[Federal Register Volume 75, Number 157 (Monday, August 16, 2010)]
[Proposed Rules]
[Pages 49883-49885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20191]



[[Page 49883]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 100713296-0333-01]
RIN 0648-BA06


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Emergency Rule to Re-Open the 
Recreational Red Snapper Season

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

ACTION:  Proposed emergency rule; request for comments.

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SUMMARY: NMFS issues this proposed emergency rule to authorize the 
Regional Administrator, Southeast Region, NMFS (RA) to re-open the Gulf 
of Mexico (Gulf) recreational red snapper season after the September 
30, 2010, end of the fishing season. Such a re-opening would only occur 
if NMFS determines that the recreational red snapper quota was not met 
by the 12:01 a.m., local time, July 24, 2010, closure date. Because of 
the Deepwater Horizon MC252 oil spill and the associated large-area 
fishery closure (fishery closed area) in the north-central Gulf, the 
Gulf of Mexico Fishery Management Council (Council) requested NMFS 
publish this proposed emergency rule. The Council does not expect the 
recreational quota will be reached by the closure date because the 
fishery closed area is located where a substantial portion of the 
recreational red snapper fishing effort occurs. The intent of this 
rulemaking is to provide fishermen the opportunity to harvest the 
recreational red snapper quota, and flexibility to achieve the optimum 
yield for the fishery, thus enhancing social and economic benefits to 
the fishery.

DATES: Comments must be received no later than 5 p.m., eastern time, on 
August 31, 2010.

ADDRESSES: You may submit comments, identified by ``0648-BA06'', by any 
one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal http://www.regulations.gov.
     Fax: 727-824-5308, Attn: Steve Branstetter.
     Mail: Steve Branstetter, Southeast Regional Office, NMFS, 
263 13th Avenue South, St. Petersburg, FL 33701.
    Instructions: No comments will be posted for public viewing until 
after the comment period is over. All comments received are a part of 
the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    To submit comments through the Federal e-Rulemaking Portal: http://www.regulations.gov, enter ``NOAA-NMFS-2010-0124 `` in the keyword 
search, then check the box labeled ``Select to find documents accepting 
comments or submissions'', then select ``Send a Comment or 
Submission.'' NMFS will accept anonymous comments (enter N/A in the 
required fields, if you wish to remain anonymous). Attachments to 
electronic comments will be accepted in Microsoft Word, Excel, 
WordPerfect, or Adobe PDF file formats only.
    Copies of the environmental assessment, the initial regulatory 
flexibility analysis (IRFA), and the regulatory impact review for this 
rule may be obtained from the Southeast Regional Office, NMFS, 263 13th 
Avenue S., St. Petersburg, FL 33701; telephone 727-824-5305; fax 727-
824-5308; e-mail [email protected]; or may be downloaded from 
the SERO Web site at http://sero.nfms.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Steve Branstetter, 727-824-5796.

SUPPLEMENTARY INFORMATION: The Gulf reef fish fishery is managed under 
the Fishery Management Plan for the Reef Fish Resources of the Gulf of 
Mexico (FMP). The FMP was prepared by the Council and is implemented 
through regulations at 50 CFR part 622 under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The Magnuson-Stevens Act provides the legal authority for 
the promulgation of emergency regulations under section 305(c).

Background

    On April 20, 2010, an incident involving a deepwater oil drilling 
platform occurred approximately 50 miles (80.5 km) southeast of Venice, 
Louisiana. An explosion and subsequent fire damaged the Deepwater 
Horizon MC252 oil rig, which capsized and sank. Oil has continued to 
flow into the Gulf from a damaged well head on the sea floor. In 
response to the Deepwater Horizon MC252 oil spill, NMFS issued a series 
of emergency rules (75 FR 24822, May 6, 2010; 75 FR 26679, May 12, 
2010; 75 FR 27217, May 14, 2010) to close a portion of the Gulf 
exclusive economic zone (EEZ) to all fishing. NMFS continues to adjust 
the spatial dimensions of the fishery closed area as new information 
becomes available regarding areas affected by the oil. Currently, EEZ 
waters are closed to all fishing from western Louisiana eastward to 
Pensacola, Florida, and reopened to finfish only in the EEZ waters from 
Pensacola to Cape San Blas, Florida. This fishery closed area has had a 
severe impact on recreational fishing efforts within the north-central 
Gulf, which is the primary fishing area for red snapper by the 
recreational sector.
    The recreational red snapper fishing season opened on June 1, 2010, 
and the fishing season ends on September 30, 2010 (in accordance with 
regulations at 50 CFR part 622.34(m)), unless the quota is met before 
this date, in which case NMFS will publish a notification in the 
Federal Register announcing an earlier closure date. NMFS announced the 
closure date on May 3, 2010 (75 FR 23186), through a final rule that 
adjusted the recreational and commercial quotas for the red snapper. 
The closure date for the recreational red snapper season of 12:01 a.m., 
local time, July 24, 2010, was based on projections of when the 
recreational red snapper quota would be met.

