[Federal Register Volume 75, Number 185 (Friday, September 24, 2010)]
[Rules and Regulations]
[Pages 58335-58337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23993]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 100713296-0452-02]
RIN 0648-BA06


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

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

ACTION:  Emergency rule.

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SUMMARY: NMFS issues this 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. NMFS has determined that the 
recreational red snapper quota was not met by the 12:01 a.m., local 
time, July 24, 2010, closure date. The BP Deepwater Horizon MC252 oil 
spill and the associated large-area fishery closure (fishery closed 
area) in the north-central Gulf are located where a substantial portion 
of the recreational red snapper fishing effort occurs. Therefore, the 
Gulf of Mexico Fishery Management Council (Council) requested NMFS 
publish this emergency rule. The intent of this rulemaking is to 
provide the RA the authority to allow fishermen the opportunity to 
harvest the recreational red snapper quota, and to achieve the optimum 
yield for the fishery, thus enhancing social and economic benefits to 
the fishery.

DATES: This emergency rule is effective September 24, 2010 through 
December 31, 2010.

ADDRESSES: Copies of the environmental assessment, the final regulatory 
flexibility analysis (FRFA), 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, 16 U.S.C. 
1801, et seq. (Magnuson-Stevens Act). The Magnuson-Stevens Act provides 
the legal authority for the promulgation of emergency regulations under 
section 305(c) (16 U.S.C. 1355(c)).
    On August 16, 2010, NMFS published a proposed emergency rule to 
grant the RA the authority to re-open the Gulf recreational red snapper 
season after September 30, and requested public comment (75 FR 49883). 
The rationale for the measures contained in this emergency rule is 
provided in the environmental assessment and the proposed emergency 
rule and is not repeated here.

Comments and Responses

    A total of 139 comments were received on the proposed emergency 
rule. A summary of those comments, and NMFS responses, follows.
    Comment 1: More than 50 percent of the comments expressed broad 
general support re-opening the recreational red snapper fishing season 
during 2010 without regard to specific timing. Another 25 percent 
specifically expressed support for re-opening later in the year and/or 
giving NMFS the authority to re-open the season after the September 30 
end of the fishing season. At its August 2010 meeting, the Council 
recommended re-opening the recreational red snapper fishing season on 
eight consecutive weekends (Friday through Sunday) beginning October 1, 
2010. Several comments received after this meeting expressed opinions 
regarding weekend openings versus opening during the week as well.
    Response: This emergency rule gives the RA the authority to re-open 
the recreational red snapper fishing season after September 30, 2010. 
Without this rulemaking NMFS is only authorized to re-open the season 
through the end of the designated June 1 through September 30 fishing 
season. The recreational red snapper quota is established based on an 
allowable biological catch level determined from the results of a peer-
reviewed and vetted stock assessment, which is based on the best 
scientific information available. This rulemaking will provide the 
opportunity for the recreational sector to harvest the remaining quota 
and achieve the Council's designated optimum yield (OY) for the 
fishery, thus enhancing social and economic benefits to fishermen and 
the tourism industries of Gulf coastal communities. The timing and 
duration of a re-opening will not affect the goal of harvesting the 
allowable catch established in accordance with the red snapper 
rebuilding plan, which seeks to achieve OY for the red snapper 
component of the reef fish fishery. NMFS will publish an additional 
rulemaking specifying the dates of a re-opening.
    Comment 2: A few comments suggested that areas that had been open 
to fishing during the June 1 through July 23 recreational red snapper 
season should remain closed. Any re-opening of the season should be 
restricted to those areas that had been closed to all fishing because 
of BP Deepwater Horizon MC252 oil spill, but are now re-opened to 
fishing.
    Response: The recreational red snapper quota is a Gulf-wide quota; 
it is not separated into regional components. Current regulations do 
not allow NMFS to designate fishing season openings for specific 
geographic regions. In addition, many areas are still closed to all 
fishing because of the BP Deepwater Horizon MC252 oil spill, and may 
not be re-opened to fishing during the recommended eight consecutive 
weekend openings. Re-opening the recreational red snapper fishing 
season to specific geographic regions would create substantial 
regulatory confusion for the public, and increase the difficulty of 
enforcement.
    Comment 3: A few comments suggested that the recreational red 
snapper fishing season should remain

[[Page 58336]]

closed for 2010. It was suggested NMFS should not be authorized to 
change the existing regulations intended to protect the red snapper 
stock just because the quota was not harvested. It would be 
irresponsible to re-open the recreational red snapper fishing season 
without first determining the effects of the BP Deepwater Horizon MC252 
oil spill to the environment and associated fish stocks. A stock 
assessment should be conducted before allowing additional fishing 
mortality.
    Response: NMFS acknowledges the concern for potential impact to 
fishery stocks from the BP Deepwater Horizon MC252 oil spill. Oil from 
the spill dispersed on the surface as well as within the water column. 
Red snapper spawn during summer and fall. Oil in surface waters could 
affect the survival of eggs and larvae; however, if oil has not 
dispersed to the ocean floor, the impacts to the demersal juvenile and 
adult red snapper and their benthic habitat may not be substantial. 
This anthropogenically-induced natural mortality on larvae caused by 
the oil spill could result in declines in recruitment in future year 
classes.
    At this time, data are not available to demonstrate any specific 
adverse effects of the BP Deepwater Horizon MC252 oil spill on the red 
snapper resource or its habitat. As a result, no information is 
available indicating that the 2010 recreational red snapper quota 
should not be harvested. The current rebuilding schedule is intended to 
allow a specific harvest that will allow the stock to rebuild on a 
specified schedule, while providing for a quota-controlled harvest that 
will achieve maximum economic and social benefits. No information is 
available that indicates reduced harvests are necessary to maintain the 
current rebuilding schedule, i.e., to mitigate biological harm 
resulting from the oil spill. In the absence of biological harm or a 
need for beneficial mitigation (although not harvesting the quota would 
reduce overall fishing mortality), this would not be expected to result 
in greater economic and social benefits. In addition, substantial 
portions of the red snapper population are found in the northwestern 
and western Gulf (western Louisiana and Texas) and an increasing 
population of red snapper is re-establishing off the west Florida 
continental shelf. Spawning by these segments of the stock should 
mitigate the overall impact of any potentially compromised spawn by 
that part of the stock located in oil-affected areas.

