[Federal Register Volume 66, Number 205 (Tuesday, October 23, 2001)]
[Proposed Rules]
[Pages 53579-53583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26678]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 011011249-1249-01; I.D. 092701A]


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Petition for Emergency 
Rulemaking for Red Snapper

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

ACTION: Notice of agency decision; denial of a petition for emergency 
rulemaking.

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SUMMARY: NMFS announces the denial of a petition for emergency 
rulemaking for the red snapper fishery in the Gulf of Mexico that was 
filed with the U.S. Department of Commerce by the Texas Shrimp 
Association (TSA). TSA's petition requested emergency rulemaking to 
reduce the 2001 total allowable catch (TAC) in the fishery and to 
shorten the associated recreational fishing season.

FOR FURTHER INFORMATION CONTACT: Phil Steele, telephone 727-570-5305, 
fax 727-570-5583, e-mail [email protected].

SUPPLEMENTARY INFORMATION: TSA petitioned the U.S. Department of 
Commerce to promulgate an emergency rule to reduce the 2001 TAC in the 
directed fisheries for red snapper in the Gulf of Mexico from 9.12 
million lb (MP)(4.14 million kg) to not more than 3 million lb (1.36 
million kg) and to shorten the recreational fishing season as part of 
the TAC reduction. The petition alleged that overfishing has been 
occurring in the fishery and will occur again in 2001 without the 
requested emergency rulemaking. On April 19, 2001, NMFS published a 
notice of receipt of the TSA petition and requested public comments on 
the petition (66 FR 20129). After thorough consideration of the 
petition and of all public comments received, NMFS has denied TSA's 
petition for emergency rulemaking.

Basis for Denial of the Petition

    The TSA petition states that the following are causes of previous 
and continuing overfishing (NMFS responses are provided as 
appropriate):
    (1) TSA asserts that the current definition of ``optimum yield'' 
(OY) in the Fishery Management Plan (FMP) for the Reef Fish Resources 
of the Gulf of Mexico (Reef Fish FMP) does not conform to the more 
rigorous definition of OY required by the Sustainable Fisheries Act 
(SFA) of 1996, which amended the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act).
    Response: The current definition of OY in the Reef Fish FMP is 
``any harvest level which maintains, or is expected to maintain, over 
time a survival rate or biomass into the stock of spawning age to 
achieve at least 20 percent spawning potential ratio (SPR).'' 
Additionally, the Reef Fish FMP currently requires that overfished red 
snapper stocks be restored to a level of 20 percent SPR by 2019. 
However, the Magnuson-Stevens Act and NMFS' National Standard 
Guidelines (NSG) (63 FR 24212; May 1, 1998) require that the Councils 
and NMFS develop new definitions of ``overfishing'' and ``overfished'' 
for managed stocks based on the ability of a stock to produce maximum 
sustainable yield (MSY) on a continuing basis. While NMFS has approved 
proposed definitions of overfishing that are based on static SPR as a 
proxy for fishing mortality rate, definitions of overfished and stock 
rebuilding targets must be biomass-based, as required by the Magnuson-
Stevens Act and the NSG. For overfished stocks, the Magnuson-Stevens 
Act and the NSG require that a recovery plan must be developed to 
restore overfished stocks to the biomass level capable of producing MSY 
on a continuing basis (BMSY).
    NMFS agrees that these Magnuson-Stevens Act (as amended by the SFA) 
and NSG requirements represent a more conservative fishery management 
approach than is reflected in the Reef Fish FMP's current definition of 
overfishing (when a reef fish stock or stock complex is overfished, 
overfishing is defined as harvesting at a rate that is not consistent 
with a program established to rebuild the stock or stock complex to the 
20 percent SPR level), which is estimated to be the minimal

