Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Red Snapper Bag Limit Reduction

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 980804203-8406-01; I.D. 122298A]

RIN 0648-AK97

Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;

Reef Fish Fishery of the Gulf of Mexico; Red Snapper Bag Limit

Reduction

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Emergency interim rule; request for comments.

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SUMMARY: This emergency interim rule reduces the daily bag limit for

red snapper possessed in or from the exclusive economic zone (EEZ) of

the Gulf of Mexico from five fish to four fish. The intended effects

are to avoid angler confusion and excessive fishing mortality, slow the

rate of harvest, extend the recreational fishing season, and help

ensure that more of the recreational quota is available during a later

period for recreational fishing. This will provide for better

management, minimize the potential for significant economic losses that

would occur with an earlier closure of the recreational fishery, and

increase social and economic benefits derived from the available

recreational quota.

DATES: This rule is effective January 1, 1999, through June 29, 1999.

ADDRESSES: Comments on this emergency interim rule must be mailed to,

and copies of documents supporting this action, such as the economic

analysis and environmental assessment, may be obtained from, the

Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St.

Petersburg, FL 33702. Requests for copies of a minority report

submitted by seven members of the Council and/or a minority report

submitted by one member of the Council should be sent to the Gulf of

Mexico Fishery Management Council, Suite 1000, 3018 U.S. Highway 301

North, Tampa, FL 33619, Phone: 813-228-2815; Fax: 813-225-7015.

[[Page 72201]]

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.

Council Recommendations for Red Snapper Management Measures

At its November 1998 meeting, the Council considered a NMFS stock

assessment for Gulf of Mexico red snapper and heard substantial

testimony from charter vessel operators and a chamber of commerce

regarding the need to extend the recreational red snapper fishing

season as late into the calendar year as practicable. The Council

requested an emergency rule to delay opening the 1999 red snapper

recreational fishery in the Gulf of Mexico EEZ from January 1 until

March 1; to implement bag limits of zero fish for captain and crew of

for-hire vessels and four fish for other persons not fishing under the

commercial quota (recreational bag limit); and to implement a minimum

size limit of 14 inches (35.6 cm), total length, for persons fishing

under the recreational or commercial quotas for red snapper in the EEZ.

The Council also voted to include those measures, as well as a change

in the timing of the fall commercial season, in a regulatory amendment

to be implemented through a framework notice and comment rulemaking

procedure of the FMP.

Reduction of the Recreational Bag Limit

This emergency rule to reduce the recreational bag limit to four

fish per person would reduce angler confusion, increase the number of

fishing trips on which red snapper would be harvested, and extend the

length of the open season. Without this emergency action, the

recreational fishery would open on January 1, 1999, with a 5-fish bag

limit. If NMFS approves and implements the Council's regulatory

amendment after January 1, the 5-fish bag limit would be reduced to

four fish part way through the season. This mid-season change could

create confusion in the fishery and lead to fishing mortality in excess

of the 4-fish bag limit by fishermen unaware of the bag limit

reduction. Implementation of this emergency interim rule would avoid

that confusion and provide for consistent catch limits during the open

season.

In addition, if the recreational red snapper season were to open on

January 1 with a 5-fish bag limit and a 15-inch (38.1 cm) minimum size

limit for the entire season, preliminary projections suggest that

approximately 391,000 red snapper angler trips could be taken to

harvest red snapper. Approximately 244,000 of those trips are for-hire

angler trips. Under this scenario, the season is projected to close on

August 17, 1999. However, a January 1 opening with a 15-inch (38.1 cm)

minimum size limit and a 4-fish bag limit is expected to allow 441,000

angler trips to harvest red snapper, of which 275,000 (62 percent) are

for-hire trips. This 4-fish bag limit scenario is projected to extend

the 1999 season through September 10. Compared to a 5-fish bag limit

for all of 1999, the expected benefits of a 4-fish bag limit are an

additional 23 fishing days and 50,000 red snapper harvest angler trips

across all modes, including a gain of 31,000 for-hire trips on which

red snapper are harvested.

A minority report signed by seven Council members suggested that

the 4-fish bag limit would not need to be implemented by emergency rule

if the season opening date were delayed until March 1. However, because

neither the minority report signed by seven Council members nor the

minority report signed by one Council member provided substantive

objections to implementation of a 4-fish bag limit through an emergency

rule, and because of the benefits of the reduced bag limit, NMFS is

issuing this emergency rule.

