are likely to be 
relatively small. Similarly, any additional producer surplus generated 
from Gulf red grouper sales further up the distribution chain to 
wholesalers/distributors, grocers, and restaurants is likely minimal, 
given the vast number of seafood and other products they sell and their 
even greater ability to shift to purchasing other substitute products 
should the availability of Gulf red grouper decrease and/or its price 
increase.
    Comment 36: The harvest of recreationally harvested fish does not 
generate net economic benefits to the Nation or positive economic 
impacts, and retaining the current allocation in Alternative 2 of 
Action 1 would not have any discernible adverse economic effects on 
recreational anglers or for-hire operations.
    Response: NMFS disagrees with these comments. The description of 
the economic environment explains how the recreational sector generates 
economic value (net economic benefits) to the Nation on pp. 82-83, 
while the discussion on pp. 83-85 illustrates the positive economic 
impacts generated by the recreational sector. Further, the analysis on 
pages 101-104 of Amendment 53 demonstrates the adverse effects that 
retaining the current sector allocation would have on recreational 
anglers and for-hire operations.
    Comment 37: The revised sector allocation increases economic value 
(net economic benefits) to the recreational sector relative to the 
status quo, or leads to a disproportionately higher reduction in net 
economic benefits to the commercial sector relative to the recreational 
sector.
    Response: Tables 4.1.3.3 (page 101) and 4.1.3.7 (page 104) in 
Amendment 53 demonstrate that net economic benefits to the commercial 
sector are expected to decrease by about 9.1 percent while net economic 
benefits to the recreational sector are expected to decrease by about 
15.5 percent, assuming recreational harvest is limited to its ACL. The 
percentage reduction to the recreational sector would be even higher if 
recreational harvest is limited to the ACT. Thus, the net economic 
benefits to the recreational sector are expected to be reduced under 
the revised sector allocation relative to the status quo and the 
reduction to the recreational sector is proportionally higher than in 
the commercial sector.
    Comment 38: The willingness to pay estimate of $110 per fish (2019 
dollars) for Gulf red grouper harvested by recreational anglers used to 
generate the economic value (consumer surplus) estimates in Amendment 
53 does not represent the best scientific information available and, 
more generally, the use of stated preference models to generate 
willingness to pay estimates for recreationally harvested fish is not 
scientifically valid. Therefore, use of that estimate is inconsistent 
with NS 2 concerning scientific information. Further, the willingness 
to pay estimate used in Amendment 53 is too high, which in turn leads 
to a significant overestimate of the net economic benefits resulting 
from recreational harvest and invalid estimates of the net economic 
benefits associated with each sector allocation alternative considered 
in Amendment 53.
    Response: The inflation-adjusted willingness to pay estimate in 
Amendment 53 comes from a peer-reviewed article published in the North 
American Journal of Fisheries Management (Carter and Liese 2012). This 
estimate is specific to grouper and the study included species that 
recreational anglers would consider good substitutes for Gulf red 
grouper. In contrast, the Environmental Protection Agency's (EPA) 
estimates of economic value per recreationally harvested fish 
referenced in the comments are from very old studies. Specifically, 
although the comments suggest the EPA estimates are from 2014 (https://www.epa.gov/sites/default/files/2015-05/documents/cooling-water_phase-4_benefits_2014.pdf) and thus more recent than the estimate used in the 
amendment, the EPA's meta-analysis was actually conducted in 2006 
(https://www.epa.gov/sites/default/files/2015-04/documents/cooling-water_phase-3_regional-benefits_2006.pdf). Further, a review of the 
2006 meta-analysis reveals that it was based on 48 studies that were 
published between 1982 and 2004 founded on survey data collected 
between 1977 and 2001. In addition, the meta-analysis included 21 
studies based on random utility models, 11 based on travel cost models, 
and 20 studies that were based on stated preference models. Also, only 
two studies in the EPA analysis were specific to the Gulf, and one of 
those was limited to ``small game'' species that are not comparable to 
red grouper. As the EPA estimates are not comparable to grouper, they 
are not appropriate for use in Amendment 53. The estimate from Carter 
and Liese (2012) is specific to grouper and also more recent than the 
EPA estimates.
    Some of these comments also suggest that use of the estimate from 
Carter and Liese (2012) in Amendment 53 was inconsistent with NS 2 
because the uncertainty around the point estimate of $110 per 
recreationally harvested fish was not specifically provided in 
Amendment 53. Carter and Liese (2012) do provide an estimate of the 
confidence interval (i.e., 8 percent) reflecting the uncertainty around 
the point estimate. Given this estimate of uncertainty, the lower and 
upper bounds for the point estimate are $101.20 and $118.80, 
respectively. Importantly, use of the lower and upper bounds would not 
affect the relative estimates of net economic benefits across the 
alternatives considered under Action 1 in Amendment 53. Some of these 
comments also reference more recent analyses in Carter, Liese, and 
Lovell (2022) and Carter, Lovell and Liese (2020), to support the 
assertion that the estimate from 2012 Carter and Liese study is too 
high. Both of the more recent papers look at differences in economic 
value associated with different bag limits (i.e., option prices).