[[Page 53580]]

level needed to prevent future declines in the stock. On November 17, 
1999, NMFS disapproved the Gulf of Mexico Fishery Management Council's 
(Council) red snapper rebuilding targets, as proposed in its Generic 
Sustainable Fisheries Act (SFA) Amendment to the Council's FMPs 
(Generic SFA Amendment), because the Generic SFA Amendment specified a 
fishing mortality-based stock rebuilding target rather than the 
required biomass-based target. Further, the Generic SFA Amendment did 
not estimate the time to rebuild in the absence of fishing mortality, 
as required by the Magnuson-Stevens Act and the NSG. NMFS also 
disapproved the Generic SFA Amendment's proposed SPRs as proxies for 
MSY, OY, and other stock status determination criteria. In conjunction 
with these disapproval actions, NMFS informed the Council that it must 
submit a new red snapper rebuilding plan as soon as possible for agency 
review.
    In order to comply with the requirements of the Magnuson-Stevens 
Act, the Council has recently submitted to NMFS, for Secretarial 
review, a framework action under the Reef Fish FMP that provides for a 
revised red snapper rebuilding plan through 2032. While a final agency 
decision on this proposal has not yet been made, the rebuilding plan 
does contain new biomass-based targets and thresholds, including a 
revised OY and recovery time-frame parameters that, upon preliminary 
review, appear consistent with the Magnuson-Stevens Act, as amended by 
the SFA, and the NSG. The proposed action would institute a red snapper 
31-year rebuilding plan with 5-year interim management goals. The 
rebuilding plan would maintain the current TAC set at 9.12 MP under a 
constant catch scenario for the years 2001-2005, with existing bycatch 
reduction requirements. Thereafter, the plan would shift to a constant 
fishing mortality rate strategy. At that time, a reduction in the red 
snapper TAC is likely, unless other means of reducing bycatch and 
bycatch mortality are more effective than currently anticipated and the 
stock achieves a greater level of rebuilding than currently 
anticipated. Under the constant fishing mortality rate strategy, TAC is 
set as a constant proportion of the stock that can be removed that 
would allow the stock to rebuild within the required time period. As 
stock size increases, so can the TAC (i.e., as the stock size 
approaches BMSY, TAC will be approaching OY). Because red snapper are 
such a long-lived species and the fishery is in need of stability in 
all sectors, the rebuilding plan aspires to make TAC adjustments, as 
necessary, at 5-year intervals. Of course, section 304(e)(7) of the 
Magnuson-Stevens Act requires the Secretary of Commerce (Secretary) to 
review independently the stock rebuilding plan itself in no more than 
2-year intervals to ensure adequate progress toward ending overfishing 
and rebuilding the affected stock. The framework procedure under the 
Reef Fish FMP currently contemplates annual review of the status of 
managed fish stocks. If the Secretary's independent review, pursuant to 
section 304(e)(7), results in a finding that the rebuilding plan is not 
making adequate progress, the Secretary is required to notify the 
Council immediately and recommend appropriate further conservation and 
management measures (see section 304(e)(7)(b) of the Magnuson-Stevens 
Act). In light of the Council's recent proposal for a revised red 
snapper stock rebuilding plan, a reduction in TAC now, based on the 
current Reef Fish FMP's OY definition, would be premature.
    (2) TSA asserts that NMFS' scientific studies indicate that bycatch 
reduction devices (BRDs) required in shrimp trawls in the Exclusive 
Economic Zone (EEZ) of the Gulf of Mexico west of Cape San Blas, 
Florida, have reduced juvenile red snapper mortality by 40 percent or 
