[Federal Register Volume 63, Number 166 (Thursday, August 27, 1998)]
[Rules and Regulations]
[Pages 45760-45763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22943]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 980818222-8222-01; I.D. 081898A]
RIN 0648-AL61


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

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

ACTION: Emergency interim rule with request for comments and notice of 
closure.

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SUMMARY: This emergency interim rule releases the remaining 1998 
recreational and commercial quota reserves for Gulf of Mexico red 
snapper. In so doing, it supersedes certain provisions of the interim 
rule that was published in the Federal Register on April 14, 1998. In 
addition, NMFS closes the recreational fishery for red snapper in the 
exclusive economic zone (EEZ) of the Gulf of Mexico, effective 12:01 
a.m., local time, September 30, 1998, through December 31, 1998. The 
intended effects are to

[[Page 45761]]

avoid unnecessary restrictions and associated adverse economic and 
social impacts, to make the appropriate quotas available to the 
recreational and commercial sectors consistent with the best available 
scientific information, and to protect the red snapper resource.

DATES: This rule is effective August 27, 1998 through February 24, 
1999. The closure of the recreational fishery for red snapper in the 
EEZ of the Gulf of Mexico is effective 12:01 a.m., local time, 
September 30, 1998, through December 31, 1998.

ADDRESSES: Comments on this emergency interim rule must be mailed to, 
and copies of documents supporting this action may be obtained from, 
the Southeast Regional Office, NMFS, 9721 Executive Center Drive N., 
St. Petersburg, FL 33702.

FOR FURTHER INFORMATION CONTACT: Robert Sadler, 727-570-5305.

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico 
is managed under the Fishery Management Plan for the Reef Fish 
Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf 
of Mexico Fishery Management Council (Council) and is implemented under 
the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 
622.

Total Allowable Catch (TAC)

    In February 1998, the Council submitted a regulatory amendment to 
the FMP which proposed to maintain the red snapper TAC at 9.12 million 
lb (4.14 million kg). The Council based its decision, in part, on an 
assumed bycatch reduction in mortality of at least 60 percent for 
juvenile red snapper, phased in over a 3-year period, and updated 
bycatch reduction device (BRD) performance information which showed 
that bycatch reduction levels of 59 percent and above were achievable 
with fisheye BRDs. Previous assumptions involved reduction levels 
closer to 50 percent based on advice from NMFS gear specialists. At the 
higher bycatch reduction level, model projections demonstrated that the 
target 20 percent SPR could be achieved by 2019 while maintaining TAC 
at 9.12 million lb (4.14 million kg). At the time the Council issued 
its regulatory amendment, the requirement for BRDs had not been 
implemented. The requirement for BRDs, however, was implemented May 14, 
1998, (63 FR 18139, April 14, 1998).
    On April 14, 1998, NMFS published an interim rule (63 FR 18144) 
which left the 9.12 million-lb (4.14 million-kg) TAC for 1998 
unchanged, but held 3.12 million lb (1.42 million kg) in reserve. The 
reserve was to be released on September 1, 1998, if a research study 
conducted during the summer of 1998 was able to demonstrate that BRDs 
could achieve reduction levels above 50 percent. This interim rule was 
followed by two additional interim rules (63 FR 27499, May 19, 1998 and 
63 FR 27485, May 19, 1998). The first of these certified two new BRDs. 
The second implemented data collection requirements, including 
mandatory observers, logbooks, and vessel monitoring systems, for the 
Gulf shrimp fleet.
    Under the latter rule, NMFS began a research study to evaluate BRD 
performance under commercial operational conditions. Preliminary 
results from the 1998 summer study indicated that juvenile red snapper 
bycatch in shrimp trawls has been reduced. However, the analyses of 
these data conducted to date do not warrant release of any of the 
reserve red snapper TAC in accordance with the interim rule.
    However, NMFS believes that adjusted bycatch reduction levels of 
about 55 percent are achievable within approximately 2 years. Prior BRD 
test results where the BRDs were installed by gear specialists and the 
vessel captains were briefed on how to optimize the performance of the 
BRD resulted in unadjusted reduction levels of 59 to 71 percent for the 
more commonly used fisheye BRDs. Adjustments for compliance, mortality, 
and lack of compatible state regulation (based on 1998 study results) 
would still provide for bycatch reductions at or above 55 percent. BRD 
compliance levels in Federal waters can be expected to reach about 97 
percent within approximately 2 years based on NMFS' experience with 
improvement in compliance rates for turtle excluder devices. The 
predation mortality of fisheye and Jones-Davis BRDs was approximately 
1.5 and 20 percent, respectively. Even higher reduction levels may be 
possible, especially if BRD requirements are used in combination with 
other management measures such as those recommended by the 1997 science 
and management peer review (fleet or vessel bycatch quotas and/or 
selected area closures to shrimping).