Need for This Proposed Emergency Rule

    Because of the Deepwater Horizon MC252 oil spill and the associated 
fishery closed area, the Council did not expect the recreational red 
snapper quota would be met by the projected closure date. Therefore, in 
a letter to the RA dated June 23, 2010, the Council requested that NMFS 
promulgate emergency regulations authorizing the RA to re-open the 
recreational red snapper season after the September 30, 2010, closure. 
The re-opening would only occur if NMFS determines that the quota has 
not been met during the June 1 through July 23 open season and the re-
opening would otherwise be in accordance with the Magnuson-Stevens Act 
and other applicable law, taking into account the best available 
science. The ``Policy Guidelines for the Use of Emergency Rules'' (62 
FR 44421, August 21, 1997) list three criteria for determining whether 
an emergency exists.
    (1) Results from recent, unforeseen events or recently discovered 
circumstances; and
    (2) Presents serious conservation or management problems in the 
fishery; and

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    (3) Can be addressed through emergency regulations for which the 
immediate benefits outweigh the value of advance notice, public 
comment, and deliberative consideration of the impacts to the same 
extent as would be expected under the normal rulemaking process.
    This proposed rule meets all three criteria for promulgation of 
emergency regulations. This rule meets the first criteria for an 
emergency in that the explosion and subsequent sinking of the Deepwater 
Horizon MC252 oil rig and subsequent uncontrolled release of oil and 
the fishery closures it necessitated, constitutes recent unforeseen 
circumstances.
    The rule meets the second criteria for an emergency because the 
spread of oil, which resulted in the need for an unprecedented safety 
closure of more than 30 percent of the Gulf, has prevented fishermen 
from being able to fish for red snapper in this area. This reduction in 
fishing effort has resulted in economic hardship to the recreational 
fishing industry and reduced the likelihood the 3.403 million lb (1.544 
million kg) recreational quota would be reached before the July 24 
closing date. The framework procedure under the FMP authorizes the RA 
to re-open a fishery that has been closed prematurely to allow the 
quota to be filled, but such authority extends only through September 
30 for the recreational red snapper season.
    The rule meets the third criteria for an emergency because allowing 
the recreational season to re-open after September 30 will alleviate 
some of the economic hardship caused by the Deepwater Horizon MC252 oil 
spill. Neither a regulatory amendment nor a plan amendment can be 
implemented in time to provide economic relief to the recreational 
fishing community in 2010. The Council has determined an emergency rule 
is the only way to provide these potential benefits. However, based on 
the rationale provided below, NMFS has included a 15-day comment period 
in this rulemaking to solicit comments on the economic effects 
associated with the proposed regulations.
    In accordance with the Council's request for emergency action, this 
proposed rule would provide the authority to the RA to re-open the 
recreational red snapper season after September 30 if it is determined 
the quota was not met by July 24, thereby providing fishermen the 
opportunity to harvest the full recreational red snapper quota. The 
intent of this rule is to provide the flexibility necessary to achieve 
optimum yield for the fishery and increase social and economic benefits 
to fishery participants.
    NMFS currently has the authority to re-open the recreational red 
snapper season prior to September 30. However, because of the delay in 
obtaining harvest data, it is likely a re-opening could occur only a 
short time before September 30. If substantial amounts of recreational 
red snapper quota remain, the quota may not be caught by September 30. 
Without this rule, the fishing season would close on September 30 
whether the quota was met or not. A re-opening after September 30 would 
have three possible outcomes. In the first outcome, the fishery closed 
area could remain closed and re-opening the recreational red snapper 
season would allow economic and social benefits to accrue to those 
fishermen who had access to the fishery prior to the July 24 closure. 
Under a second outcome, if the well head is permanently capped and 
portions of the current closed area are re-opened to fishing, re-
opening the recreational red snapper season would allow economic and 
social benefits to be distributed to fishermen in different states and 
ports. In the third outcome, delaying the recreational red snapper 
season re-opening until after September 30 could increase the 
possibility of the fishery closed area being even larger. As a result, 
total economic benefits would be reduced for any recreational red 
snapper season re-opening. Because of these potential effects, NMFS is 
soliciting public comment on this proposed rule before making a final 
determination.