less instead of the 50- to 60-percent reduction necessary as a basis 
for the present TAC of 9.12 MP. Further, TSA asserts that NMFS and the 
Council have greatly exaggerated the importance (positive impact) of 
bycatch reduction for rebuilding the red snapper stock; and
    (3) TSA asserts that recent scientific information presented to the 
Council's Reef Fish Stock Assessment Panel (RFSAP) (a Council 
scientific advisory committee) indicates that the overfished condition 
of the red snapper fishery is a result of excessive fishing pressure by 
the directed fisheries, in particular the recreational sector of the 
fishery, and not a result of bycatch mortality associated with shrimp 
harvest.
    Response: The RFSAP again endorsed the red snapper stock rebuilding 
plan under consideration by the Council and currently under review by 
NMFS. The RFSAP did not alter its long-standing opinion that bycatch 
reduction in the shrimp fishery is necessary to rebuild the red snapper 
stock. The combined effects of excessive fishing mortality in the 
directed fishery and bycatch mortality of juvenile red snappers in the 
shrimp fishery have all contributed to the overfished status of red 
snapper in the Gulf of Mexico. Red snapper stock assessments reviewed 
by the RFSAP, dating back to 1990, as well as the Congressionally 
Mandated Red Snapper Peer Review (1997), have not only indicated that 
fishing mortality in the directed fishery must be reduced, but also 
that the Gulf red snapper stock will not recover from its overfished 
condition without a significant reduction in bycatch mortality of 
juvenile red snappers associated with shrimp trawling. In fact, the 
magnitude of the shrimp fishery's bycatch of juvenile red snappers far 
outweighs the impacts of TAC adjustments on rebuilding the red snapper 
stock. The best available scientific information, as represented by 
continuing scientific stock assessments and various scientific peer 
reviews over recent years during which the 9.12 MP TAC has been in 
place, consistently demonstrates that even if the red snapper TAC were 
set at zero, BRDs and other measures to address bycatch mortality of 
juvenile red snappers in the shrimp fishery would still be required in 
order to rebuild this fish stock. As described earlier, NMFS is 
currently reviewing the Council's stock rebuilding plan, which will 
likely result in future reductions in the red snapper TAC. However, it 
appears that an immediate TAC reduction would achieve only limited 
short-term conservation benefits not justified in the face of resulting 
significant and immediate adverse impacts on the red snapper fishery.
    A 40-percent reduction in juvenile red snapper bycatch mortality in 
the Gulf shrimp fishery has been achieved, as substantiated by data 
that NMFS submitted to the Council (Nichols, 1990; Nichols & Pellegrin, 
1992), and that the RFSAP reviewed. Further, NMFS biologist Dr. Scott 
Nichols, at the September 20-24, 1999, RFSAP meeting, and at the 
October 27, 1999, meeting of the Council's Scientific and Statistical 
Committee, stated that, excluding the now illegal configuration of a 
fisheye BRD covered by the trawl net's elephant ear, fisheye BRDs are 
currently attaining a 40-percent reduction in fishing mortality of 
juvenile red snappers and that a 50-percent reduction appears feasible. 
Additionally, NMFS biologist Dr. John Watson, in statements to the 
Council at its November 8-12, 1999, and November 13-16, 2000, meetings, 
indicated that a 50-percent bycatch reduction could be achieved from 
fisheye BRDs. NMFS believes that further reductions are possible with 
improved BRD technology. Tests conducted by NMFS have already 
demonstrated that prototype BRDs can reduce bycatch mortality of red 
snapper

