00-24012. Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Shrimp Fishery of the Gulf of Mexico; Prohibition of Trap Gear in the Royal Red Shrimp Fishery in the Gulf of Mexico

AGENCY:

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

ACTION:

Emergency interim rule; request for comments.

SUMMARY:

This emergency interim rule prohibits the use of trap gear in the royal red shrimp fishery within the exclusive economic zone (EEZ) of the Gulf of Mexico. The intended effect of this emergency interim rule is to prevent gear conflict and overfishing in the royal red shrimp fishery.

DATES:

This emergency interim rule is effective September 14, 2000, through March 18, 2001. Comments must be received no later than 4:30 p.m., eastern standard time, on October 19, 2000.

ADDRESSES:

Written comments on this emergency interim rule must be mailed to, and copies of documents supporting this action may be obtained from, the Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702. Comments also may be submitted via fax to 727-570-5583. Comments will not be accepted if submitted via e-mail or Internet. Comments on ambiguity or unnecessary complexity arising from the language used in this emergency interim rule should be directed to the Southeast Regional Office at the address given here.

FOR FURTHER INFORMATION CONTACT:

Dr. Steve Branstetter, telephone: [phone], fax: [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

The shrimp fishery of the Gulf of Mexico is managed under the Fishery Management Plan for the Shrimp Fishery 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

On January 27, 1999, NMFS published a final rule (64 FR 4030) pursuant to section 305(a) of the Magnuson-Stevens Act, establishing a list of authorized fisheries and fishing gear and notification guidelines for actions to be taken by regional fishery management councils (councils) and NMFS upon receipt of a notification of the intent to fish or use a fishing gear that is not on that authorized list. The list of fisheries and gear was revised upon publication of a revised final rule effective December 1, 1999 (64 FR 67511, December 2, 1999). Under the final rule, no person or vessel may employ fishing gear or engage in a fishery not included on the list without giving 90-day advance written notice to the appropriate council.

Upon receipt of a notification of intent to participate in an unlisted fishery or use an unlisted fishing gear, a council must immediately begin consideration of the notification. If the council finds that the use of an unlisted gear or participation in an unlisted fishery would not compromise the effectiveness of conservation and management efforts, it shall recommend that NMFS amend the list of authorized fisheries and gear. If the council finds that the proposed gear or fishery will be detrimental to conservation and management efforts, it will recommend that NMFS not amend the authorized list of fisheries and gear. Instead, it will request NMFS to publish emergency or interim regulations specifically to prohibit the use of the proposed gear, and begin preparation of an amendment to the subject fishery management plan, if appropriate. Ninety days after the receipt by the Council of a notification, the individual may use the gear unless regulatory action is taken to prohibit the use of the gear.

Royal red shrimp have been a small component of the Gulf of Mexico shrimp fishery since the early 1960s. The fishery uses modified penaeid shrimp trawls at depths exceeding 100 fathoms (183 meters). Trap gear is not an authorized gear in this fishery under the provisions of the FMP. On June 16, 2000, a fisherman notified the Council of his intent to use trap gear to fish for royal red shrimp in the EEZ of the Gulf of Mexico. At its July 10-13, 2000, meeting, the Council considered the notification, and based on the information available, the Council determined that allowing trap gear in the royal red shrimp fishery posed a threat to ongoing conservation and management efforts because of a potential for gear conflicts with the existing trawl fishery.

Criteria For Issuing An Emergency Rule

NMFS policy guidelines for the use of emergency rules (62 FR 44421, August 21, 1997), require that an emergency situation results from recent, unforeseen events, or recently discovered circumstances; presents a serious management problem; and realizes immediate benefits from the emergency rule that outweigh the value of prior notice, opportunity for public comment, and deliberative consideration expected under the normal rulemaking process. Compliance with the NMFS policy guidelines is discussed here.

Recent, Unforeseen Events or Recently Discovered Circumstances

Based on its review of the June 16, 2000, notification to use trap gear in the royal red shrimp fishery, the Council voted to add options to its draft FMP Amendment 11 to prohibit the use of this gear in the subject fishery. Amendment 11 is scheduled for completion in November 2000; must be reviewed by NMFS; and, if approved, likely would not be implemented prior to April 2001. Therefore, to avoid management problems in the fishery, as identified by the Council, a prohibition on the use of trap gear must be implemented on or before September 14, 2000 (the date 90 days after receipt by the Council of notification of intent to use unauthorized gear). Consequently, the Council voted without objection to request NMFS to promulgate regulations to prohibit the use of trap gear in the royal red shrimp fishery within the EEZ of the Gulf of Mexico.

