[Federal Register Volume 73, Number 58 (Tuesday, March 25, 2008)]
[Rules and Regulations]
[Pages 15674-15676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-5939]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 970730185-7206-02]
RIN 0648-XG40


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Closure of the 2008 Gulf of 
Mexico Recreational Fishery for Red Snapper

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

ACTION: Temporary rule; closure.

-----------------------------------------------------------------------

SUMMARY: NMFS closes the recreational fishery for red snapper in the 
exclusive economic zone (EEZ) of the Gulf of Mexico (Gulf). NMFS has 
determined this action is necessary to prevent the recreational fishery 
from exceeding its quota for the fishing year. This closure is 
necessary to prevent overfishing of Gulf red snapper.

DATES: The closure is effective 12:01 a.m., local time, August 5, 2008, 
through December 31, 2008, the end of the current fishing year. The 
recreational fishery will reopen on June 1, 2009, the beginning of the 
2009 recreational fishing season.

FOR FURTHER INFORMATION CONTACT: Dr. Steve Branstetter, telephone 727-
551-5796, fax 727-824-5308, e-mail [email protected].

SUPPLEMENTARY INFORMATION: The red snapper 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.

Background

    The final rule implementing the approved actions in joint Amendment 
27 to the FMP and Amendment 14 to the Fishery Management Plan for the 
Shrimp Fishery of the Gulf of Mexico (Amendment 27/14) (73 FR 5117, 
January 29, 2008) is intended to end overfishing and rebuild the red 
snapper stock in the Gulf of Mexico. In part, the final rule reduced 
the 2008 recreational quota for red snapper to 2.45 million lb (1.11 
million kg). To constrain the recreational fishery's harvest to the 
quota, the recreational daily bag limit was revised to two fish per 
person and the daily bag limit for captains and crews of for-hire 
vessels was reduced to zero. The recreational minimum size limit 
remained at 16 inches (40.6 cm) total length (TL). The Federal red 
snapper recreational fishing season was reduced to June 1 through 
September 30. These recreational management measures, in combination, 
were projected to constrain red snapper harvest to the 2.45 million lb 
(1.11 million kg) recreational quota based on the assumption all five 
Gulf states would adopt compatible regulations.
    Previously, in 2007, NMFS implemented temporary rules (72 FR 15617, 
April 2, 2007; 72 FR 54223, September 24, 2007) to initiate reductions 
in harvest and fishing mortality on the overfished red snapper stock 
until the more permanent regulations above could be established. The 
temporary regulations included a recreational quota of 3.185 million lb 
(1.445 million kg), a two-fish bag limit, a zero-fish bag limit 
captains and crews of for-hire vessels, a 16-inch (40.6 cm) TL minimum 
size limit, and a recreational fishing season of April 21 through 
October 31. These harvesting restrictions were intended to have a 50-
percent probability of constraining recreational harvest to the 
recreational quota, and also assumed implementation of compatible state 
regulations throughout the Gulf.
    Substantial quantities of red snapper are harvested by the 
recreational fishery from state waters. This is particularly true for 
Florida and Texas where state jurisdiction extends 9 nautical miles. 
State water recreational harvest of red snapper is much more limited 
off Mississippi, Alabama, and Louisiana, in part due to their more 
limited 3 nautical-mile jurisdiction. Reported recreational red snapper 
landings in state waters off the west coast of Florida in 2007 
represented more than 25 percent of the total Gulf recreational red 
snapper landings, and more than 50 percent of the total recreational 
landings for the state. Although the quantity of recreational red 
snapper landed from state waters off Texas is only approximately 4.5 
percent of the total recreational quota, landings from state waters 
constitute more than 30 percent of Texas' total recreational landings. 
During 2007, the Texas Parks and Wildlife Department (TPWD) kept Texas 
state waters open year-round compared to the restricted Federal season, 
and anglers were allowed a daily bag limit of four fish compared to the 
two-fish bag limit in Federal waters. The Florida Fish and Wildlife 
Conservation Commission (FWC) maintained a fishing season of April 15 
through October 31 during 2007 in its state waters, and a four-fish 
recreational bag limit compared to a two-fish bag limit in Federal 
waters. These incompatible regulations in state waters contributed to a 
total recreational harvest that was estimated to exceed the 
recreational red snapper quota by approximately 1.0 million lb (453,592 
kg) in 2007.
    To ensure the 2008 recreational red snapper quota would not be 
exceeded, NMFS and the Council requested the five Gulf states adopt 
regulations compatible with Federal regulations implemented for red 
snapper during the 2008 fishing year. In response, the FWC implemented 
regulations for Florida state waters that allow anglers to possess two 
fish per day and prohibited retention by captain or crew of for-hire 
vessels, compatible with Federal regulations, but maintained its 
recreational fishing season of April 15 through October 31; 78 days 
longer than the existing June 1 through September 30 Federal fishing 
season. The TPWD maintained its existing regulations of a year-round 
fishing season and a four-fish bag limit in Texas state waters.
    The ramifications of incompatible state regulations for the Federal 
red snapper fishery are significant. The