[[Page 25586]]

However, the 2022 paper was not available at the time the analysis for 
Amendment 53 was conducted. The 2020 paper provides option prices for 
different recreational bag limits rather than an economic value per 
fish given a change in expected harvest. The analysis in Amendment 53 
requires an estimate of the latter. Therefore, consistent with NS 2, 
estimates of consumer surplus and expected changes to consumer surplus 
in the recreational sector under the different alternatives are based 
on the best available science at the time the analysis for Amendment 53 
was conducted.
    Comment 39: The economic analysis of net economic benefits should 
have included differences in the carbon footprints and resulting costs 
associated with commercially harvested fish versus recreationally 
harvested fish. A ``back of the envelope'' approach for how to look at 
those differences was provided.
    Response: No guidance is currently available to Federal agencies 
regarding a preferred or acceptable approach to look at the issue of 
carbon footprints in the context of fisheries. Further, the commenter's 
suggested approach has not undergone any type of review and NMFS has 
concerns with the suggested approach. For example, it is inappropriate 
to compare fuel use for commercial and recreational sectors because the 
objective functions for commercial and recreational fishing are 
completely different. Commercial fuel use is a cost to vessel owners so 
vessel operators have an incentive to minimize fuel consumption to 
maximize their share of the profit. Commercial fuel use should be based 
on time rather than landings; otherwise, high catch per unit (CPUE) 
fisheries will appear to be more fuel efficient than lower CPUE 
fisheries. Recreational trips maximize utility from the experience, and 
the motivation for recreational fishing is not just about catching or 
keeping fish. Further, recreationally harvested fish that are caught, 
but not landed, are not considered in the estimates. The commenter's 
estimate of fuel expense comes from studies from 2005 and 2009, and 
thus is based on outdated data for this purpose, particularly as more 
recent and more consistent information is reported in Lovell et al. 
(2020). Moreover, applying a recent fuel price to back-calculate fuel 
consumption from data collected in a particular year is incorrect 
because fuel consumption by either commercial or recreational fishermen 
is not independent of the price of fuel. Recreational trip expenditures 
depend on fuel prices at the time the expense is incurred. Thus, the 
fuel price in the year the data were collected is necessary. Observer 
data from commercial fisheries show that trip duration goes down as 
fuel prices increase. Expecting that recreational trip duration and the 
number of trips would also respond to changes in the fuel price is 
reasonable.
    Comment 40: The economic analysis of net economic benefits in 
Amendment 53 did not follow the same approach as in Amendment 28 to the 
FMP, and the estimated loss in producer surplus to the commercial 
harvesting sector was based on an unpublished paper.
    Response: As explained in the NS 2 Guidelines, an ``FMP must take 
into account the best scientific information available at the time of 
preparation'' (50 CFR 600.315(e)(1)). As new information becomes 
available, that will often lead to modifications in the analytical 
approach. For example, when the Council was preparing Amendment 28 in 
2015, NMFS did not have direct estimates of net cash flow or net 
operating revenue that could be used to more directly and accurately 
estimate changes in producer surplus and profit in the commercial 
harvesting sector. Therefore, Amendment 28 used the average annual 
allocation price as a proxy for these values. Where appropriate and 
necessary, Amendment 53 continues to explain that ``economic theory 
suggests that annual allocation (quota) prices should reflect expected 
annual economic profits, which allows economic profits to be estimated 
indirectly. It is always preferable to use direct estimates when they 
are available rather than proxies. According to information provided on 
pages 65-68 of Amendment 53, estimates of net cash flow and net 
operating revenue in the commercial harvesting sector were available 
from Overstreet and Liese (2018b), and therefore were used in the 
economic analysis of Amendment 53. NMFS had estimates of trip net cash 
flow and trip net revenue for for-hire trips that were used in 
Amendment 53 to estimate expected changes in producer surplus and 
profits in the for-hire sector, but such information was unavailable 
when Amendment 28 was being considered.
    Comment 41: The general approach taken in the analysis of net 
economic benefits in Amendment 53 is invalid for the same reasons the 
approach taken in Amendment 28 was invalid, or it is invalid because 
the Council's SSC did not review it.
    Response: Absent a request from the Council, the SSC is not 
required to review economic or other specific analyses in an FMP 
amendment. With respect the analysis in Amendment 53, these comments 
essentially assert that net economic benefits or changes to net 
economic benefits cannot be estimated because harvest privileges have 
not been assigned in the recreational sector as they have been in the 
commercial sector. This assertion is based on a misunderstanding of 
statements in Amendment 28 as well as in the referenced literature. 
Specifically, because fishing privileges have not been assigned in the 
recreational sector, economic theory does suggest that it is not 
possible to maximize net economic benefits to the Nation because 
resources are not being efficiently allocated in that sector. As a 
result, it is not possible to maximize net economic benefits to the 
Nation from the fishery as a whole regardless of which sector 
allocation is selected. However, the economic analysis in Amendment 53 
does not suggest that the selected sector allocation maximizes net 
economic benefits to the Nation, or what sector allocation would 
maximize net economic benefits to the Nation. It only demonstrates that 
the selected sector allocation in conjunction with the resulting ACLs 
is expected to generate relatively greater net economic benefits to the 
Nation compared to the other alternatives that were considered. 
Therefore, the economic analysis in Amendment 53 does not conflict with 
the analysis in Amendment 28 or the referenced literature, and NMFS 
believes it is not invalid as suggested by the commenter.
    Comment 42: Amendment 53 could lead to a significant increase in 
imports of grouper because of the reduction in commercial harvest of 
Gulf red grouper.
    Response: It is possible that imports of grouper and snapper 
products that directly compete with Gulf red grouper could increase in 
response to the decrease in Gulf red grouper landings. However, given 
that landings are expected to decrease by 600,000 lb (272,155 kg), even 
if all of that production was replaced by imports, that would only lead 
to about a 1 percent increase in imports, since total imports of 
grouper and snapper were about 62.1 million lb (28.2 million kg) in 
2018 (see page 71 of Amendment 53).
    Comment 43: The Initial Regulatory Flexibility Act is faulty 
because it does not address adverse effects on restaurants and seafood 
dealers, and all such businesses should be considered small businesses.
    Response: The comment does not provide any information to support 
the conclusion that all seafood dealers and restaurants are small under 
the Small Business Administration's definitions for businesses in those 
industries. Further, the Regulatory Flexibility Act

