[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7751-7754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4432]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 641

[Docket No. 951221305-6038-02; I.D. 020296B]


Reef Fish Fishery of the Gulf of Mexico; Revised 1996 Red Snapper 
Season

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

ACTION: Emergency interim rule.

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SUMMARY: NMFS issues this emergency interim rule to suspend 
implementation of the red snapper individual transferable quota (ITQ) 
system for the Gulf of Mexico, previously scheduled to begin April 1, 
1996, to make the entire 1996 commercial quota for red snapper 
available to the fishery which opened February 1, 1996, and to extend 
for the emergency period the red snapper trip limit and permit 
endorsement system. The intended effect is to respond to an emergency 
situation involving the commercial red snapper fishery by preventing 
adverse social and economic impacts on fishery participants while 
allowing a controlled harvest of fish for the 1996 season.

EFFECTIVE DATES: The amendments to Secs. 641.7 paragraphs (nn) through 
(pp) and 641.31 through 641.33 are effective February 23, 1996, through 
May 29, 1996.
    The removal of Secs. 641.34 and 641.7 paragraph (qq) is effective 
February 23, 1996.
    The April 1, 1996, effective date for the amendments to part 641 
listed in amendatory instruction 2 are delayed indefinitely.

ADDRESSES: Copies of documents supporting this action, including an 
environmental assessment, may be obtained from Robert Sadler, Southeast 
Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, 
FL 33702.

FOR FURTHER INFORMATION CONTACT: Robert Sadler, 813-570-5305.

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 
through regulations at 50 CFR part 641 under the authority of the 
Magnuson Fishery Conservation and Management Act (Magnuson Act).

Delayed Opening of the 1996 Commercial Red Snapper Fishery

    Under the provisions of an emergency interim rule (61 FR 17, 
January 2, 1996), requested by the Council and issued by NMFS, (1) the 
opening of the 1996 red snapper commercial fishery was delayed from 
January 1 until February 1, 1996; (2) an interim commercial quota of 
1.00 million lb (0.45 million kg) was established for the period 
February 1 through March 31, 1996; and (3) the red snapper trip limit 
and vessel permit endorsement system was continued 

[[Page 7752]]
through March 31, 1996. These measures were intended to allow a 
controlled commercial fishery for red snapper during the Lenten season, 
when demand for fish is high, prior to implementation of the ITQ system 
on April 1, 1996. (The ITQ system was contained in Amendment 8 to the 
FMP and was published as a final rule on November 29, 1995 (60 FR 
61200). Some paragraphs in that final rule pertaining to the ITQ system 
were recodified in the final rule to implement Amendment 11 (60 FR 
64350, December 15, 1995). Accordingly, this emergency interim rule 
contains references to both of those final rules.)
    In its request for these emergency management measures, the Council 
expressed its intent that should the ITQ system be disapproved by NMFS 
or its implementation be delayed by Congressional action (e.g., 
proposed Congressional moratoriums on ITQ systems), then the commercial 
fishery should remain open until the full annual commercial quota is 
taken under the red snapper trip limit and endorsement system that was 
in effect during 1995.

Delay in the Implementation of the ITQ System

    Because of the furlough of NMFS personnel in late December 1995 and 
early January 1996 and budget limitations under the continuing 
resolution that provides operating funds for the Department of 
Commerce, NMFS is unable to implement the red snapper ITQ system by 
April 1, 1996. As a result of the furlough, NMFS was unable to process 
fishermen's requests for appeals of NMFS' initial determinations 
regarding historical captain status and red snapper landings records. 
Final determinations through the appeals process are essential to 
establish finally who will be initial shareholders in the ITQ system 
and the amounts of their initial shares. In addition, NMFS concluded 
that it would be unreasonable to expect red snapper fishermen to pursue 
their appeals before the Council Appeals Board during February 1996 
when the commercial red snapper fishery is open and fishermen are busy 
with harvesting operations. Under the provisions of Amendment 8 and its 
implementing rule, the appeals process must be completed before NMFS 
can issue red snapper ITQ shares and coupons.

Period of Suspension

    NMFS issues this emergency interim rule, effective initially for 90 
days after its date of publication, as authorized by section 305(c) of 
the Magnuson Act. Should NMFS and the Council agree, this emergency 
interim rule may be extended for an additional period of 90 days. If 
the commercial quota for red snapper, currently 3.06 million pounds 
(1.39 million kg), has not been taken during the initial 90 days, such 
agreement and extension are expected. Since the entire commercial quota 
for 1996 is likely to have been taken under this emergency interim 
rule, or extension thereof, the earliest date that the ITQ system could 
begin operation is January 1, 1997 (beginning of a new fishing year), 
unless the 1996 commercial quota is increased through a separate 
regulatory action and the appeals process is completed.