Effect of National Standard Guidelines

    Revised national standard guidelines were published on May 1, 1998 
(63 FR 24212), which specifically affect red snapper management in the 
Gulf of Mexico. In particular, the guidelines call for a change in the 
definitions of ``overfishing,'' ``overfished,'' ``optimum yield (OY),'' 
and a change in recovery schedules. Gulf red snapper are considered 
overfished, but recovering.
    While the Gulf Council has not yet specified a revised Maximum 
Sustainable Yield (MSY), OY, or recovery period for red snapper, 
according to a letter from the Council Chair dated August 5, 1998, NMFS 
anticipates that the Council will recommend 30-percent spawning 
potential ration (SPR) for MSY and the maximum recovery period allowed 
by the guidelines to prevent unnecessary economic and social hardships 
on the directed red snapper fisheries and fishing communities in the 
Gulf of Mexico.
    SPR projections modeled by NMFS show that a target SPR level of 30 
percent could be achieved within the rebuilding period allowed by the 
guidelines, if management measures, including BRDs, phase-in a 
reduction of juvenile red snapper bycatch mortality by 55 percent 
within 2 years and up to 60 percent during the recovery period. 
However, landings cannot exceed TAC (9.12 million lb (4.14 million 
kg)). NMFS encourages the Council to evaluate other management measures 
to reduce red snapper bycatch, if needed, to reach the bycatch 
reduction level necessary to maintain the current 9.12 million-lb (4.14 
million-kg) TAC.

Release of the 1998 Red Snapper Reserve TAC

    NMFS believes that immediate release of the remainder of the 3.12 
million-lb (1.42 million-kg) 1998 red snapper reserve TAC is warranted, 
based on advice from NMFS gear specialists; preliminary results from 
studies and analyses designed to quantify effects of BRD compliance, 
BRD release mortalities, and the lack of compatible state BRD 
regulations; and the revised national standard guidelines. NMFS 
believes that without this release severe economic and social hardships 
would occur in the red snapper commercial and recreational fisheries, 
and in the communities that depend on these fisheries. Potential 
commercial losses are estimated as a short-term revenue loss of $2.7 
million and a profit loss of $1.4 million. The degree to which red 
snapper anglers will cancel trips or target alternative species in 
response to closures is not known. Potentially, 27 percent of 
recreational trips may be canceled. These hardships should be minimized 
with a release of the remaining TAC reserve.
    Therefore, this emergency interim rule supersedes the TAC 
provisions of the April 14, 1998, interim rule and

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releases the remaining recreational quota reserve effective August 27, 
1998 and releases the remaining commercial quota reserve of 1.53 
million lb (0.69 million kg) effective at noon, local time, on 
September 1, 1998. During the commercial season, the red snapper 
commercial fishery opens at noon on the first of each month and closes 
at noon on the 15th of each month, until the applicable commercial 
quota is reached, as determined by near real-time monitoring of 
landings at the dealer level. When the commercial quota is reached or 
is projected to be reached, notification of the commercial closure will 
be published in the Federal Register.