[[Page 53581]]

in shrimp trawls by as much as 70 percent.
    BRDs have significantly reduced shrimp trawl bycatch mortality of 
red snapper and other species in the western Gulf. However, National 
Standard 9 requires that bycatch be reduced to the extent practicable 
and the Council must continue to review possible measures that would 
achieve higher levels of bycatch reduction and minimize bycatch 
mortality. NMFS has encouraged the Council to take additional actions 
throughout the Gulf to reduce shrimp trawl bycatch. Such actions could 
include extending the requirement for BRDs into Federal waters east of 
Cape San Blas, FL; effort reduction in the shrimp fishery; closed 
areas; or seasonal closures. Additionally, monitoring of bycatch in the 
shrimp fishery must be improved. This could be accomplished with vessel 
permits (as proposed under Amendment 11 to the FMP for the Shrimp 
Fishery of the Gulf of Mexico (Shrimp FMP)), mandatory observers, and 
mandatory logbooks.
    Consultants for TSA presented scientific information regarding the 
preceding TSA assertion (No. 3) at the RFSAP meeting held at the NMFS 
Southeast Fisheries Science Center (SEFSC) on September 28-October 1, 
2000. The RFSAP considered three presentations in the context of the 
proposed revised red snapper rebuilding plan: Two were by the TSA 
consultants, Mr. Gazey and Dr. Gallaway, and one was by Dr. Shipp. The 
RFSAP concluded that ``the presentations by Mr. Gazey, Dr. Gallaway, 
and Dr. Shipp do not affect our previous endorsement of the rebuilding 
plan.''
    (4) TSA asserts that the recreational sector of the directed 
fishery continues to exceed its annual quota under the present season 
opening and closing dates.
    Response: While NMFS recognizes that quota overruns in the 
recreational fishery have occurred in the past, the Council and NMFS 
have taken steps to rectify this situation. In December 1999, at the 
Council's request, NMFS issued an interim rule to implement management 
measure changes for the red snapper fishery to address quota overages 
in the recreational sector and, thus, reduce overfishing (64 FR 71056). 
The interim rule established a Federal recreational season from April 
21 through October 31. Also, the rule reduced fishing effort that would 
have occurred in state waters after the closure of the Federal season 
under the regulations in effect prior to implementation of the interim 
rule. These actions appear to have been successful, as preliminary data 
for the 2000 fishing year indicate that the recreational red snapper 
harvest was approximately 320,000 pounds under the allowable quota 
(4.47 MP). The interim rule measures were implemented on a permanent 
basis under an approved regulatory amendment, pursuant to the Reef Fish 
FMP's framework procedure, through a final rule issued August 17, 2000 
(65 FR 50158). NMFS' goal is to continue monitoring the recreational 
fishery quota and to take additional action as warranted. Further 
discussion of NMFS and Council efforts to structure a red snapper 
recreational fishing season that best prevents recreational fishery 
quota overruns is contained in the response to public comment number 2 
(see below).
    (5) TSA asserts that NMFS is significantly underestimating fishing 
effort in the recreational sector, which allows that sector to harvest 
red snapper in excess of its share of the TAC; and
    (6) TSA asserts that NMFS has failed to make a reduction in the 
recreational sector's share of the TAC to account for these excessive 
harvests.
    Response: The best scientific information available indicates that 
effort in the red snapper charter vessel sector, the largest component 
of the recreational fishery, has not been underestimated, and that 
charter vessels currently account for approximately 42 percent of the 
total annual recreational harvest of red snapper in the Gulf of Mexico. 
NMFS has recently adopted new and more precise and accurate 
methodologies for estimating the recreational red snapper harvest that 
were developed cooperatively by NMFS and the Gulf States Marine 
Fisheries Commission. This is part of a continuing effort by NMFS to 
improve data collection for the recreational sector. There is no 
evidence to suggest that recreational landings have been 
underestimated.

