05-3092. Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Commercial Trip Limits for Gulf of Mexico Grouper Fishery

AGENCY:

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

ACTION:

Emergency rule; request for comments.

SUMMARY:

NMFS issues this emergency rule to establish trip limits for the commercial shallow-water and deep-water grouper fisheries in the exclusive economic zone of the Gulf of Mexico. The intended effect of this emergency rule is to moderate the rate of harvest of the available quotas and, thereby, reduce the adverse social and economic effects of derby fishing, enable more effective quota monitoring, and reduce the probability of overfishing.

DATES:

This rule is effective March 3, 2005 through August 16, 2005. Comments on this emergency rule must be received no later than 5 p.m., eastern time, on March 21, 2005.

ADDRESSES:

You may submit comments on this emergency rule by any of the following methods:

• E-mail: [e-mail]. Include in the subject line the following document identifier: 0648-AS97.
• Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Phil Steele, Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702.
• Fax: [phone], Attention: Phil Steele.

Copies of the documents supporting this emergency rule may be obtained from the NMFS Southeast Regional Office at the above address.

FOR FURTHER INFORMATION CONTACT:

Phil Steele, 727-570-5305; fax: [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

The fishery for reef fish is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) that was prepared by the Gulf of Mexico Fishery Management Council (Council). This FMP was approved by NMFS and implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

Background

On June 15, 2004, NMFS published a final rule (69 FR 33315) to end overfishing of red grouper in the Gulf of Mexico and to implement a stock rebuilding plan as provided in Secretarial Amendment 1 to the FMP. That final rule established a red grouper commercial quota; reduced the shallow-water and deep-water grouper commercial quotas; and included a provision to close the entire shallow-water grouper commercial fishery when either the red grouper quota or the shallow-water grouper quota is reached. As a result of these more restrictive measures, the quotas were reached before the end of the 2004 fishing year. NMFS closed the commercial fishery for deep-water grouper on July 15, 2004, and closed the shallow-water grouper on November 15, 2004, when the quotas for these fisheries were reached.

Two of the principal fishing associations involved in the commercial grouper fishery, Southern Offshore Fishing Association (SOFA) and Gulf Fishermen's Association (GFA), have indicated the 2004 closure of both the deep-water grouper and shallow-water grouper fisheries, combined with the damaging effects of four hurricanes, severely impacted the Florida economy, especially regions along the west coast and Panhandle. Although data are not yet available to quantify the adverse effects of these recent grouper closures, there is ample evidence from other high-value fisheries, e.g., Gulf red snapper, Alaskan halibut, that quotas resulting in closures well before the end of the fishing season have substantial adverse economic and social impacts. Typically, restrictive quotas result in a derby fishing effect, i.e., a race for the fish. Problems associated with derby fishing and the resultant early closure of fisheries include: market gluts and associated depressed prices for fish landed; disruption and potential loss of established markets due to lack of a constant supply of fish; loss of fresh product for retailers and consumers; financial strain due to cash flow constraints in fisheries that have few, if any, economically viable fishing alternatives during closures; inability to retain experienced fishing crew members; and competitive pressure to fish in marginal or unsafe weather. Timely and appropriately structured trip limits have the potential to mitigate many of these issues.

At the November 7-12, 2004, Council meeting, SOFA and GFA requested an interim or emergency rule to establish commercial trip limits for shallow-water and deep-water grouper to slow the rate of harvest and extend the 2005 fishing season, thus reducing potential adverse economic consequences for all sectors of the commercial grouper fishery, including affected fishing communities. The trip limits proposed by the SOFA and GFA were structured as follows: (1) On January 1, all vessels will be limited to a 10,000-lb (4,536-kg), gutted-weight (GW), trip limit for deep-water grouper and shallow-water grouper combined; (2) if on or before August 1 the fishery is estimated to have landed more than 50 percent of either the shallow-water grouper or the red grouper quota, then a 7,500-lb (3,402-kg) GW trip limit takes effect; and (3) if on or before October 1 the fishery is estimated to have landed more than 75 percent of either the shallow-water grouper or the red grouper quota, then a 5,500-lb (2,495-kg) GW trip limit takes effect.