[[Page 15675]]

existing regulations for Federal waters were based on the assumption of 
compatible state regulations. The Magnuson-Stevens Act requires NMFS to 
specify a recreational red snapper quota and to close the recreational 
fishery when the quota is met. Constraining harvest to the quota is 
crucial to meeting the legal requirements to prevent and end 
overfishing of the overfished red snapper resource of the Gulf of 
Mexico, and achieve rebuilding targets. With less restrictive 
regulations in state waters, the likelihood is increased for the 
recreational red snapper quota to be taken before the end of the 
existing June 1 through September 30 Federal fishing season.
    Because of this concern, NMFS conducted an analysis to project 2008 
red snapper recreational landings in accordance with the established 
Federal and state recreational fishing seasons and harvesting 
restrictions. These projections were necessary because only one month 
of landings data, June, will be available by mid-August for the 2008 
Federal recreational red snapper fishery. If landings are higher than 
anticipated, because of less restrictive state regulations, it would be 
difficult to close the fishery in a timely fashion. Therefore, 
historical landings were used to project both landings and season 
length for each state by sector (charter, private, and headboat). The 
most recent annual estimate of red snapper landings for all 
recreational sectors was used to project landings, and where necessary, 
landings were adjusted for changes in regulations (e.g., lower bag 
limit, shorter season length). Confidence limits were constructed for 
the 2008 landings projections. These confidence limits were used to 
assess probabilities of exceeding the recreational quota in 2008.
    The projection results indicate that, under the existing Federal 
recreational fishing season, charter, private, and headboat sectors 
across the Gulf will land 1,774,952 lb (805,105 kg) of red snapper from 
Federal waters in 2008. This harvest level would represent more than 72 
percent of the total recreational quota.
    Under the existing state regulations, NMFS projects the 
recreational sectors of all five Gulf states combined will harvest a 
quantity of red snapper representing nearly 41 percent of the total 
recreational quota from state waters. The projections indicate Florida 
charter, private, and headboat sectors will land 815,787 lb (370,035 
kg) of red snapper in state waters in 2008, representing approximately 
33 percent of the total recreational quota. Texas, Louisiana, 
Mississippi, and Alabama recreational sectors are projected to land 
approximately 190,673 lb (86,489 kg) from state waters in 2008; nearly 
8 percent of the total recreational quota.
    In summary, there is a 50-percent probability that, under the 
existing Federal and state recreational regulations, recreational red 
snapper landings for 2008 will be approximately 2.78 million lb (1.26 
million kg); a 13.5-percent overage in the 2008 recreational quota. The 
projections do not account for shifts in fishing effort or non-
compliance that may occur as a result of incompatible state and Federal 
regulations. Therefore, the projections are likely to represent an 
underestimate of the quantity of red snapper expected to be landed by 
the recreational fishery during 2008. NMFS must ensure the recreational 
quota (representing state and Federal landings) is not exceeded during 
the fishing year.
    On March 12, 2007, the United States District Court for the 
Southern District of Texas, Houston Division, issued a ruling on legal 
challenges to the red snapper rebuilding plan established in 2005 
(Coastal Conservation Association v. Gutierrez et al., Case No. H-05-
1214, consolidated with Gulf Restoration Network et al., v. Gutierrez 
et al., Case No. H-05-2998). The ruling required NMFS and the Council 
to revise the red snapper rebuilding plan with a goal of having a 50-
percent probability, or greater, of ending overfishing for red snapper 
between 2009 and 2010 and rebuilding the stock by 2032. The revised 
rebuilding plan, implemented in response to the Court ruling, reduced 
the recreational quota to 2.45 million pound (1.11 million kg). The 
rebuilding plan has slightly greater than a 50-percent probability of 
ending overfishing, assuming directed fishery landings strictly adhere 
to the total allowable catch and necessary reductions in bycatch 
mortality are achieved in the shrimp trawl fishery.
    Given the recreational quota was exceeded in 2007, and NMFS' 
projections for the 2008 recreational fishing season indicate the quota 
again will be exceeded, there is an even greater likelihood of not 
attaining required reductions in fishing mortality to comply with the 
legal requirements and end overfishing of red snapper by 2010.
    Given the five Gulf states' recreational red snapper regulations 
for 2008, NMFS estimates there is a 50-percent probability the 
recreational 2.45 million lb (1.11 million kg) quota will not be 
exceeded during the 2008 fishing year if Federal waters are closed to 
recreational fishing on August 24, 2008; 38 days before the end of the 
established June 1 through September 30 fishing season.
    As previously discussed, the 2007 projections, which were based on 
a 50-percent probability of constraining recreational harvest to levels 
consistent with the quota, resulted in an overage of approximately 1 
million lb (453,592 kg). The incompatible regulations in Texas and 
Florida contributed to this overage. Given that both Texas and Florida 
have decided to maintain incompatible regulations, NMFS is increasingly 
concerned that non-compliance and shifting effort from Federal to state 
waters due to the incompatible regulations will result in additional 
substantial overages, and a concomitant failure to maintain the 
established rebuilding targets. As a result, NMFS has taken a more 
precautionary approach to better ensure the fishing mortality reduction 
in 2008 is attained, and overfishing is ended by 2010. Based on the 
five Gulf states' 2008 recreational red snapper fishing seasons, NMFS 
estimates there is a 75-percent probability the 2.45 million lb (1.11 
million kg) recreational quota will not be exceeded during the 2008 
fishing year if the Federal fishery is closed on August 5, 2008; 57 
days before the end of the established June 1 through September 30 
recreational fishing season.

