E7-18785. Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Extension of Effective Date of Gulf Red Snapper Management Measures

AGENCY:

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

ACTION:

Temporary rule; interim measures.

SUMMARY:

NMFS issues this temporary rule to amend, and extend the effective date of, interim measures to reduce overfishing of red snapper in Federal waters of the Gulf of Mexico implemented by a temporary rule published by NMFS on April 2, 2007. This temporary rule amends the regulations to provide an option for a special procedure for the initial calculation of Gulf of Mexico red snapper 2008 individual fishing quota allocations. The intended effect is to reduce overfishing of red snapper in the Gulf of Mexico.

DATES:

This rule is effective September 30, 2007, through March 28, 2008.

ADDRESSES:

Copies of the final environmental impact statement (FEIS) and Record of Decision (ROD) prepared for the April 2, 2007 interim final rule (72 FR 15617) are available from Peter Hood, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

FOR FURTHER INFORMATION CONTACT:

Peter Hood, telephone: [phone], fax: [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

The red snapper fishery of the Gulf of Mexico is managed under the Fishery Management Plan (FMP) for the Reef Fish Resources of the Gulf of Mexico, and the shrimp fishery is managed under the FMP for the Shrimp Fishery of the Gulf of Mexico. The FMPs were prepared by the Gulf of Mexico Fishery Management Council (Council) and are implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

NMFS issued an interim rule (72 FR 15617, April 2, 2007) under section 305 (c) of the Magnuson-Stevens Act, to reduce fishing mortality on red snapper by reducing harvest and bycatch levels. Specifically, the rule: (1) reduces red snapper total allowable catch (TAC) from 9.12 million lb (4.14 million kg) to 6.5 million lb (2.9 million kg), whole weight, resulting in a commercial quota of 3.315 million lb (1.504 million kg) and a recreational quota of 3.185 million lb (1.445 million kg); (2) reduces the commercial minimum size limit for red snapper from 15 inches (38 cm) to 13 inches (33 cm) total length (TL); (3) reduces the daily recreational bag limit from four fish to two fish per person and prohibits the captain and crew of for-hire vessels (charter vessels and headboats) from retaining the recreational bag limit; and (4) establishes a goal to reduce red snapper bycatch mortality in the shrimp fishery to 50 percent of the bycatch mortality that occurred during 2001-2003. These measures remain necessary to address overfishing of the red snapper resource.

Under section 305 (c)(3)(B) of the Magnuson-Stevens Act, NMFS may extend the effectiveness of an interim rule for one additional period of not more than 186 days, provided the public has had an opportunity to comment on the interim rule and the Council is actively preparing proposed regulations to address the overfishing on a permanent basis. NMFS solicited public comments on the interim proposed rule (71 FR 75220, December 14, 2006) and received numerous comments. These comments were summarized and NMFS's responses were provided in the interim final rule (72 FR 15617, April 2, 2007). The Council has prepared joint Amendment 27/14 to the reef fish and shrimp fishery management plans in the Gulf of Mexico (Amendment 27/14). This amendment includes additional measures to end overfishing and to rebuild the red snapper stock. The expiration date of the interim rule is being extended so that NMFS may continue to address overfishing of red snapper while considering the implementation of more permanent measures recommended by the Council in Amendment 27/14. Failure to extend the effectiveness of the initial interim rule would result in overfishing of Gulf red snapper and would jeopardize the red snapper rebuilding plan.

Additional details concerning the basis for these changes to the red snapper management measures and discussion of the ongoing efforts of the Council and NMFS to evaluate and implement measures to rebuild the red snapper stock consistent with the requirements of the Magnuson-Stevens Act are contained in the preamble of the interim proposed rule (71 FR 75220, December 14, 2006) and are not repeated here. Public comment and NMFS' responses are contained in the preamble of the interim final rule (72 FR 15617, April 2, 2007) and are not repeated here.

In addition, this temporary rule amends the regulations to provide an option for a special procedure for the initial calculation of Gulf of Mexico red snapper 2008 individual fishing quota allocations. The Council has submitted Amendment 27/14 to NMFS for approval. If approved, Amendment 27/14 would, in addition to other measures, reduce the commercial red snapper quota from 3.315 million lb (1.504 million kg) to 2.55 million lb (1.16 million kg) beginning January 1, 2008. NMFS must calculate and issue 2008 individual fishing quota (IFQ) allocations prior to January 1, 2008, the beginning of the commercial red snapper fishing season. If Amendment 27/14 is approved, and NMFS implements the reduced quota via appropriate rulemaking, there is a possibility that any reduced quota would not be implemented in time for NMFS to calculate the 2008 IFQ allocations. In that case, NMFS would have to issue allocation based on the higher quota currently in effect and then revoke some of that allocation later if the lower quota is implemented. This would be extremely disruptive to the industry and would likely result in overfishing, contrary to the rebuilding plan and a recent court order. To avoid this possible scenario, if Amendment 27/14 is approved but any final rule has not been implemented in time for NMFS to calculate and issue 2008 IFQ allocations, NMFS would initially calculate the 2008 IFQ allocations based on the Council's proposed commercial quota of 2.55 million lb (1.16 million kg) and, if necessary, make adjustments to allocations consistent with the actual 2008 quota when it is implemented.