Red Snapper Trip Limit and Endorsement System

    This rule extends for the emergency period the management regime 
for red snapper that was in effect for the 1995 fishing year and was 
previously extended by the January 2 emergency rule. Specifically, 
landings of red snapper are limited to 2,000 lb (907 kg) per trip or 
day for vessels with red snapper endorsements on their reef fish 
permits; other reef fish permitted vessels are limited to 200 lb (91 
kg) per trip or day. These measures are intended to spread out harvest 
over a longer period of time and avoid the negative social and economic 
impacts and potentially dangerous fishing conditions that would result 
from a derby fishery of very short duration. Monitoring of landings 
under an uncontrolled derby fishery would be difficult, increasing the 
likelihood that the quota would be exceeded. This might result in 
adverse effects on the recovery of the overfished red snapper resource. 
Red snapper permit endorsements that were in effect on December 31, 
1995, have been reissued by NMFS for the 1996 fishing year.

Compliance with NMFS Guidelines for Emergency Rules

    This emergency interim 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 interim 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

    The furlough of NMFS personnel and curtailed agency operating funds 
under temporary funding bills (``continuing resolutions''), and the 
effects on NMFS' ability to carry out the provisions of Amendment 8 and 
its implementing rule, were unforeseen. As a result of the furlough, 
the Southeast Regional Office was unable to process the requests for 
appeals of its initial determinations regarding historical captain 
status and landings records in a timely manner. The appeals process 
must be completed before NMFS can issue red snapper ITQ shares and 
coupons.

Serious Management Problems in the Fishery

    NMFS believes that this emergency interim rule is necessary to 
address serious management problems with the fishery, which if 
unaddressed, could cause significant adverse social and economic 
impacts on fishery participants.
    If the combined emergency actions of the immediate availability of 
the entire 1996 red snapper commercial quota and the suspension of the 
ITQ system are not taken, then the commercial fishery would have to be 
closed for an indefinite period after the interim 1.00-million lb 
(0.45-million kg) quota is harvested. Since this closure would extend 
significantly beyond April 1, 1996, it would have severe negative 
economic effects, particularly for commercial fishermen who had planned 
to participate in the fishery under the ITQ program commencing April 1.
    Making the entire 1996 red snapper commercial quota immediately 
available for harvest under the trip limit and endorsement system has 
the effect of returning the red snapper management regime for this year 
to the regime that was in place from 1993 through 1995 under provisions 
of the FMP. This regime released the entire annual commercial quota at 
the start of the fishing season, which was timed to ensure that the 
fishery was open during Lent. The fishery remained open, under the 
vessel permit endorsement and trip limit program, until the quota was 
caught (usually sometime in April of each year). This management 
approach, while still presenting fishery problems intended to be 
addressed through the ITQ system, was based on the Council's and NMFS' 
determination that it offered greater social and economic benefits than 
provided by a split season or by a less restrictive harvest rate. The 
expected benefits of this emergency rule are the same as those intended 
from the 

[[Page 7753]]
previous management regime; they are described as follows.
    Traditionally, consumer demand for fresh red snapper is 
significantly higher during the Lenten season (February through March) 
than the rest of the year. The result is that the prices to fishermen 
for their catch are higher at this time than later in the year. 
Consequently, gross revenues to fishermen from taking the remaining 
commercial quota now are significantly higher (although difficult to 
quantify) than if these fish were caught later this year. As such, 
fishermen would suffer substantial economic loss if they were unable to 
continue fishing during this early spring period.
    A continuous commercial red snapper season in the Gulf in recent 
years has avoided or minimized market disruptions in the supply of 
fresh, high quality, fish. In the past, these market disruptions in the 
supply of fresh fish have been shown to have negative effects on 
fishermen's incomes. For example, without a steady supply of fresh 
fish, dealers turn to cheaper, frozen imports to satisfy the consumer 
demand; the result can include temporarily depressed prices and short-
term losses of market share for fresh fish until the dealers exhaust 
their inventories of frozen product. Also, an unstable domestic supply 
of red snapper usually results in wider fluctuations in ex-vessel 
prices for the same quality of product.
    Another benefit of a continuous season is minimizing the time and 
economic costs to fishermen associated with their changing fisheries. 
For example, if the red snapper fishery is opened, closed, and then 
reopened, it would require additional effort and costs for vessel 
owners to change fishing gear, related supplies, and crew each time 
they entered or left the snapper fishery. Also, since the red snapper 
fishery is considered more lucrative than most of the alternative 
fisheries, fishermen would make every effort to reenter this fishery 
when it opens, even after Lent. During a disrupted red snapper season, 
there are added difficulties of finding and keeping experienced, 
reliable crew. In summary, these additional costs/efforts required to 
fish for red snapper during a disrupted season can be particularly 
burdensome for a given vessel owner.
    Finally, a discontinuous red snapper commercial fishery with a 
reopening during late spring/early summer would require fishermen to 
forego their normal deeper water fisheries during that time (e.g., 
tilefish, snowy grouper, and tuna). In order to make a livelihood, most 
fishermen participate in several fisheries during the course of the 
year, and accordingly follow long established seasonal patterns of 
changing fisheries. The red snapper fishery is more readily prosecuted 
in late winter/early spring because the fish are located in near-shore, 
shallower water areas, where they are more concentrated than later in 
the year. There are also distinct safety benefits of being able to fish 
near shore during the bad weather that is common in winter and early 
spring. Other fisheries, particularly the deep water grouper fishery, 
are more readily prosecuted during late spring/early summer when 
weather conditions are more consistent and relatively better. A split 
commercial red snapper season during 1996 would disrupt these 
traditional fishing patterns without any compensatory benefits.
    Without the red snapper endorsement system, which includes vessel 
trip limits, permitted vessels would have no restrictions on landing 
levels. This would result in a derby fishery of very short duration. 
Monitoring of landings under these conditions would be difficult, 
increasing the likelihood that the quota would be exceeded. NMFS is 
concerned that this would adversely impact stock recovery. In addition, 
fishermen would suffer significant economic losses due to lower ex-
vessel prices, as occurred in fishing years before the endorsement and 
trip limit provisions were implemented. To avoid these problems, this 
emergency interim rule continues the trip limits, which will constrain 
vessel landings to the commercial quota, provide for better prices to 
fishermen, and increase the short-term economic yield in the fishery.