Comments and Responses

    NMFS received 1, 567 comments addressing this petition. They are 
summarized and responded to here:
    Comment 1: Fifteen hundred and sixty three comments were received 
that opposed the petition for emergency rulemaking submitted by TSA 
including any reduction in the TAC or shortening of the 2001 
recreational fishing season.
    Response: The best available scientific information indicates that 
the 9.12 MP (4.14 million kg) TAC for 2001 may slow the recovery in the 
early part of any stock rebuilding program but would not jeopardize 
recovery of the stock consistent with the rebuilding requirements of 
the Magnuson-Stevens Act, particularly if greater reductions in bycatch 
mortality are achieved, as expected. However, an immediate reduction in 
TAC or shortening of the recreational fishing season for red snapper 
would have serious adverse economic effects upon participants in the 
fishery.
    Comment 2: Included in the group of comments opposed to the TSA 
petition was a comment from an environmental group expressing its 
concerns regarding NMFS' regulation of the red snapper recreational 
fishing season and the history of TAC overruns in this fishery. 
Further, this group requested that NMFS close the recreational and 
commercial red snapper fisheries, once their allocations are met, based 
on available real-time data.
    Response: The Magnuson-Stevens Act requires that the Gulf of Mexico 
red snapper recreational fishery be closed when its quota is reached. 
To comply with this requirement, NMFS works jointly with the Council to 
implement management measures and establish closure dates that, based 
upon the best available scientific information, are likely to result in 
annual catches that approximate the quota, within the margin of error 
of the harvest projections. NMFS uses a computer simulation model to 
assess the future status of the red snapper stock. The model integrates 
estimates of stock abundance with fishing effort to project how many 
fish will be caught for various time periods. This projection assumes 
that the current year's fishing effort will be similar to that of 
previous years. In-season data are not used to establish or adjust 
closure dates; instead, a closure date is based entirely on projections 
of the model used. This is the only practicable method of setting 
closure dates because the NMFS Marine Recreational Fishery Statistics 
Survey (MRFSS) is not designed for real-time quota monitoring. MRFSS 
data are available in 2-month blocks, referred to as waves, and 
landings are not available until 5 weeks after the end of a wave. Thus, 
there is a time lag of at least 3 months before even preliminary MRFSS 
landings data can be evaluated; consequently, NMFS cannot determine the 
closure date based on real-time fishery data. In projecting 
recreational fishery harvest rates and closure dates, NMFS attempts to 
approximate the quota in the long term, while recognizing that annual 
variations in the catch are inevitable. Based on the last two years' 
monitoring, the projections appear accurate since no overruns occurred.
    Comment 3: Four comments were received in support of the petition,