Closure of the Recreational Red Snapper Fishery

    Under 50 CFR 622.43, NMFS is required to close the Gulf red snapper 
recreational fishery when the available quota is reached, or is 
projected to be reached. Because of the large number of recreational 
anglers and the geographical diversity of access sites, the procedures 
that are used to monitor a quota for recreational fishing are 
fundamentally different from the procedures used to monitor quotas for 
commercial fishing. For commercial fishing, the catch is unloaded and 
recorded as part of the buying/selling transaction, and a physical 
record is kept of the transaction. In contrast, all catches by 
recreational anglers cannot be recorded and statistical techniques have 
to be used to estimate the catches from this sector of the fishery.
    For the Gulf of Mexico, three sources of data are used to estimate 
recreational red snapper landings: NMFS Marine Recreational Fishery 
Statistical Survey (MRFSS), NMFS Headboat Survey, and the Texas 
Recreational Fishery Survey. Data from these surveys are used in models 
to project landings. In 1997, NMFS used a model based on average 
landings from the previous few years adjusted by data from the current 
year MRFSS and headboat survey estimates. This model has now been 
significantly upgraded and expanded to incorporate age structure and 
recruitment information. NMFS believes that the landing projections 
based on the upgraded model (length-based simulation model (LSIM)), 
with some consideration given to current year conditions, represents 
the best available scientific information for estimating when the red 
snapper fishery should be closed.
    Based on the LSIM model, NMFS projects that the available 
recreational quota of 4.47 million lb (2.03 million kg) for red snapper 
will be reached by September 29, 1998. Accordingly, the recreational 
fishery in the EEZ in the Gulf of Mexico for red snapper is closed 
effective 12:01 a.m., local time, September 30, 1998, through December 
31, 1998. During the closure, the bag and possession limit is zero for 
all red snapper harvested in or from the EEZ in the Gulf of Mexico, and 
for all permitted reef fish vessels without regard to where the red 
snapper were caught.

Compliance With NMFS Guidelines for Emergency Rules

    This emergency rule meets NMFS policy guidelines for the use of 
emergency rules, published on January 6, 1992 (57 FR 375). The 
situation: (1) Results from recent, unforeseen events or recently 
discovered circumstances; (2) presents a serious management problem; 
and (3) realizes immediate benefits from the emergency rule that 
outweigh the value of prior notice, opportunity for public comment, and 
deliberative consideration expected under the normal rulemaking 
process.

Recent, Unforeseen Events or Recently Discovered Circumstances

    NMFS expects that recovery of red snapper to 30 percent SPR 
(assumed proxy for MSY) can be achieved within the recovery period 
allowed by the recently published national standard guidelines at 
adjusted bycatch reduction levels of 55-60 percent. The current target 
recovery SPR level is 20 percent by 2019. Additionally, BRD research, 
coupled with advice from NMFS gear experts, indicates that a 55-60 
percent adjusted level of bycatch mortality reduction for juvenile red 
snapper is a reasonable expectation.

Serious Management Problems in the Fishery

    Without this emergency rule, the directed commercial red snapper 
fishery would not be allowed to open on September 1, 1998, and the 
recreational fishery would have to be closed immediately in Federal 
waters. However, these actions appear unnecessary to rebuild the red 
snapper stock under the revised national standard guidelines. Failure 
to open the commercial fishery and immediate closure of the 
recreational fishery would have serious adverse economic impacts on the 
commercial and recreational fisheries, and the fishing communities they 
support. Potential commercial losses are estimated as a short-term 
revenue loss of $2.7 million and a profit loss of $1.4 million. The 
degree to which red snapper anglers will cancel trips or target 
alternative species in response to closures is not known. Potentially, 
27 percent of recreational trips may be canceled. In addition, early 
announcement of the recreational closure date will facilitate angler 
planning.