Immediate Benefits

    The immediate benefits of the emergency interim rule greatly 
outweigh the value of prior notice and opportunity for public comment 
which would occur under normal rulemaking.

Effect of this Emergency Interim Rule on Existing Regulations

    The emergency interim rule published on January 2, 1996 (61 FR 17) 
is superseded by this emergency interim rule.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that this rule is necessary to respond to an emergency 
situation and is consistent with the Magnuson Act and other applicable 
law.
    The AA finds that failure to implement the actions in this 
emergency interim rule would result in negative social and economic 
impacts described above and lead to fishing under potentially dangerous 
conditions. In addition, the uncontrolled harvest that would occur 
without these actions could contribute to overfishing of red snapper. 
The foregoing constitutes good cause to waive the requirement to 
provide prior notice and the opportunity for public comment, pursuant 
to authority set forth at 5 U.S.C. 553(b)(B), as such procedures would 
be contrary to the public interest. Similarly, the need to implement 
these measures in a timely manner to address the economic emergency and 
public safety considerations constitutes good cause under 5 U.S.C. 
553(d)(3) to waive the 30-day delay in effectiveness.
    This emergency interim rule has been determined to be significant 
for purposes of E.O. 12866, and has been reviewed and cleared by the 
Office of Management and Budget.
    This emergency interim rule is exempt from the procedures of the 
Regulatory Flexibility Act because this rule is not required to be 
issued with prior notice and opportunity for public comment.

List of Subjects in 50 CFR Part 641

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: February 21, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 641 is amended 
as follows:

PART 641--REEF FISH FISHERY OF THE GULF OF MEXICO

    1. The authority citation for part 641 continues to read as 
follows:

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


Secs. 641.1,  641.4, 641.5, 641.7, 641.10, 641.24 [Amended]

    2. The April 1, 1996, effective date of the following amendments is 
delayed indefinitely:
    a. In Sec. 641.1, the revision of paragraph (b), published November 
29, 1995 (60 FR 61206).
    b. In Sec. 641.4, the revision to the third sentence of paragraph 
(i), published November 29, 1995 (60 FR 61207); and the revision to the 
first sentence of paragraph (a)(4) and the addition of paragraph (o), 
published December 15, 1995 (60 FR 64354).
    c. In Sec. 641.5, redesignation of paragraph (d)(3) as paragraph 
(d)(4), revision of paragraph (d)(2), and addition of paragraph (d)(3), 
published November 29, 1995 (60 FR 61207).

[[Page 7754]]

    d. In Sec. 641.7, revisions of paragraphs (g), (r), and (bb), 
published November 29, 1995 (60 FR 61207) and the superseding revisions 
published December 15, 1995 (60 FR 64354); and addition of paragraphs 
(ff) through (kk), published November 29, 1995 (60 FR 61207). [Note: 
The first revision to 641.7(bb) published on November 29, 1995 became 
effective January 1, 1996, and remains in effect.]
    e. In Sec. 641.10, addition of introductory text and paragraphs (a) 
and (b), published November 29, 1995 (60 FR 61207)
    f. In Sec. 641.24, redesignation of paragraphs (a)(2) and (a)(3) as 
paragraphs (a)(3) and (a)(4), respectively, revision of the reference 
in newly redesignated paragraph (a)(4), and addition of paragraph 
(a)(2), published on November 29, 1995 (60 FR 61209).
    3. In Sec. 641.7, paragraph (qq) is removed and paragraphs (nn) 
through (pp) are revised to read as follows. Paragraphs (nn) through 
(pp) are effective through May 29, 1996.