[[Page 53582]]

including two from TSA that requested an immediate reduction in TAC to 
no more than 3 MP (1.36 million kg) and a shortening of the 2001 
recreational fishing season.
    Response: NMFS has reviewed the administrative records and court 
decisions from prior litigation on the issue of the red snapper TAC. 
NMFS has also reviewed more recent information regarding the conduct of 
the red snapper fishery, as discussed above, including the petition 
received on behalf of TSA and the public comments received on the 
petition. NMFS disagrees with TSA that the law or the present 
circumstances in the red snapper fishery require an immediate reduction 
in TAC. As described below, this is because (a) the Council's proposed 
red snapper stock rebuilding plan appears to comply with the Magnuson-
Stevens Act requirements to end overfishing; (b) the deployment of BRDs 
in the shrimp fishery appears to be more effective than TAC adjustments 
in rebuilding the red snapper stock; (c) NMFS believes that greater 
than current levels of reduction in bycatch mortality of juvenile red 
snapper in shrimp trawls are attainable; and (d) the shrimp fishery 
does not appear to be subject to any disproportionate regulatory 
impacts compared to the directed red snapper fisheries.
    For these reasons, NMFS disagrees with TSA's assertions, the 
majority of which have been raised previously by TSA and refuted by 
NMFS (see Florida Wildlife Federation, et al. v. Daley, Case No. 
4:98cv101RH (N. D. Fla.); affirmed Case No. 99-14747c (11th Circuit 
Court of Appeals); Texas Shrimp Association v. Daley, Case No. 
4:000v20RH (N. D. Fla,); affirmed Case No. 00-12328 (11th Circuit Court 
of Appeals). As TSA, through its legal counsel, recently noted, 
``nothing in the petition raised any novel questions'' (see July 11, 
2001, letter from TSA Counsel to Dr. William T. Hogarth). Rather, TSA 
asserts that the agency is making decisions based on political pressure 
rather than on scientific information and the Magnuson-Stevens Act 
(id.).
    The best available scientific information affirms that the status 
quo TAC of 9.12 MP (4.14 million kg) is compatible with the stock 
rebuilding requirements of the Magnuson-Stevens Act, provided that 
expected bycatch reduction levels are met, that harvests will not 
exceed quotas, and that future recruitment, on average, will increase 
as spawning stock biomass increases. Additionally, the Council has 
submitted a framework action under the Reef Fish FMP to NMFS for 
approval and implementation that would establish a revised red snapper 
rebuilding plan through 2032. The plan contains new biomass-based 
targets and thresholds, including a revised OY and recovery time-frame 
parameters that are consistent with the Magnuson-Stevens Act, as 
amended by the SFA, and the NSG. The proposed action would institute a 
red snapper 31-year rebuilding plan with 5-year interim management 
goals. The rebuilding plan would maintain the current TAC set at 9.12 
MP under a constant catch scenario for the years 2001-2005, with 
existing bycatch reduction requirements. Thereafter, the plan would 
shift to a constant fishing mortality rate strategy, and the status of 
the stock would be reviewed every 5 years to evaluate the need for 
additional bycatch reductions or adjustments in TAC. Under the constant 
fishing mortality rate strategy, TAC is set as a constant proportion of 
the stock that can be removed that would allow the stock to rebuild 
within the required time period. As stock size increases, so can the 
TAC (i.e., as the stock size approaches BMSY, TAC will be 
approaching OY).
    The best available scientific information, as represented by 
continuing scientific stock assessments and various scientific peer 
reviews over the recent years during which the 9.12 MP TAC has 
prevailed, consistently demonstrates that even if the red snapper TAC 
were set at zero, BRDs and other measures to address bycatch mortality 
of juvenile red snappers in the shrimp fishery would still be required 
in order to rebuild this stock. Although the Court in the BRD 
litigation held that a sufficient nexus existed between the need for 
BRDs and the red snapper TAC for purposes of conferring legal standing 
upon the shrimp industry so they could challenge the BRD requirement, 
elsewhere in the opinion, as noted above, the Court acknowledged that 
shrimp trawlers' severe effects upon the red snapper population is 
beyond dispute (Order Denying Petitions Challenging Regulations, at 7, 
41). The magnitude of the impacts of the shrimp fishery's bycatch of 
juvenile red snappers far outweighs the impacts of TAC adjustments on 
rebuilding the red snapper stock. However, the current and foreseeable 
future regulatory burden for the shrimpers is far less than that of the 
red snapper fishery participants.
    Section 304(e)(4)(A) of the Magnuson-Stevens Act explicitly states 
that, in pertinent part, fishery management plans, plan amendments, or 
proposed regulations for an overfished fishery shall ``specify a time 
period for ending overfishing.'' The Council's proposed red snapper 
stock rebuilding plan, inter alia, would do just that, while 
maintaining stability in the fishery. As Judge Hinkel noted in the 
decision upholding the BRD requirement, which was affirmed on appeal, 
rejecting one viewpoint in favor of another, when weighing competing 
scientific opinions and making policy determinations, is not an abuse 
of discretion (see Order Denying Petitions Challenging Regulations, 
Case No. 4:98cv101-RH, N. D. Fla, at 22). Further, the Court noted that 
uncertain scientific evidence does not preclude making a decision 
based, in part, upon reasonable expectations (id. at 43).
    NMFS believes that greater reductions in bycatch mortality of 
juvenile red snapper in shrimp trawls are attainable, and further 
believes that this expectation is reasonable based upon the following 
considerations. First, the Jones-Davis BRD already by far exceeds the 
necessary level of bycatch reduction, demonstrating concretely that, in 
fact, such reduction is attainable. Although the Jones-Davis BRD is not 
widely used, due in large part to greater shrimp loss rates, given its 
outstanding performance at reducing bycatch mortality, it may be 
practicable to expand its usage, particularly if shrimp loss rates can 
be reduced. Second, the level of reduction in bycatch mortality for the 
more widely used BRD designs has steadily improved since the BRD 
requirement became effective. Initially, reduction levels among those 
BRDs measured 27 percent, but current levels are between 40 percent and 
50 percent. Some of this improvement has resulted from minor 
modifications to the gear arising from actual use, such as adjusting 
the ``elephant ear'' flap in the shrimp trawls. Finally, NMFS is in the 
process of revising its BRD certification protocol following its 
experience since the original protocol was implemented several years 
ago. Information from BRD users as well as the Gulf and South Atlantic 
Fisheries Foundation has indicated the need for greater flexibility in 
the provisions of the BRD certification protocol. NMFS expects that 
once these revisions are effected, more efficient and better performing 
BRD designs will be developed and certified, resulting in greater 
reductions of bycatch and bycatch mortality of red snapper.
    These developments show that reductions in red snapper bycatch 
mortality based on technology are feasible and likely. However, 
technological advances are not the only means under consideration for 
reducing red snapper bycatch in the shrimp fishery. In addition to 
technological considerations, the Council is