[[Page 25587]]

requires an analysis of effects on entities that are expected to be 
directly regulated by the rule. The rule for Amendment 53 would 
directly regulate commercial fishing businesses that possess red 
grouper shares and for-hire fishing businesses that target red grouper, 
not seafood dealers or restaurants. Potential indirect economic effects 
on dealers are discussed on page 70 and in section 4.2.3 of Amendment 
53 (pages 111-123).

Classification

    Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS 
Assistant Administrator has determined that this final rule is 
consistent with Amendment 53, the FMP, other provisions of 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 legal basis for this final rule. No duplicative, overlapping, or 
conflicting Federal rules have been identified.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a 
summary of the significant issues raised by the public comments in 
response to the IRFA, NMFS' responses to those comments, and a summary 
of the analyses completed to support the action. NMFS' responses to 
public comments regarding the IRFA and the Executive Order 12866 
analysis are in the SUMMARY section of the preamble. A copy of the full 
analysis is available from NMFS (see ADDRESSES). A summary of the FRFA 
follows.
    The objective of this final rule is to use the best scientific 
information available to establish Gulf red grouper sector allocations, 
ACLs, and ACTs, thereby ensuring that the sector ACLs accurately 
reflect the commercial and recreational sectors' historical 
participation and that the recreational ACL is consistent with data 
used to monitor recreational landings and trigger AMs. All monetary 
estimates in the following analysis are in 2019 dollars.
    Amendment 53 revises the sector allocations of the total ACL for 
Gulf red grouper from 76 percent for the commercial sector and 24 
percent for the recreational sector to 59.3 percent for the commercial 
sector and 40.7 percent for the recreational sector. The current OFL, 
ABC, and total ACL are 14.16 million lb (6.42 million kg), 13.92 
million lb (6.31 million kg), and 4.16 million lb (1.89 million kg), 
respectively. The recreational portion of these values are based on 
MRIP-CHTS data. Amendment 53 changes the OFL and ABC to 4.66 million lb 
(2.11 million kg) and 4.26 million lb (1.93 million kg), consistent 
with the results of the most recent stock assessment and the 
recommendations of the Council's SSC, and sets the total ACL equal to 
the ABC of 4.26 million lb (1.93 million kg). The recreational portion 
of these values are based on MRIP-FES data. Applying the new sector 
allocations reduces the commercial ACL from 3.16 million lb (1.43 
million kg) to 2.53 million lb (1.15 million kg). The new sector 
allocations also reduces the recreational ACL from 2.10 million lb 
(0.95 million kg) in MRIP-FES units or 1.00 million lb (0.45 million 
kg) in MRIP-CHTS units, to 1.73 million lb (0.78 million kg) in MRIP-
FES units. This final rule and Amendment 53 retain the current 5 
percent buffer between the commercial ACL and ACT (quota), which 
results in a reduction of the commercial ACT (quota) from 3.00 million 
lb (1.36 million kg) to 2.40 million lb (1.09 million kg). However, it 
increases the buffer between the recreational ACL and ACT from 8 
percent to 9 percent, and thereby reduces the recreational ACT from 
1.59 million lb (0.72 million kg) to 1.57 million lb (0.71 million kg), 
given the reduction in the recreational ACL. As a result, this final 
rule is expected to directly regulate commercial fishing businesses 
that possess Gulf red grouper shares in the grouper-tilefish IFQ 
program and for-hire fishing businesses that target red grouper.
    The commercial red grouper quota is allocated annually based on the 
percentage of red grouper shares in each IFQ account (e.g., if an 
account possesses 1 percent of the red grouper shares and the 
commercial quota is 1.00 million lb (0.45 million kg), then that 
account would receive 10,000 lb (4,536 kg) of commercial red grouper 
quota). Although it is common for a single IFQ account with red grouper 
shares to be held by a single business, some businesses have multiple 
IFQ accounts with red grouper shares. As of February 19, 2020, 495 IFQ 
accounts held red grouper shares. These accounts and red grouper shares 
were owned by 436 businesses. Thus, NMFS assumes this final rule 
directly regulates 436 commercial fishing businesses.
    A valid Federal charter vessel/headboat (for-hire) permit for Gulf 
reef fish is required to legally harvest red grouper in the Gulf. NMFS 
does not possess complete ownership data regarding for-hire businesses 
that hold these permits, and thus potentially harvest red grouper. 
Therefore, it is not currently feasible to accurately determine 
affiliations between vessels and the businesses that own them. As a 
result, for purposes of this analysis, NMFS assumes each for-hire 
vessel is independently owned by a single business, which is likely to 
result in an overestimate of the actual number of for-hire fishing 
businesses directly regulated by this final rule.
    NMFS also does not have data indicating how many for-hire vessels 
actually harvest Gulf red grouper in a given year. However, in 2019, 
there were 1,277 vessels with valid Federal charter vessel/headboat 
permits for Gulf reef fish. Of these 1,277 vessels, 90 vessels are used 
primarily for commercial fishing purposes and thus are not considered 
for-hire fishing businesses in this analysis. Further, Gulf red grouper 
is only targeted and almost entirely harvested in waters off the west 
coast of Florida. Of the 1,277 vessels with valid Federal charter 
vessel/headboat permits for Gulf reef fish, 799 were homeported in 
Florida. Of these permitted vessels, 60 are primarily used for 
commercial fishing rather than for-hire fishing purposes and thus are 
not considered for-hire fishing businesses. In addition, 48 of these 
permitted vessels are considered headboats. Compared to charter 
vessels, headboats take a larger group of anglers to harvest a diverse 
range of species on a trip, and therefore do not typically target a 
particular species. Therefore, NMFS assumes that no headboats would be 
directly affected as a result of this final rule. However, charter 
vessels often target red grouper. Of the 799 vessels with valid Federal 
charter vessel/headboat permits for Gulf reef fish that are homeported 
in Florida, 691 vessels are charter vessels. A recent study reported 
that 76 percent of charter vessels with valid Federal charter vessel/
headboat permits for Gulf reef fish were active in the Gulf during 2017 
(i.e., 24 percent were not fishing). A charter vessel would only be 
directly affected by this final rule if it is fishing. Given this 
information, our best estimate of the number of charter vessels that 
are likely to harvest Gulf red grouper in a given year is 525, and thus 
this final rule is estimated to directly affect 525 for-hire fishing 
businesses.
    For RFA purposes, NMFS has established a small business size 
standard for businesses, including their affiliates, whose primary 
industry is commercial fishing (50 CFR 200.2). A business primarily 
involved in the commercial 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 its combined 
annual