Classification

    This action is issued pursuant to section 305(c) of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 
16 U.S.C. 1855(c).
    This proposed emergency rule has been determined to be not 
significant for purposes of Executive Order 12866.
    NMFS prepared an IRFA, as required by section 603 of the Regulatory 
Flexibility Act. The IRFA describes the economic impact this proposed 
rule, if adopted, would have on small entities. A description of the 
action, why it is being considered, and the legal basis for this action 
are contained at the beginning of this section in the preamble and in 
the SUMMARY section of the preamble. A copy of this analysis is 
available from NMFS (see ADDRESSES). A summary of the analysis follows.
    The purpose of this proposed rule is to facilitate the harvest of 
optimum yield and maximize the social and economic benefits of the red 
snapper component of the recreational sector of the reef fish fishery. 
This is expected to be accomplished by providing an opportunity for 
fishermen who were prevented from fishing for or harvesting red snapper 
as a result of oil-related closures to fish for red snapper if it is 
determined the quota was not been met by July 24, 2010, and previously 
closed waters are re-opened. The Magnuson-Stevens Act provides the 
statutory basis for this proposed rule.
    This proposed rule, if implemented, would be expected to directly 
affect federally permitted for-hire fishing businesses that sell 
services to fish for red snapper in the Gulf of Mexico. The for-hire 
fleet is comprised of charterboats, which charge a fee on a vessel 
basis, and headboats, which charge a fee on an individual angler (head) 
basis. A Gulf reef fish for-hire permit is required to harvest red 
snapper in the Federal waters of the Gulf of Mexico. During 2009, there 
were 1,424 Federal reef fish for-hire permits that were valid (non-
expired) and, therefore, fishable for any portion of the year. Although 
the Federal for-hire permit does not distinguish between headboats and 
charter boats, an estimated 79 headboats operate in the Gulf of Mexico.
    It cannot be determined with available data how many of the for-
hire vessels permitted to operate in the reef fish fishery fish for or 
harvest red snapper, either through directed effort or incidental 
harvest, so all permitted vessels are assumed, for this analysis, to 
comprise the universe of potentially affected vessels. The average 
charterboat is estimated to earn approximately $88,000 (2008 dollars) 
in annual revenues, while the average headboat is estimated to earn 
approximately $461,000 (2008 dollars).
    No other small entities have been identified that would be expected 
to be directly affected by this proposed action.
    The Small Business Administration has established size criteria for 
all major industry sectors in the U.S. including fish harvesters. A 
business involved in the for-hire fishing industry is classified as a 
small business if it is independently owned and operated, is not 
dominant in its field of operation (including its affiliates), and has 
combined annual receipts not in excess of $7.0 million (NAICS code 
713990, recreational industries). Based on the average revenue 
estimates provided above, all for-hire vessels expected to be directly 
affected by this proposed rule are determined for the purpose of this 
analysis to be small business entities.
    This proposed rule would not establish any new reporting, record-