The Council is concerned the rate of commercial grouper harvest may increase in 2005 due to industry reaction to the 2004 closures (i.e., a derby effect) and because of improvement in the status of the red grouper resource as a result of the rebuilding plan and recently implemented management measures. Sufficient data are not available to evaluate the rate of harvest this early in the 2005 fishing season. However, based on experiences in the Gulf red snapper fishery and other high-value quota-managed fisheries, there is a high probability of an increased harvest rate. Without some mechanism to slow the rate of harvest, it is likely the quotas in 2005 would be reached earlier than in 2004 resulting in an even shorter fishing season and significant adverse economic and social impacts on affected fishermen and the dependent fishing communities. The recommended trip limits will slow the rate of harvest, help to extend the fishing season, and facilitate accurate monitoring of the quotas, thus, lessening the likelihood of overfishing. To be most effective, trip limits must be implemented as near the beginning of the fishing season as possible.

For these reasons, the Council requested NMFS develop an emergency rule establishing the proposed trip limits for the commercial grouper fishery in the Gulf of Mexico for the 2005-fishing year. NMFS concurs with the need for emergency implementation of the trip limits.

NMFS issues this emergency rule, effective for not more than 180 days, as authorized by section 305(c) of the Magnuson-Stevens Act. The emergency rule may be extended for an additional 180 days, provided the public has had an opportunity to comment on the emergency rule and provided the Council is actively preparing proposed regulations to address the emergency on a permanent basis. Public comments on this emergency rule are invited and will be considered in determining whether to extend this emergency rule. The Council is preparing a regulatory amendment under the FMP framework procedure to address, on a permanent basis, trip limits for the commercial grouper fishery in the Gulf of Mexico that are the subject of this rule. Trip limits are needed on a longer-term basis to control harvest rate until such time as the Council is able to evaluate and possibly implement a more comprehensive management strategy for controlling effort in this fishery.

Classification

The Assistant Administrator for Fisheries, NOAA (AA), has determined that this emergency rule is necessary to minimize adverse social and economic impacts, (i.e., derby fishing, market gluts, lower ex-vessel prices, potential safety-at-sea issues, and a shortened fishing season). The AA has also determined that this rule is consistent with the Magnuson-Stevens Act and other applicable laws.

This emergency rule has been determined to be not significant for purposes of Executive Order 12866.

This emergency rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.

The AA finds good cause to waive the requirement to provide prior notice and opportunity for public comment, pursuant to authority set forth at U.S.C. 553(b)(B), as such procedures would be impracticable and contrary to the public interest. This emergency rule will establish commercial trip limits to moderate the rate of harvest of the available quotas, thereby helping to keep the fishery open for more of the fishing year and reducing the effects of derby fishing and the associated adverse social and economic impacts. Preliminary January 2005 data from the commercial deep-water grouper fishery indicate landings are approximately 23 percent higher than landings for the comparable time period in 2004, thus making immediate action necessary to prevent the adverse consequences this rule is intended to reduce. For these same reasons, under 5 U.S.C. 553(d)(3), the AA finds good cause to establish an effective date less than 30 days after the date of publication. For the reasons stated above, a 30-day delay in the effective date of this emergency rule would be contrary to the public interest. However, to ensure that vessels at sea will have adequate time to return to port and offload prior to the effectiveness of trips limits established by this emergency rule, the effectiveness of this emergency rule will be delayed until March 3, 2005.

List of Subjects in 50 CFR Part 622

• Fisheries
• Fishing
• Puerto Rico
• Reporting and recordkeeping requirements
• Virgin Islands

Dated: February 11, 2005.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

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

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

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

2. In § 622.44, paragraph (g) is added to read as follows:

§ 622.44

Commercial trip limits.

* * * * *

(g) Gulf deep-water and shallow-water grouper, combined. (1) For vessels operating under the quotas in § 622.42(a)(1)(ii) or § 622.42(a)(1)(iii), the following trip limits apply to Gulf deep-water and shallow-water grouper combined. (See § 622.42(a)(1)(ii) and § 622.42(a)(1)(iii) for the species included in the deep-water and shallow-water grouper categories, respectively).

(i) Beginning March 3, 2005—10,000 lb (4,536 kg).

(ii) If on or before August 1 more than 50 percent of either the shallow-water grouper quota or red grouper quota specified in § 622.42(a)(1)(iii) is reached or is projected to be reached—7,500 lb (3,402 kg).

(iii) If on or before October 1 more than 75 percent of either the shallow-water grouper quota or red grouper quota specified in § 622.42(a)(1)(iii) is reached or is projected to be reached—5,500 lb (2,495 kg).

(2) The Assistant Administrator, by filing a notification of trip limit change with the Office of the Federal Register, will effect the trip limit changes specified in paragraphs (g)(1)(ii) and (iii) of this section when the applicable conditions have been met.