Analysis of Other Council-Recommended Measures

The Council requested emergency implementation of a delay of the

recreational season opening date from January 1 to March 1. Subsequent

analyses by NMFS indicated a net loss in the number of in-season trips

catching red snapper if the season opening date were delayed until

March 1. NMFS considered a minority report signed by seven Council

members that recommended emergency implementation of only the season

delay. However, NMFS found the report did not provide sufficient

information to warrant implementation of the delay by an emergency

rule. In light of a potential loss in the number of trips harvesting

red snapper, NMFS considers the value of providing the public the

opportunity to comment on a season delay outweighs the value of

implementing this measure through an emergency rule.

NMFS also considered two minority reports addressing the Council's

request to implement by emergency rule the 14-inch minimum size limit

to reduce bycatch mortality and a zero-fish bag limit for captain and

crew of for-hire vessels. The minority report signed by seven Council

members objected to the 14-inch minimum size limit based on their

concerns about its biological impact, and to the zero-fish bag limit

based on their concerns about a differential impact on captain and crew

of for-hire vessels as opposed to other vessels. One Council member

submitted a separate minority report objecting to the zero bag limit

for captain and crew of for-hire reef fish vessels in both the

regulatory amendment and emergency rule request because of concerns

about the equity of such a measure. In light of the controversy over

these measures, NMFS determined that the value of additional public

comment on a zero bag limit and 14-inch (35.6 cm) minimum size limit

outweighs any benefits of their implementation through an emergency

rule. NMFS will further consider the minority reports prior to taking

agency action on these measures under the Council's regulatory

amendment.

Criteria for Issuing an Emergency Rule

This emergency interim rule meets NMFS policy guidelines for the

use of emergency rules (62 FR 44421, August 21, 1997), because the

emergency situation: Results from recent, unforeseen events, or

recently discovered circumstances; presents a serious management

problem; and 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. Compliance with the NMFS policy guidelines is discussed here.

Recent, Unforeseen Events or Recently Discovered Circumstances

The Council was unable to propose red snapper management measures

before its November 9-12, 1998, meeting due to the lack of a complete

red snapper stock assessment. The red snapper stock assessment utilizes

data obtained from state fishery management agencies and NMFS. This

year those data and analyses were made available later than usual. The

FMP's framework procedure for making changes to fishery management

measures requires review of the stock assessment prior to the Council's

recommendation of such changes. The late availability of the stock

assessment information was an

[[Page 72202]]

unforeseen circumstance that precluded earlier action by the Council

and NMFS.

Moreover, insufficient time exists to process the Council's

regulatory amendment and to implement the decreased bag limit through

proposed and final rules in time for the January 1 fishery opening.

These unavoidable circumstances indicate the need for an emergency

interim rule to implement a 4-fish bag limit in time for the January 1

opening.

Serious Management Problems in the Fishery

Without emergency action in time for the 1999 season, the

recreational fishery would automatically open with a 5-fish bag limit

per person that differs from the Council's bag limit recommendations.

Allowing the fishery to open with a 5-fish bag limit starting January

1, 1999, and subsequently changing to 4-fish per person bag limit,

assuming NMFS' approval of the Council's regulatory amendment, could

seriously erode public confidence in red snapper management and create

confusion in the fishery. Such confusion could lead to increased

fishing mortality through harvest in excess of the 4-fish bag limit

following implementation of that measure under the Council's regulatory

amendment. While these factors cannot be quantified, they are of

significant concern to NMFS.

In addition, under a January 1 opening and a 5-fish bag limit and a

15-inch (38.1-cm) minimum size limit through the entire season, the

1999 recreational red snapper fishery will close on August 17 and allow

approximately 391,000 red snapper angler trips, of which approximately

244,000 are for-hire angler trips to harvest red snapper. The resulting

economic impacts, when combined with angler confusion and associated

disruption, would constitute serious management problems in the fishery

if this emergency interim rule is not implemented.

NMFS has projected that a 4-fish bag limit, as provided by this

rule, will allow approximately 23 additional fishing days, with a

projected closure on September 10, and allow a total of 441,000 angler

trips. Of those trips, 275,000 (62 percent) are for-hire angler trips

to harvest red snapper. This information indicates that management

problems associated with the shorter season would be avoided under the

emergency interim rule.