[[Page 25588]]

receipts (revenue) are not in excess of $11 million for all of its 
affiliated operations worldwide. NMFS does not collect revenue data 
specific to commercial fishing businesses that have IFQ accounts; 
rather, revenue data are collected for commercial fishing vessels in 
general. It is not possible to assign revenues earned by commercial 
fishing vessels back to specific IFQ accounts and the businesses that 
possess them because quota is often transferred across many IFQ 
accounts before it is used by a vessel for harvesting purposes, and 
specific units of quota cannot be tracked. However, from 2014 through 
2018, the maximum annual gross revenue earned by a single vessel was 
about $2.39 million, which occurred in 2015. The average gross revenue 
per vessel was about $143,000 in that year. By 2018, the maximum and 
average gross revenue per vessel had decreased to about $1.04 million 
and $96,000, respectively. Based on this information, all commercial 
fishing businesses directly regulated by this final rule are determined 
to be small entities for the purpose of this analysis.
    For other industries, the Small Business Administration has 
established size standards for all major industry sectors in the U.S., 
including for-hire businesses (NAICS code 487210). A business primarily 
involved in for-hire fishing 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 annual receipts (revenue) 
not in excess of $8 million for all its affiliated operations 
worldwide. The maximum annual gross revenue for a single headboat in 
the Gulf was about $1.38 million in 2017. On average, annual gross 
revenue for headboats in the Gulf is about three times greater than 
annual gross revenue for charter vessels, reflecting the fact that 
businesses that own charter vessels are typically smaller than 
businesses that own headboats. Based on this information, all for-hire 
fishing businesses directly regulated by this final rule are determined 
to be small businesses for the purpose of this analysis.
    If implemented, NMFS expects this final rule to directly regulate 
436 of the 532 businesses with IFQ accounts, or approximately 82 
percent of those commercial fishing businesses. Further, NMFS expects 
this final rule to directly regulate 525 of the 1,187 for-hire fishing 
businesses with valid Federal charter vessel/headboat permits in the 
Gulf reef fish fishery, or approximately 44 percent of those for-hire 
fishing businesses. NMFS has determined that, for the purpose of this 
analysis, all directly regulated commercial and for-hire fishing 
businesses are small entities. Based on this information, NMFS expects 
the final rule to affect a substantial number of small entities.
    Because revenue and cost data are not collected for the commercial 
fishing businesses that are expected to be directly regulated by this 
final rule, direct estimates of their economic profits are not 
available. However, economic theory suggests that annual allocation 
(quota) prices should reflect expected annual economic profits, which 
allows economic profits to be estimated indirectly.
    Further, the 436 commercial fishing businesses that own red grouper 
shares, and therefore receive red grouper quota at the beginning of 
each calendar year, also own shares and receive quota in the other IFQ 
share categories, i.e., red snapper, gag, shallow-water grouper, deep-
water grouper, and tilefish. These businesses earn economic profits 
because of their ownership of these shares as well as their red grouper 
shares. However, economic profits are only realized if the allocated 
quota is actually used for harvesting purposes (i.e., no economic 
profits will accrue unless the quota results in the production and sale 
of seafood). Because the average annual commercial landings of red 
grouper from 2014-2018 and the red grouper commercial quota are almost 