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keeping, or other compliance requirements. No duplicative, overlapping, 
or conflicting Federal rules have been identified.
    As previously discussed, this proposed rule, if implemented, would 
be expected to directly affect all for-hire vessels that fish for red 
snapper. All vessels that possess a Federal reef fish for-hire permit 
may fish for red snapper. There were 1,424 vessels that possessed a 
valid (non-expired) Federal reef fish for-hire permit in 2009. While 
not all federally permitted reef fish for-hire vessels fish for red 
snapper, all such vessels are assumed, for the purpose of this 
analysis, to be potentially directly affected by this proposed rule.
    It cannot be determined, with available data, whether this proposed 
rule, if implemented, would result in a significant reduction in 
profits for a substantial number of small entities. Neither the number 
of affected entities nor the magnitude of effects can be determined 
with available data. This proposed rule would allow for the re-opening 
of the recreational red snapper season after September 30 if the quota 
has not been met during the June 1 through July 23 fishing season. 
Assuming quota is available, re-opening the season after September 30 
rather than prior to September 30 (which can occur under the status 
quo), may result in re-allocation of revenues and profits from for-hire 
businesses in some areas of the Gulf to businesses in other areas of 
the Gulf. This could occur if previously closed areas are re-opened and 
fishermen in those areas are able to go fishing, or if a larger area of 
the Gulf is closed due to an expansion of the presence of oil and 
fishermen in the newly closed area are not able to fish. Either 
situation may reduce the total revenues and profits that accrue to all 
relevant for-hire businesses.
    While specific quota underages cannot be forecast at this time, in 
the absence of this proposed rule (status quo), any re-opening, if 
appropriate and practical, would occur prior to September 30. As a 
result, resultant economic benefits would likely accrue to the same 
small business entities that have been able to sell red snapper for-
hire trips during the June 1 through July 23 fishing season. Delaying 
the re-opening of the season until after September 30 increases the 
opportunity that the fishery closed area expands and a reduction in 
revenues and profits for for-hire businesses previously able to operate 
in the fishery occurs. Delaying the re-opening also increases the 
opportunity that closed areas may be re-opened to fishing in general.
    While the re-opening of waters previously closed due to the oil 
spill would be expected to result in increased revenues and profits for 
for-hire businesses in adjacent communities, the total revenues 
associated with the remaining red snapper quota would potentially be 
distributed over a larger number of businesses (businesses near 
previously open areas and those near newly opened areas), resulting in 
a redistribution of revenues and a reduction in revenues to businesses 
that might have had less competitive access to the resource prior to 
September 30.
    Thus, re-opening of the red snapper recreational season after 
September 30 could result in decreased profits overall (if the fishery 
closed area expands), and decreased profits for some business entities 
due to a re-distribution of revenues. However, due to uncertainty 
associated with these findings, public comment is solicited on whether 
this proposed rule would be expected to result in a significant 
reduction in profits for a substantial number of small entities.
    Two alternatives to the proposed action were considered. The first 
alternative to the proposed action would not allow any re-opening 
either before or after September 30 of recreational red snapper season 
if the quota is not met during the June 1 through July 23 season. 
Failure to re-open the season and not allow the quota to be harvested 
would be expected to result in reduced profits to small business 
entities than the proposed action and would not achieve the Council's 
objectives.
    The second alternative to the proposed action would re-open the 
recreational red snapper season before September 30 if quota is 
available (status quo). It cannot be determined with available data 
whether this alternative would be expected to result in an increase or 
decrease in profits to small business entities compared to the proposed 
action. If the season is re-opened before September 30, benefits could 
continue to accrue to fishermen who were fishing in the open areas 
before July 24. However, if the season re-opens after September 30, 
more of the fishery closed area could be re-opened and benefits could 
be dispersed among fishermen who were fishing before July 24 as well as 
additional fishermen in or from other states or ports. Therefore, this 
alternative would not increase, as much as the proposed action, the 
opportunity for fishermen who have been prevented from fishing for or 
harvesting red snapper as a result of the fishery closed area to fish 
for any red snapper quota that is available after July 23. As a result, 
this alternative would not achieve the Council's objectives.

List of Subjects in 50 CFR Part 622

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

    Dated: August 11, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 622 is 
proposed to be 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 (m) is revised to read as follows:


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

* * * * *
    (m) Closure of the recreational fishery for red snapper. The 
recreational fishery for red snapper in or from the Gulf EEZ is closed 
from January 1 through May 31, each year. During the closure, the bag 
and possession limit for red snapper in or from the Gulf EEZ is zero.
* * * * *
[FR Doc. 2010-20191 Filed 8-11-10; 4:15 pm]
BILLING CODE 3510-22-S