Sec. 641.7  Prohibitions.

* * * * *
    (nn) Exceed the vessel trip or landing limits for red snapper, as 
specified in Sec. 641.31(a) and (b).
    (oo) Transfer a red snapper at sea, as specified in Sec. 641.31(c).
    (pp) Purchase, barter, trade, or sell, or attempt to purchase, 
barter, trade, or sell, a red snapper possessed or landed in excess of 
a trip or landing limit, as specified in Sec. 641.31(d).


Sec. 641.34  [Removed]

    4. Section 641.34 is removed.
    4a. Sections 641.31 through 641.33 are revised to read as follows. 
Sections 641.31 through 641.33 are effective through May 29, 1996.


Sec. 641.31  Red snapper trip limits.

    (a) Except as provided in paragraph (b) of this section, a vessel 
that has on board a valid commercial reef fish permit may not possess 
on any trip or land in any day red snapper in excess of 200 lb (91 kg), 
whole or eviscerated.
    (b) A vessel that has on board a valid commercial reef fish permit 
and a valid red snapper endorsement may not possess on any trip or land 
in any day red snapper in excess of 2,000 lb (907 kg), whole or 
eviscerated.
    (c) A red snapper may not be transferred at sea from one vessel to 
another.
    (d) No person may purchase, barter, trade, or sell, or attempt to 
purchase, barter, trade, or sell, a red snapper possessed or landed in 
excess of the trip or landing limits specified in paragraphs (a) and 
(b) of this section.


Sec. 641.32  Red snapper endorsement.

    (a) As a prerequisite for exemption from the trip limit for red 
snapper specified in Sec. 641.31(a), a vessel for which a commercial 
reef fish permit has been issued under Sec. 641.4 must have a red 
snapper endorsement on such permit and such permit and endorsement must 
be aboard the vessel.
    (b) A red snapper endorsement is invalid upon sale of the vessel; 
however, an owner of a vessel with a commercial reef fish permit may 
transfer the red snapper endorsement to another vessel with a 
commercial reef fish permit owned by the same entity by returning the 
existing endorsement with an application for an endorsement for the 
replacement vessel.
    (c) The provisions of paragraph (b) of this section 
notwithstanding, special provisions apply in the event of the 
disability or death of the owner of a vessel with a red snapper 
endorsement or the disability or death of an operator whose presence 
aboard the vessel is a condition for the validity of a red snapper 
endorsement.
    (1) In the event that a vessel with a red snapper endorsement has a 
change of ownership that is directly related to the disability or death 
of the owner, the Regional Director may issue a red snapper 
endorsement, temporarily or permanently, with the commercial reef fish 
permit that is issued for the vessel under the new owner. Such new 
owner will be the person specified by the owner or his/her legal 
guardian, in the case of a disabled owner, or by the will or executor/
administrator of the estate, in the case of a deceased owner. (Change 
of ownership of a vessel with a commercial reef fish permit upon 
disability or death of an owner is considered a purchase of a permitted 
vessel and Sec. 641.4(m)(3) applies regarding a commercial reef fish 
permit for the vessel under the new owner.)
    (2) In the event of the disability or death of an operator whose 
presence aboard a vessel is a condition for the validity of a red 
snapper endorsement, the Regional Director may revise and reissue an 
endorsement, temporarily or permanently, to the permitted vessel. Such 
revised endorsement will contain the name of a substitute operator 
specified by the operator or his/her legal guardian, in the case of a 
disabled operator, or by the will or executor/administrator of the 
estate, in the case of a deceased operator. As was the case with the 
replaced endorsement, the presence of the substitute operator aboard 
and in charge of the vessel is a condition for the validity of the 
revised endorsement. Such revised endorsement will be reissued only 
with the concurrence of the vessel owner.


Sec. 641.33  Condition of a permit.

    As a condition of a commercial reef fish permit issued under 
Sec. 641.4, without regard to where red snapper are harvested or 
possessed, a vessel with such permit--
    (a) May not exceed the appropriate vessel trip or landing limit for 
red snapper, as specified in Sec. 641.31(a) and (b); and
    (b) May not transfer a red snapper at sea, as specified in 
Sec. 641.31(c).
[FR Doc. 96-4432 Filed 2-23-96; 11:41 am]
BILLING CODE 3510-22-F