Federal Register / Vol. 87, No. 84 / Monday, May 2, 2022 / Rules and Regulations 25573 

tesseract.cloud.dcsa.mil/nccs’’ in its 

place. 

William F. Clark, 

Director, Office of Government-wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy. 

[FR Doc. 2022–09414 Filed 4–28–22; 4:15 pm] 

BILLING CODE 6820–EP–P 

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. 

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-redgrouper-allocations-and-catch-levels. 

FOR FURTHER INFORMATION CONTACT: 

Peter Hood, NMFS Southeast Regional 

Office, telephone: 727–824–5305, email: 

peter.hood@noaa.gov. 

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 


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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-StatisticalMethods-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 


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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 MagnusonStevens 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-questionsconcerning-ceqs-nationalenvironmental-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 MagnusonStevens 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. 


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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 decisionmaking 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 MagnusonStevens 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 inseason 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 

FMSY 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 


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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 commercialrecreational 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. 


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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 


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effects for the bycatch species; changes 

in the economic, social, or cultural 

value of fishing activities, and nonconsumptive 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-bycatchreduction-methodology-sbrm-five-yearreview). The review recognized that all 

recreational data sources have a high 

level of uncertainty because selfreported 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-statisticalmethods-estimation-recreationalfisheries-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 


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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/B7b-SEDAR61-Council_with-MRIPconversions.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-andstatistical-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 fleetspecific 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-andstatistical-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 


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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 postseason 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. 


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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 


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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 nonIFQ 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 


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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 benefitcost 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 


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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 exvessel 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 peerreviewed 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). 


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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 forhire 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 


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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 MagnusonStevens 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 forhire 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 forhire 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 


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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 forhire 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 


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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 


jspears on DSK121TN23PROD with RULES1
25590 Federal Register / Vol. 87, No. 84 / Monday, May 2, 2022 / Rules and Regulations 

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 

■ 1. The authority citation for part 622 

continues to read as follows: 

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

■ 2. In § 622.39, revise paragraph 

(a)(1)(iii)(C) to read as follows: 

§ 622.39 Quotas. 

* * * * * 

(a) * * * 

(1) * * * 

(iii) * * * 

(C) Red grouper—2.40 million lb (1.09 

million kg). 

* * * * * 

■ 3. In § 622.41, revise the last sentence 

of paragraph (e)(1) and revise paragraph 

(e)(2)(iv) to read as follows: 

§ 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 665 

[Docket No. 220425–0105] 

RIN 0648–BK79 

Pacific Island Fisheries; Rebuilding 

Plan for the American Samoa 

Bottomfish Fishery 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: This final rule implements a 

rebuilding plan that includes annual 

catch limits (ACL) and accountability 

measures (AM) for the overfished 

bottomfish stock complex in American 

Samoa. This action is necessary to 

rebuild the overfished stock consistent 

with the requirements of the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act). 

DATES: The final rule is effective June 1, 

2022. 

ADDRESSES: Copies of Amendment 5, 

including an Environmental Assessment 

and Regulatory Impact Review, and 

other supporting documents for this 

action are available at https://

www.regulations.gov/document/NOAANMFS-2022-0023-0006. 

FOR FURTHER INFORMATION CONTACT: 

Heather Cronin, NMFS PIR Sustainable 

Fisheries, 808–725–5179. 

SUPPLEMENTARY INFORMATION: NMFS and 

the Western Pacific Fishery 

Management Council (Council) manage 

the American Samoa bottomfish fishery 

under the American Samoa Fishery 

Ecosystem Plan (FEP) and implementing 

regulations. The fishery primarily 

targets and harvests a complex of 11 

bottomfish management unit species 

(BMUS), which includes emperors, 

snappers, groupers, and jacks. 

Bottomfish are typically harvested in 

deep waters, though some species are 

caught over reefs at shallower depths. 

Most (85 percent) bottomfish habitat is 

in territorial waters (generally from the 

shoreline to 3 nautical miles (5.6 km) 

offshore), with the rest in Federal waters 


jspears on DSK121TN23PROD with RULES1