identical, NMFS assumes that all of the red grouper commercial quota 
will be harvested in the foreseeable future. Similarly, because 
practically all of the commercial red snapper quota has been used for 
harvesting in recent years, NMFS assumes that all of the commercial red 
snapper quota allocated to these businesses will be harvested in the 
foreseeable future. However, based on 2015-2019 data, NMFS expects that 
only 84 percent of the deep-water grouper commercial quota, 50 percent 
of the gag commercial quota, 35 percent of the shallow-water grouper 
commercial quota, and 78 percent of the tilefish commercial quota 
allocated to these businesses will be used for harvesting in the 
foreseeable future. Given these quota utilization rates in combination 
with average annual allocation prices in 2019 and annual commercial 
quotas in 2020 by share category, total economic profits for commercial 
fishing businesses with red grouper shares are estimated to be at least 
$18.61 million. This estimate does not account for any economic profits 
that may accrue to commercial fishing businesses that own red grouper 
shares from the harvest of non-IFQ species. Such profits are likely to 
be small because harvest of IFQ species accounts for around 85 percent 
of commercial IFQ vessels' average annual gross revenue, and economic 
profits from the harvest of non-IFQ species tend to be much smaller 
than those from IFQ species. Given that there are 436 commercial 
fishing businesses that own red grouper shares, the average annual 
expected economic profit per commercial fishing business is at least 
$42,700.
    However, most of these economic profits (82 percent) are the result 
of owning red snapper shares. Only approximately $1.77 million (or 9.5 
percent) of their economic profits are due to the ownership of red 
grouper shares. This final rule is only expected to affect economic 
profits from the ownership of red grouper shares. Specifically, the 
action that reduces the OFL, ABC, total ACL, and the commercial sector 
allocation of the total ACL results in a reduction of the red grouper 
commercial ACL from 3.16 million lb (1.43 million kg) to 2.53 million 
lb (1.15 million kg) and the commercial red grouper ACT (quota) from 
3.00 million lb (1.36 million kg) to 2.40 million lb (1.09 million kg). 
Given an annual allocation price of $0.59 per lb ($1.30 per kg) in 2019 
for red grouper, this reduction in the commercial red grouper quota is 
expected to reduce economic profits to these commercial fishing 
businesses by $354,000, or about $812 per business. Thus, economic 
profit is expected to be reduced by no more than 1.9 percent on average 
per commercial fishing business.
    Based on the most recent information available, average annual 
profit is $26,514 per charter vessel. The action that modifies the 
sector allocations, OFL, ABC, and total ACL results in a reduction of 
the red grouper recreational ACL from 2.10 million lb (0.95 million kg) 
in MRIP-FES units to 1.73 million lb (0.78 million kg) in MRIP-FES 
units. The ACL reduction is expected to reduce the recreational season 
length by 12 days, and thereby cause the number of trips targeting red 
grouper on charter vessels to decrease by 665 angler trips. Net Cash 
Flow per Angler Trip (CFpA) is the best available estimate of profit 
per angler trip by charter vessels. CFpA on charter vessels is 
estimated to be $141 per angler trip. Thus, NMFS expects the estimated 
reduction in charter vessel profits from this action to be $93,723, or 
$179 per vessel.
    The action that increases the buffer between the recreational ACL 
and recreational ACT from 8 percent to 9 percent decreases the 
recreational ACT from 1.59 million lb (0.72 million kg) to 1.57 million 
lb (0.71 million kg). The ACT reduction is only germane if the