[[Page 53583]]

developing Amendment 10 to its Shrimp FMP to further address general 
bycatch issues. Among the alternative actions included in Amendment 10 
are those that would require the use of BRDs east of Cape San Blas, FL. 
Although the original BRD requirement exempted this area because of 
minimal red snapper occurrence in that area, more recent information 
(Schirripa & Legault, 1999) demonstrates a significantly increased 
occurrence of red snapper there. The objective of Amendment 10 is not 
limited to reducing bycatch and bycatch mortality of red snapper, but 
it now appears that red snapper bycatch mortality would be reduced 
somewhat, along with that of other species, if such a geographic 
expansion in the use of BRDs were implemented. Amendment 10 also 
contains other action alternatives, such as those based on seasonal and 
areal adjustments that, in the course of addressing bycatch issues in a 
general sense, will clearly effect some level of reduction in red 
snapper bycatch mortality.
    In addition to Amendment 10, further regulation of the Gulf shrimp 
fishery to address red snapper issues may become necessary. For 
example, the Council has proposed, under its Reef Fish FMP's framework 
action, a 31-year rebuilding program for red snapper. A fundamental 
element of that proposal is the achievement of greater reductions in 
red snapper bycatch mortality; however, the plan also provides for the 
contingency of not achieving that goal. It seems clear that without 
greater red snapper bycatch mortality reductions, both a future 
reduction in the red snapper TAC and further regulation of the shrimp 
fishery in the EEZ are likely. The latter possibility appears to form 
the basis for TSA's assertions that the Council's and NMFS' management 
of the red snapper fishery is somehow unfair to shrimpers. These claims 
were addressed in prior litigation, and the Court then wrote that 
although the BRD requirement placed serious costs on the shrimp 
industry, the directed red snapper fishery had for years been subject 
to numerous restrictions, including increased minimum fish size limits, 
TAC limits, and reduced bag limits and trip limits. The judge also 
noted that the shrimp industry had, until recently, not only been 
required to do very little to address bycatch, but actually enjoyed a 
statutory prohibition against regulations addressing the bycatch issue. 
In an earlier footnote within that Court opinion, the Court stated that 
the specific and severe effects upon the red snapper population from 
shrimp trawlers is ``beyond dispute.'' The judge concluded that 
imposing the BRD requirement and attendant costs, even with a TAC at 
9.12 MP, was not only not an abuse of agency discretion or inequitable, 
but ``perhaps required'' (Order Denying Petitions Challenging 
Regulations, Case No. 4:98cv101-RH, at 7, 23, 24, 25, 43-46).
    These conclusions are still applicable today. The Council has 
submitted Amendment 11 to the Shrimp FMP, which would establish 
mandatory Federal permits for the shrimp fishery, for Secretarial 
review, approval, and implementation. However, this is the only 
additional regulation currently proposed for the shrimp fishery. The 
Gulf shrimp fishery is the only federally managed fishery in the 
southeastern United States not subject to a permit requirement. The 
Federal shrimp permit would be available without any qualifying 
criteria, and the permit requirement would constitute only a minimal 
burden on shrimp fishermen. The red snapper commercial and recreational 
fisheries, however, are now and have long been subject to a much more 
complex and burdensome regulatory program. In particular, since entry 
of the legal opinion referred to above, the recreational red snapper 
fishing season has been significantly reduced in order to comply with 
the statutory quota provisions enacted under the SFA in 1996. While TSA 
seems to overlook this development, one benefit is that the quota 
appears to have eliminated the recreational overruns about which TSA 
complains. If approved and implemented, Shrimp FMP Amendment 10, 
discussed above, is likely to result in additional regulations for the 
Gulf shrimp fishery. However, even if the most restrictive of the 
amendment's alternative actions under consideration were implemented, 
they would not necessarily produce an inequitable result for shrimp 
fishermen.
    The NSG make clear that under National Standard 4 an allocation of 
fishing privileges may impose a hardship upon one group if it is 
outweighed by the total benefits received by another group or groups 
(50 CFR 600.325 (c)(3)(i)). Although this guidance generally applies to 
a single fishery, in this instance, the red snapper stock is more 
significantly affected by the shrimp fishery than by the directed red 
snapper fishery. The situation is clearly analogous to an allocation of 
fishing privileges within a single fishery.
    In light of the foregoing, it appears that additional regulation of 
the shrimp fishery would not result in a disproportionate regulatory 
impact upon shrimpers. Further, rebuilding the red snapper stock and 
minimizing shrimp fishery bycatch is mandated by law. Clearly, 
reductions in shrimp trawl bycatch mortality would benefit red snapper 
fishery participants. However, even with additional shrimp regulations 
and maintenance of a 9.12 MP TAC for red snapper, the overall result 
would not leave the shrimp fishery with a greater regulatory burden 
than the red snapper fishery.
    Even if the shrimp fishery does incur additional regulatory 
burdens, any hardships for the shrimpers will likely be far outweighed 
by the overall benefits of ending overfishing of red snapper and 
restoring the red snapper fishery. Conversely, immediately lowering the 
red snapper TAC, as suggested by TSA, would not result in any apparent 
benefit to the shrimp industry.
    Based on the discussion above, since lowering the red snapper TAC 
would not relieve either the biological need nor the legal requirement 
to address the bycatch and bycatch mortality of juvenile red snappers 
in shrimp trawls, and since such a TAC change would severely disrupt 
and adversely impact the red snapper fishery, the National Marine 
Fisheries Service has denied the TSA petition.

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

    Dated: October 16, 2001.
John Oliver,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 01-26678 Filed 10-18-01; 1:37 pm]
BILLING CODE 3510-22-S