Classification

The Administrator, Southeast Region, NMFS, (RA), has determined that this temporary rule is necessary to reduce overfishing of red snapper in the Gulf of Mexico, until more permanent measures are implemented, and is consistent with the Magnuson-Stevens Act and other applicable laws. The Council has prepared Amendment 27/14 to address red snapper overfishing issues on a permanent basis.

This temporary rule has been determined to be significant for purposes of Executive Order 12866.

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

An FEIS was prepared for the interim measures contained in the April 2, 2007 interim rule. Because the conditions that existed at the time the April 2, 2007, interim rule was implemented have not changed, the impacts of continuing the interim measures through this extension have already been considered. Copies of the FEIS are available from NMFS (see ADDRESSES).

The Assistant Administrator for Fisheries, NOAA (AA) finds good cause under U.S.C. 553 (b)(B) to waive prior notice and opportunity for public comment on this interim rule extension. This rule would continue interim measures implemented by the April 2, 2007 interim rule, for no more than an additional 186 days beyond the current expiration date of September 29, 2007. If the measures are not extended before the current rule lapses on that date, overfishing is certain to occur, contrary to the Magnuson-Stevens Act, the rebuilding plan for red snapper, and a recent court order. The conditions prompting the initial interim rule still remain, and NMFS is still considering more permanent measures recommended in Amendment 27/14. Opportunity for public comment was solicited on the interim proposed rule (71 FR 75220, December 14, 2006) and NMFS responded to those comments in the interim final rule (72 FR 15617, April 2, 2007). Failure to extend these measures would result in additional overfishing of Gulf red snapper and would jeopardize the success of the proposed new stock rebuilding plan. The amendment providing an option for a special procedure for the initial calculation of Gulf of Mexico red snapper 2008 individual fishing quota allocations is also necessary to avoid overfishing and potential confusion and disruption among red snapper IFQ participants that would otherwise result from initial issuance of 2008 IFQ allocation based on a higher quota that may be reduced just prior to or during the beginning of the 2008 fishing season. If this occurred NMFS would have to initially issue higher allocations and subsequently revoke them when the lower quota is implemented. This would confuse IFQ participants and disrupt transactions (transfers) of IFQ shares and allocation among participants and would likely result in overfishing. Therefore the AA finds that it would be impractical and contrary to the public interest to delay the implementation of these measures by providing additional opportunities for public comment.

The AA also finds good cause under U.S.C. 553 (d)(3) to waive the delay of the effective date of this interim rule. A 30-day delayed effectiveness period of the extension of current measures would allow overfishing to continue on the red snapper stock and seriously increase the likelihood of frustrating the success of the new rebuilding plan prepared in compliance with a recent Court order. That order requires establishment of a new rebuilding plan, with a minimum probability of success of 50 percent, by December 12, 2007. Similarly, commercial red snapper fishermen need to know the amount of their minimum annual allocation well in advance to adequately plan their fishing business operations; avoid the loss of share and allocation trading opportunities; and avoid structuring future IFQ contracts based on a quota level that may not be available upon implementation of Amendment 27/14. Therefore, a delay in the effective date of the 2008 IFQ allocation procedures would be seriously and unnecessarily disruptive to the affected fishers. Therefore, NMFS finds good cause to waive the 30-day delay in effectiveness for both the extension of current measures and for the 2008 IFQ allocation procedures.

List of Subjects in 50 CFR Part 622

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

Dated: September 18, 2007.

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 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 § 622.16, paragraph (c)(9) is added to read as follows:

§ 622.16

Gulf red snapper individual fishing quota (IFQ) program.

* * * * *

(c) * * *

(9) Special procedure for initial calculation of 2008 IFQ allocations. The Gulf of Mexico Fishery Management Council has submitted an amendment to NMFS, that if approved, would reduce the commercial red snapper quota from 3.315 million lb (1.504 million kg) to 2.55 million lb (1.16 million kg) beginning January 1, 2008. NMFS must calculate and issue 2008 IFQ allocations prior to January 1, 2008. If the amendment is approved but the final rule has not been implemented in time for NMFS to calculate and issue 2008 IFQ allocations, NMFS would initially calculate the 2008 IFQ allocations based on the Council's proposed commercial quota of 2.55 million lb (1.16 million kg) and, if necessary, NMFS would make adjustments to allocations consistent with the actual 2008 quota when it is implemented.