[[Page 25589]]

recreational sector exceeds its ACL in the future, as that would 
trigger the post-season AM, causing the recreational sector to be 
constrained to the recreational ACT rather than the recreational ACL. 
Average annual landings in the recreational sector from 2016 through 
2019 are greater than the recreational ACL, and so it is possible that 
the post-season AM may be triggered, causing the recreational sector, 
including the for-hire component, to be constrained to the ACT. If the 
post-season AM is triggered, the additional reduction in the 
recreational season length caused by this action is estimated to be 4 
days, which NMFS expects to cause the number of trips targeting red 
grouper on charter vessels to decrease by an additional 204 angler 
trips. Thus, if the post-season AM is triggered, NMFS estimates that 
the reduction in charter vessel profits would be $28,764, or $55 per 
vessel.
    Based on the above, NMFS expects the total reduction in profits for 
charter vessels from this final rule to be no more than $122,487, or 
$234 per charter vessel. Thus, profit would potentially be reduced by 
approximately 0.9 percent on average per for-hire fishing business.
    Five alternatives, including the status quo, were considered for 
the action to set the sector allocations for red grouper at 59.3 
percent for the commercial sector and 40.7 percent for the recreational 
sector, and set the OFL, ABC, total ACL, commercial ACL, and 
recreational ACL at 4.66 million lb (2.11 million kg), 4.26 million lb 
(1.93 million kg), 4.26 million lb (1.93 million kg), 2.53 million lb 
(1.15 million kg), and 1.73 million lb (0.78 million kg) in MRIP-FES 
units, respectively. The status quo alternative would have maintained 
the current sector allocations for red grouper at 76 percent for the 
commercial sector and 24 percent for the recreational sector, and 
maintained the OFL, ABC, total ACL, commercial ACL, and recreational 
ACL of 14.16 million lb (6.42 million kg), 13.92 million lb (6.31 
million kg), 4.16 million lb (1.89 million kg), 3.16 million lb (1.43 
million kg), and 1.00 million lb (0.45 million kg) in MRIP-CHTS units, 
respectively. In general, the status quo alternative was not selected 
because it is not based on the best scientific information available. 
More specifically, the status quo alternative would continue to use 
estimates based on MRIP-CHTS data rather than MRIP-FES data for the 
recreational sector, even though MRIP-FES data have been determined to 
be the best scientific information available for estimating and 
monitoring landings and effort in the recreational sector. The status 
quo alternative would have also set OFL and ABC above the values 
produced by the most recent stock assessment and recommended by the 
Council's SSC.
    A second alternative would have maintained the current sector 
allocations for red grouper at 76 percent for the commercial sector and 
24 percent for the recreational sector, and resulted in an OFL, ABC, 
total ACL, commercial ACL, and recreational ACL of 5.35 million lb 
(2.43 million kg), 4.90 million lb (2.22 million kg), 4.90 million lb 
(2.22 million kg), 3.72 million lb (1.69 million kg), and 1.18 million 
lb (0.54 million kg) in MRIP-FES units, respectively. This alternative 
was not selected as it would have resulted in considerably lower net 
economic benefits to the Nation compared to the action in the final 
rule. In addition, because of the conversion from MRIP-CHTS to MRIP-
FES, the second alternative would have also effectively resulted in a 
significant reallocation of the total ACL from the recreational sector 
to the commercial sector. As a result, this alternative would have 
caused a disproportionately larger adverse effect on the recreational 
sector relative to the commercial sector in comparison to the action in 
the final rule, which was not considered to be fair and equitable.