Immediate Benefits

Public comment to the Council indicated that slowing the rate of

harvest through a 4-fish bag limit emergency interim rule would avoid

angler confusion and optimize overall benefits to the fishery starting

January 1, 1999. Without a 4-fish bag limit emergency interim rule, the

recreational fishery would open with a bag limit that differs from the

Council's recommendations. Agency experience demonstrates that

substantial user group confusion results from adjusting management

measures during the fishing year. This confusion, combined with the

negative impacts of the shortened season, would disrupt the fishery.

Timely implementation of the 4-fish bag limit under this emergency

interim rule will prevent confusion and the associated disruptive

effects.

In addition, a January 1 opening with a 15-inch (38.1-cm) minimum

size limit and 5-fish bag limit would result in a projected seasonal

closure of August 17. This scenario would not provide economic and

social benefits to the fishery associated with a September 10 closure

projected with a 4-fish bag limit. Implementation of this emergency

interim rule would provide those benefits to the fishery and, as

previously discussed, avoid angler confusion regarding bag limits.

Moreover, this rule provides the opportunity for additional public

comment.

NMFS concludes 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 recreational fishery in the Gulf of

Mexico. NMFS issues this emergency interim rule, effective for an

initial 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 emergency interim rule is necessary to minimize

significant adverse social and economic impacts that would occur with

an earlier closure of the red snapper recreational fishery and to

increase the socio-economic benefits associated with the recreational

quota. 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.

NMFS prepared an economic evaluation of the regulatory impacts

associated with this emergency interim rule that is summarized as

follows. The major effects of the emergency interim rule are the

generation of non-quantifiable positive economic benefits, compared to

the status quo, that should accrue because of consistency of bag limit

measures throughout the year and a lengthening of the recreational

fishery's open season by approximately 23 days. The seasonal extension

will allow 50,000 additional red snapper angler trips to harvest red

snapper, including 31,000 for-hire trips. This translates into a 13-

percent increase in total red snapper angler trips for the year. The

economic consequences of the emergency interim rule can be summarized

as ranging from a small to a significant increase in economic benefits

for the recreational red snapper fishery.

The emergency interim rule does not create additional reporting,

recordkeeping or other compliance requirements. Accordingly, there are

no cost increases that can be ascribed to compliance requirements.

Copies of the economic evaluation are available (see ADDRESSES).

If action were not taken to reduce the red snapper daily bag limit

from five to four fish, the recreational fishery would be expected to

close earlier in the fishing season and at a time that would forfeit

some of the prime red snapper recreational fishing opportunities. This

would result in unnecessary adverse impacts on those entities dependent

on the red snapper recreational fishery, including the associated

fishing communities. Reduction of the bag limit at the beginning of

1999 is expected to avoid angler confusion, slow the rate of harvest,

extend the fishing season, and allow recreational fishers to harvest

the available quota during the period, which should increase optimal

social and economic benefits for the year. Accordingly, under 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. For these same reasons, under 5

U.S.C. 553(d)(3), the AA finds for good cause that a delay in the

effective date of this rule, beyond January 1, 1999, would be contrary

to the public interest.

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.

List of Subjects in 50 CFR Part 622

Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping

requirements, Virgin Islands.

[[Page 72203]]

Dated: December 24, 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.

2. In Sec. 622.34, paragraph (l) is suspended and paragraph (m) is

added to read as follows:

Sec. 622.34 Gulf EEZ seasonal and/or area closures.

* * * * *

(m) Closures of the commercial fishery for red snapper. The

commercial fishery for red snapper in or from the Gulf EEZ is closed

from January 1 to noon on February 1 and thereafter from noon on the

15th of each month to noon on the first of each succeeding month. All

times are local times. During these closed periods, the possession of

red snapper in or from the Gulf EEZ and in the Gulf on board a vessel

for which a commercial permit for Gulf reef fish has been issued, as

required under Sec. 622.4(a)(2)(v), regardless of where such red

snapper were harvested, is limited to the bag and possession limits, as

specified in Sec. 622.39(b)(1)(vi) and (b)(2), respectively, and such

red snapper are subject to the prohibition on sale or purchase of red

snapper possessed under the bag limit, as specified in

Sec. 622.45(c)(1). However, when the recreational quota for red snapper

has been reached and the bag and possession limit has been reduced to

zero, such possession during a closed period is zero.

3. In Sec. 622.39, paragraph (b)(1)(iii) is suspended and paragraph

(b)(1)(vi) is added to read as follows:

Sec. 622.39 Bag and possession limits.

* * * * *

(b) * * *

(1) * * *

(vi) Red snapper--4.

* * * * *

[FR Doc. 98-34727 Filed 12-28-98; 4:34 pm]

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