Immediate Benefits

    The immediate benefits of the emergency rule greatly outweigh the 
value of prior notice and opportunity for public comment, which would 
occur under normal rulemaking. This rule relieves restrictions on those 
individuals and fishing communities dependent on the Gulf red snapper 
fishery in a manner that is consistent with the national standard 
guidelines, the Magnuson-Stevens Act, and other applicable law.
    The NMFS Southeast Fisheries Science Center has determined that 
this emergency interim rule is based on the best available scientific 
information.
    NMFS finds that the timely regulatory action provided by this 
emergency interim rule is critical to avoiding unnecessary adverse 
economic and social impacts on participants and fishing communities 
dependent on the red snapper fishery in the Gulf of Mexico. NMFS issues 
this emergency interim rule, effective for not more than 180 days, as 
authorized by section 305(c) of the Magnuson-Stevens Act.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that this rule is necessary to make the appropriate quotas 
of red snapper in the Gulf of Mexico available to the recreational and 
commercial fisheries and to avoid unnecessary restrictions. The AA has 
also determined that this rule is consistent with the Magnuson-Stevens 
Act and other applicable laws.
    This emergency interim rule has been determined to be not 
significant for purposes of E.O. 12866.
    Because prior notice and an opportunity for public comment are not 
required to be provided for this rule by 5 U.S.C. 553 or any other law, 
the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 
601 et seq., are inapplicable.
    NMFS prepared an economic evaluation of the regulatory impacts 
associated with this emergency interim rule that is summarized as 
follows. This emergency rule releases the remainder of the 3.12 million 
lb (1.42 million kg) of TAC that was previously reserved, thereby 
increasing both commercial and recreational fishing values. In the case 
of the commercial fishery, the additional quota reserve released would 
have been 1.59 million lb (0.72 million kg), but this poundage had to 
be

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decreased by 0.06 million lb (0.03 million kg) because of a slight 
quota overrun during the initial commercial season. The resulting 
increase of 1.53 million lb (0.69 million kg) in the commercial quota 
translates into increased revenues for the 1998 fishing year of $2.7 
million and increased profits of $1.4 million. For the recreational 
fishery, the release of the additional quota reserve means that the 
recreational fishery will be able to take 34,000 additional red snapper 
fishing trips in 1998. The increased number of trips will occur because 
a recreational closure for the period September-December means that 
126,000 trips would be foregone, while only 92,000 trips will be 
foregone when the quota reserve is released and the fishery closed for 
the shorter October-December period. Although there is not enough 
information to translate the increased number of trips into increased 
value in dollar terms, there is no question that there will be 
increased satisfaction and consumer surplus for private recreational 
fishermen and increased revenues and profits for charterboat and 
headboat operators. One way of viewing the change in value is to note 
that the increase of 34,000 trips for September means that losses would 
approach 27 percent for the balance of 1998 if the quota reserve was 
not released. It is noted that the actual loss would be somewhat less 
than 27 percent because some of the trips would target alternative 
species.
    Copies of the economic evaluation are available (see ADDRESSES).
    A delay in releasing the available quota reserves, consistent with 
the best scientific information available, would result in severe and 
unnecessary adverse impacts on all entities dependent on the red 
snapper fishery in the Gulf of Mexico, including the recreational and 
commercial fisheries and the associated fishing communities. 
Accordingly, pursuant to authority set forth at 5 U.S.C. 553(b)(B), the 
AA finds that these reasons constitute good cause to waive the 
requirement to provide prior notice and the opportunity for prior 
public comment, as such procedures would be contrary to the public 
interest. Pursuant to 5 U.S.C. 553(d)(1), a delay in the effective date 
of this rule is unnecessary because this rule relieves restrictions on 
the regulated participants in this fishery.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

    Dated: August 21, 1998.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, 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, AND SOUTH ATLANTIC

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

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




Sec. 622.42  [Amended]

    2. In Sec. 622.42, the suspension of paragraph (a) is lifted; 
paragraphs (a)(1)(i)(A) and (a)(1)(i)(B) are further amended by 
revising the respective references to Sec. 622.34(l) to read 
Sec. 622.34(m); and paragraph (g) is removed.
[FR Doc. 98-22943 Filed 8-21-98; 4:34 pm]
BILLING CODE 3510-22-F