Classification

    This action is issued pursuant to section 305(c) of the Magnuson-
Stevens Act, 16 U.S.C. 1855(c).
    This emergency rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an FRFA. The FRFA describes the economic impact this 
emergency rule is expected to 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 the FRFA is 
available from NMFS (see ADDRESSES). A summary of the FRFA analysis 
follows.
    The purpose of this emergency rule is to authorize the Regional 
Administrator, Southeast Region, NMFS (RA), to re-open the Gulf of 
Mexico recreational red snapper season after the September 30, 2010, 
end of the fishing season in order to provide fishermen the opportunity 
to harvest the recreational red snapper quota, and to achieve the OY 
for the fishery, thus enhancing the social and economic benefits to the 
fishery. The Magnuson-Stevens Act provides the statutory basis for this 
emergency rule.
    This emergency rule does not establish any new reporting, record-
keeping, or other compliance requirements. No duplicative, overlapping, 
or conflicting Federal rules have been identified.
    No significant issues were raised by public comments in response to 
the Initial Regulatory Flexibility Analysis (IRFA) and no changes were 
made in the emergency rule as a result of such comments.
    This emergency rule will grant NMFS the authority to re-open the 
Gulf recreational red snapper season. Because this emergency rule will 
only grant the authority to re-open the red snapper fishing season, and 
not actually re-open the season (re-opening would only occur as a 
result of subsequent rule-making), this emergency rule is an 
administrative action and no direct effects on any small entities have 
been identified or are expected.
    However, a reasonably foreseeable consequence of this emergency 
rule is the re-opening of the Gulf red snapper fishing season. If the 
recreational red snapper season is re-opened, federally permitted for-
hire fishing businesses that sell services to fish for red snapper in 
the Gulf of Mexico would be expected to be directly affected. 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 valid (non-expired) Federal reef fish for-hire permits that 
allowed permit holders to fish during 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).
    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 that would be expected 
to be directly affected by actual re-opening of the red snapper season 
are determined for the purpose of this discussion to be small business 
entities.
    As stated previously, this emergency rule is an administrative 
action and no direct economic effects on any small entities have been 
identified or are expected.
    For-hire vessels that would be directly affected by subsequent 
rule-making to re-open the red snapper season would be expected to 
receive an increase of approximately $4.4 million (2008 dollars) in net 
operating revenues (revenues minus non-labor variable operating costs) 
compared to not re-opening. As previously discussed, it cannot be 
determined how many of the for-hire vessels permitted to operate in the 
reef fish fishery fish for or harvest red snapper. If spread over all 
1,424 vessels with Federal reef fish for-hire permits, this increase in 
net operating revenues would equate to an average of approximately 
$3,000 per vessel. However, not all for-hire vessels with Federal reef 
fish permits would be expected to benefit from re-opening the

[[Page 58337]]

red snapper season, and some vessels would be expected to benefit more 
than others. Estimates of the average annual net operating revenues per 
vessel are not available, and estimates of the average annual gross 
revenues per vessel, provided above, are an inappropriate proxy because 
gross revenues do not account for operating expenditures. As a result, 
estimates of the average percentage increase in net operating revenues 
are not available. It is noted, however, that because these effects 
would only occur in response to subsequent rule-making, these effects 
would indirectly result from this emergency rule.
    Because no direct effects on any small entities have been 
identified or are expected to occur as a result of this emergency rule, 
the issue of significant alternatives is not relevant.
    Pursuant to the Administrative Procedure Act, 5 U.S.C. 553(d)(3), 
the Assistant Administrative for Fisheries (AA) finds good cause to 
waive the delay in effectiveness of this final emergency rule. This 
rule grants NMFS the authority to re-open the Gulf recreational red 
snapper season. The re-opening of the red snapper fishing season would 
only occur as a result of subsequent rule-making. This emergency rule 
is purely procedural in nature, and does not impose any new compliance 
requirements or reporting burdens on the public for which a delay in 
effectiveness would be necessary. For these reasons, the AA finds good 
cause to waive the 30-day delay in effectiveness of this rulemaking.

List of Subjects in 50 CFR Part 622

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

    Dated: September 20, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 622 is amended as 
follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

0
1. The authority citation for part 622 continues to read as follows:

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

0
2. In Sec.  622.34, paragraph (m) is suspended and paragraph (v) is 
added to read as follows:


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

* * * * *
    (v) 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. During the closure, the bag and 
possession limit for red snapper in or from the Gulf EEZ is zero.

[FR Doc. 2010-23993 Filed 9-21-10; 4:15 pm]
BILLING CODE 3510-22-S