Requirement for Closure

    50 CFR 622.42(a)(2) specifies a recreational quota of 2.45 million 
lb (1.11 million kg) for Gulf red snapper for the current fishing year, 
January 1 through December 31, 2008. Under 50 CFR 622.43(a), NMFS is 
required to close the recreational fishery in the EEZ at such time as 
projected to be necessary to prevent the recreational fishery from 
exceeding its quota for the fishing year, by filing a notification to 
that effect in the Federal Register. Accordingly, to better ensure 
recreational landings do not exceed the 2008 recreational quota, the 
recreational fishery for red snapper in the Gulf of Mexico EEZ is 
closed effective 12:01 a.m., local time, August 5, 2008, through 
December 31, 2008, the end of the fishing year. The recreational red 
snapper fishery will reopen June 1, 2009, the start of the 2009 fishing 
season.
    During the closure, the bag and possession limits for red snapper 
in or from the Gulf EEZ is zero.

Classification

    This action responds to the best available information recently 
obtained from the fishery. The Assistant Administrator for Fisheries, 
NOAA, finds that the need to immediately

[[Page 15676]]

implement this action to close the fishery constitutes good cause to 
waive the requirements to provide prior notice and opportunity for 
public comment pursuant to the authority set forth in 5 U.S.C. 
553(b)(3)(B), as such procedures would be unnecessary and contrary to 
the public interest. Such procedures would be unnecessary because the 
rule implementing the quota already has been subject to notice and 
comment, and all that remains is to notify the public of the closure. 
NMFS has a legal obligation to keep harvest within the quota limits 
established by the stock rebuilding plan. There is a need to implement 
these measures in a timely fashion to prevent an overrun of the 
recreational quota of Gulf red snapper, given the capacity of the 
fishing fleet to harvest the quota quickly. Any delay in implementing 
this action would be impractical and contrary to the Magnuson-Steven 
Act, the FMP, and the public interest. To meet the legal obligation to 
constrain total recreational harvest to the quota, NMFS must close the 
recreational fishery in the EEZ earlier, i.e., by August 5, 2008, to 
compensate for continued fishing that will occur in those state waters 
where no compatible regulations exist. Those affected by this earlier 
closure, particularly charter vessel and headboat operations, need as 
much time as possible to adjust business plans to account for the 
earlier closure. Delaying the closure rule to accommodate prior public 
notice and comment would decrease the time available to adjust business 
plans.
    This action is taken under 50 CFR 622.43(a) and is exempt from 
review under Executive Order 12866.

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

    Dated: March 19, 2008.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, National Marine Fisheries 
Service.
[FR Doc. E8-5939 Filed 3-24-08; 8:45 am]
BILLING CODE 3510-22-S