Serious Management Problems in the Fishery

The intended effect of this emergency interim rule is to prevent gear conflict that could compromise vessel safety, and to prevent overfishing in the royal red shrimp fishery. Gear conflicts are likely to occur between the traditional trawl fishery and the proposed trap line fishery on the royal red shrimp fishing grounds. This could result in substantial damage and loss of fishing gears and an increase in cost for participants in the fishery, as well as vessel safety issues because of the depth of the fishing effort, the weight of the deployed gears, and the fact that the fishing grounds are far offshore. Additionally, the introduction of new fishing effort could result in landings exceeding maximum sustainable yield (MSY), thus overfishing the resource. Since 1993, landings from the traditional trawl fishery have ranged from 200,000 to 335,000 lb (90,719 to 151,953 kg), which is approaching the MSY of 392,000 lb (177,808 kg) for the fishery.

Immediate Benefits

Prohibiting the use of trap gear in the royal red shrimp fishery is anticipated to avoid economic impacts from gear damage and loss from gear conflicts in the fishery, and maintain harvest within the MSY threshold, thus, preventing overfishing. Should landings exceed MSY, and overfishing occur, additional actions would be necessary to reduce the allowable catch for either or both gear types in the fishery. The Council concluded, and NMFS agrees, that a restriction on the landings by the traditional trawl fishery to accommodate a non-traditional fishery would be inappropriate, particularly given that the trap fishery also would result in serious gear conflicts, most likely jeopardizing the ability to obtain optimum yield from the fishery.

Period of Effectiveness

This emergency interim rule is being made effective for 180 days, as authorized by section 305(c) of the Magnuson-Stevens Act. It may be extended for up to an additional 180 days, provided that the public has had an opportunity to comment on it and the Council is actively preparing an FMP amendment to address the emergency on a permanent basis. Public comments on this emergency interim rule and the Council's actions will be considered in determining whether to extend this emergency interim rule.

Classification

The Assistant Administrator for Fisheries, NOAA (AA), has determined that this emergency interim rule is necessary to prevent gear conflict and overfishing in the royal red shrimp fishery. The AA has also determined that this rule is consistent with the Magnuson-Stevens Act and other applicable laws.

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

NMFS has assessed the regulatory impacts associated with this emergency interim rule.

Currently, trap gear is not on the list of authorized fishing gear (50 CFR 600.725) for the royal red shrimp fishery in the Gulf of Mexico and, therefore, is not allowed. However, consistent with the guidelines contained in 50 CFR 600.725, an individual fisherman may notify the Council of the intent to use a gear not on the list. Ninety days after such notification, the individual may use the gear unless regulatory action is taken to prohibit the use of the gear. The Council was notified on June 16, 2000, of intent to use trap gear in the royal red fishery. This emergency interim rule is designed to maintain the status quo until such time as the Council can prepare and submit to NMFS for review and approval an FMP amendment to prohibit the gear. Because the emergency interim rule is designed to prohibit the use of trap gear in the royal red shrimp fishery, namely the status quo, there are no expected economic consequences to the participants in the fishery.

If the use of trap gear in the royal red shrimp fishery in the EEZ of the Gulf of Mexico were not prohibited by September 14, 2000, the Council concluded, as explained in the SUPPLEMENTARY INFORMATION, that serious gear conflict, economic losses to fishery participants, and overfishing could occur. Accordingly, under authority set forth at 5 U.S.C. 553(b)(B), the AA finds that providing notice and the opportunity for prior public comment would be contrary to the public interest. Because it would delay the completion of regulatory action to prohibit the use of trap gear in the royal red shrimp fishery in the EEZ of the Gulf of Mexico beyond September 14, 2000. For this same reason, under 5 U.S.C. 553(d)(3), the AA finds for good cause that a delay in the effective date of this emergency interim rule would be contrary to the public interest because this emergency interim rule does not impose new or additional restrictions; rather, it maintains the status quo condition regarding allowable gear in the royal red shrimp fishery, i.e., trap gear is not allowed, no time is required to come into compliance with the rule. For this reason, under 5 U.S.C. 553(d)(3), the AA also finds good cause that a delay in the effective date of this emergency interim rule is unnecessary.

Because prior notice and an opportunity for public comment are not required to be provided for this emergency interim rule by 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

The President has directed Federal agencies to use plain language in their communications with the public, including regulations. To comply with this directive, we seek public comment on any ambiguity or unnecessary complexity arising from the language used in this emergency interim rule. Such comments should be sent to NMFS Southeast Regional Office (see ADDRESSES).

List of Subjects in 50 CFR Part 622

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

Dated: September 13, 2000.

Bruce C. Morehead,

Acting Assistant Administrator for Fisheries, 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 § 622.31, paragraph (k) is added to read as follows:

§ 622.31

Prohibited gear and methods.

* * * * *

(k) Traps for royal red shrimp in the Gulf EEZ. A trap may not be used to fish for royal red shrimp in the Gulf EEZ. A trap used to fish for royal red shrimp in the Gulf EEZ may be disposed of in any appropriate manner by the Assistant Administrator or an authorized officer.