    A third alternative would have set the sector allocations for red 
grouper at 68.7 percent for the commercial sector and 31.3 percent for 
the recreational sector, and resulted in an OFL, ABC, total ACL, 
commercial ACL, and recreational ACL of 5.03 million lb (2.28 million 
kg), 4.60 million lb (2.09 million kg), 4.60 million lb (2.09 million 
kg), 3.16 million lb (1.43 million kg), and 1.44 million lb (0.65 
million kg) in MRIP-FES units, respectively. Similar to the second 
alternative, the third alternative was not selected as it would have 
resulted in considerably lower net economic benefits to the Nation 
compared to the action in the final rule. Further, the third 
alternative would have maintained the current commercial ACL despite 
the required reduction in the total ACL. While this would have resulted 
in no effects on the commercial sector, it would have also resulted in 
a reallocation of the total ACL from the recreational sector to the 
commercial sector and thereby caused large adverse effects on the 
recreational sector compared to the action in the final rule, which was 
not considered to be fair and equitable.
    A fourth alternative would have set the sector allocations for red 
grouper at 60.5 percent for the commercial sector and 39.5 percent for 
the recreational sector, and resulted in an OFL, ABC, total ACL, 
commercial ACL, and recreational ACL of 4.70 million lb (2.13 million 
kg), 4.30 million lb (1.95 million kg), 4.30 million lb (1.95 million 
kg), 2.60 million lb (1.18 million kg), and 1.70 million lb (0.77 
million kg) in MRIP-FES units, respectively. A fifth alternative would 
have set the sector allocations for red grouper at 59.7 percent for the 
commercial sector and 40.3 percent for the recreational sector, and 
resulted in an OFL, ABC, total ACL, commercial ACL, and recreational 
ACL of 4.67 million lb (2.12 million kg), 4.28 million lb (1.94 million 
kg), 4.28 million lb (1.94 million kg), 2.56 million lb (1.16 million 
kg), and 1.72 million lb (0.78 million kg) in MRIP-FES units, 
respectively. The fourth and fifth alternatives were not selected 
because they did not use the same time series of years as the original 
sector allocation and therefore would not as accurately reflect the 
historical participation of the commercial and recreational sectors in 
the fishery, which is contrary to the Council's objectives. These 
alternatives were also not selected as they resulted in slightly lower 
net economic benefits to the Nation compared to the action in the final 
rule.
    Two alternatives, including the status quo, were considered for the 
action to maintain the buffer between the commercial ACL and commercial 
ACT of 5 percent and increase the buffer between the recreational ACL 
and recreational ACT from 8 percent to 9 percent. The status quo 
alternative would have maintained the buffer between the commercial ACL 
and commercial ACT of 5 percent and maintained the buffer between the 
recreational ACL and recreational ACT of 8 percent. The status quo 
alternative was not selected because the current recreational buffer is 
based on MRFSS data, which are no longer used for quota monitoring 
because they are no longer the best scientific information available.
    The second alternative would have reduced the commercial buffer 
from 5 percent to 0 percent and increased the recreational buffer from 
8 percent to 9 percent. Both the red grouper and gag share categories 
in the commercial grouper-tilefish IFQ program have a multi-use 
provision that allows a portion of the red grouper quota to be 
harvested under the gag allocation, and a portion of the gag quota to 
be harvested under the red grouper allocation. Each year, the program 
assigns a portion of each shareholder's red grouper and gag's 
allocations to the multi-use allocation category. The intent of the 
multi-use provision is to provide for allocation if either gag or red 
grouper

[[Page 25590]]

are landed as incidental catch. The second alternative was not selected 
because, based on recent data, the gag multi-use allocation would be 
zero. As a result, red grouper could not be landed with gag allocation, 
which is contrary to the purpose of the multi-use provision in the 
grouper-tilefish IFQ program.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, NMFS prepared a fishery bulletin, which also 
serves as a small entity compliance guide. Copies of this final rule 
are available from the Southeast Regional Office, and the guide, i.e., 
fishery bulletin, will be sent to all known industry contacts in the 
Gulf reef fish fishery and be posted at: https://www.fisheries.noaa.gov/tags/small-entity-compliance-guide?title=&field_species_vocab_target_id=&field_region_vocab_target_id%5B1000001121%5D=1000001121&sort_by=created. The guide and this final 
rule will be available upon request.
    This final rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

References

Carter, D.W. and C. Liese. 2012. The Economic Value of Catching and 
Keeping or Releasing Saltwater Sport Fish in the Southeast USA. 
North American Journal of Fisheries Management, 32:4, pages 613-625. 
http://dx.doi.org/10.1080/02755947.2012.675943.
Carter, D.W., S.J. Lovell and C. Liese. 2020. Does angler 
willingness-to-pay for changes in harvest regulations vary by state? 
Results from a choice experiment in the Gulf of Mexico. Marine 
Policy, 121, page 104196.
Carter, D.W., C. Liese and S.J. Lovell. 2022. The option price of 
recreational bag limits and the value of harvest. Marine Resource 
Economics, 37(1), pages 35-52.
Dettloff, K. and V. Matter. 2019. Sample size sensitivity analysis 
for calculating MRIP weight estimates. SEDAR67-WP-06. SEDAR, North 
Charleston, SC. 6 pages.
Keithly W.R., Jr. and M. Tabarestani. 2018. The Gulf of Mexico 
grouper/tilefish fishery after introduction of an individual fishing 
quota program: The impact on ex-vessel prices. https://gulfcouncil.org/wp-content/uploads/Demand-Analysis.pdf.
Keithly W.R., Jr. and H. Wang. 2018. Results from the National 
Marine Fisheries Service 2016 Gulf of Mexico Grouper Tilefish IFQ 
Survey. 50 pages. https://gulfcouncil.org/wp-content/uploads/Dealer-Survey.pdf.
Lovell, S., J. Hilger, E. Rollins, N.A. Olsen, and S. Steinback. 
2020. The Economic Contribution of Marine Angler Expenditures on 
Fishing Trips in the United States, 2017. U.S. Dep. Commerce, NOAA 
Tech. Memo. NMFS-F/SPO-201, 80 pages.
Overstreet, E. and C. Liese. 2018b. Economics of the Gulf of Mexico 
Reef Fish Fishery, 2016. NOAA Technical Memorandum NMFS-SEFSC-725. 
116 pages.

List of Subjects in 50 CFR Part 622

    Annual catch limit, Fisheries, Fishing, Gulf, Red grouper, Reef 
fish.

    Dated: April 26, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

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

0
1. The authority citation for part 622 continues to read as follows:

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


0
2. In Sec.  622.39, revise paragraph (a)(1)(iii)(C) to read as follows:


Sec.  622.39   Quotas.

* * * * *
    (a) * * *
    (1) * * *
    (iii) * * *
    (C) Red grouper--2.40 million lb (1.09 million kg).
* * * * *

0
3. In Sec.  622.41, revise the last sentence of paragraph (e)(1) and 
revise paragraph (e)(2)(iv) to read as follows:


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

* * * * *
    (e) * * *
    (1) * * * The commercial ACL for red grouper, in gutted weight, is 
2.53 million lb (1.15 million kg).
    (2) * * *
    (iv) The recreational ACL for red grouper, in gutted weight, is 
1.73 million lb (0.78 million kg). The recreational ACT for red 
grouper, in gutted weight, is 1.57 million lb (0.71 million kg).
* * * * *

[FR Doc. 2022-09300 Filed 4-29-22; 8:45 am]
BILLING CODE 3510-22-P


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