Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Red Snapper Management Measures

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement provisions of a regulatory amendment prepared by the Gulf of Mexico Fishery Management Council (Council) in accordance with framework procedures for adjusting management measures of the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). This final rule modifies the recreational and commercial red snapper fishing seasons; allocates two-thirds of the commercial red snapper quota for the spring fishing season, with the remainder available for the fall fishing season; increases the recreational minimum size limit for red snapper; and reinstates a 4-fish recreational red snapper bag limit for captain and crew of for-hire vessels (charter vessels and headboats). The intended effect of this final rule is to maximize the economic benefits from the red snapper resource within the constraints of the stock rebuilding program for this overfished resource.

DATES:

This final rule is effective September 18, 2000, except for the amendment to § 622.34(l) which is effective September 1, 2000.

ADDRESSES:

Copies of the final regulatory flexibility analysis (FRFA) may be obtained from the Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702, telephone: 727-570-5305, fax: 727-570-5583, email: Richard.Raulerson@noaa.gov. Comments on any ambiguity or unnecessary complexity arising from the language used in this final rule should be addressed to the Regional Administrator, Southeast Region, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702.

FOR FURTHER INFORMATION CONTACT:

Dr. Roy E. Crabtree, telephone: 727-570-5305, fax: 727-570-5583, e-mail: Roy.Crabtree@noaa.gov.

SUPPLEMENTARY INFORMATION:

The reef fish fishery in the exclusive economic zone (EEZ) of the Gulf of Mexico is managed under the FMP. The FMP was prepared by the 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.

In accordance with the FMP's framework procedures, the Council recommended, and NMFS published, a proposed rule (65 FR 36656, June 9, 2000) to close the recreational red snapper fishery from January 1 through April 20 and from November 1 through December 31; increase the recreational minimum size limit for red snapper from 15 inches (38.1 cm) to 16 inches (40.6 cm) total length; reinstate a 4-fish recreational red snapper bag limit for captain and crew of for-hire vessels (charter vessels and headboats); reduce the openings of the spring commercial red snapper fishing season from 15 days per month to 10 days per month; delay the opening of the fall commercial red snapper fishing season from noon on September 1 to noon on October 1; and allocate two-thirds of the commercial red snapper quota for the spring fishing season, with the remainder available for the fall fishing season. The preamble to the proposed rule explained the need and rationale for these measures and also explained the relationship between the measures in this rule and a closely related interim rule (64 FR 71056, December 20, 1999) that was subsequently extended (65 FR 36643, June 9, 2000). Those descriptions are not repeated here.

Comments and Responses

Seven comments were received on the proposed rule. They are summarized and responded to here:

Comment 1: One individual commented that fishing regulations have become overly complex and, as a result, compliance has been reduced. This individual suggested that simplification of regulations be a priority.

Response: NMFS agrees that the current fishing regulations are complex and that complexity can confuse fishers and reduce compliance. NMFS agrees that regulations should be simplified where possible; however, any simplification must be consistent with the Magnuson-Stevens Act.

Comment 2: One individual stated that the allocation of 51 percent of the red snapper annual total allowable catch (TAC) to the commercial fishery was unfair and that more fish should be allocated to the recreational fishery. This individual also stated that the red snapper fishery in the eastern and western Gulf of Mexico should be managed separately.

Response: These issues were discussed at the November 1999 Council meeting when the Council voted to request an interim rule to set red snapper management measures for 2000. This final rule does not address the allocation of TAC or separate regulations for the eastern and western Gulf. The Council may choose to address these issues in the future through an FMP amendment.

Comment 3: Two comments objected to the delay in the opening of the fall commercial season from September 1 to October 1. One stated that prices are lower after Labor Day and that adverse weather in the fall creates a safety hazard if the season extends into November. This individual expressed a preference for an earlier rather than a later starting date.

Response: The economic information presented in the Council's regulatory amendment and deliberations by the Council suggest that a delay in the opening date of the fall season could increase economic benefits to the fishery. Based on statements by seafood dealers, the Council concluded that there is low demand for seafood in September but that demand and prices improve in October. Delaying the start of the fall commercial season until October is intended to make fresh red snapper available at a time when the consumer demand is greater and, thus, allow fishermen to get better prices for their catch. This delay will have no adverse impact on conservation of the red snapper resource; it merely adjusts the timing of when the allowable catch may be taken.

The delay in the start date will result in fishing activity later in the fall when cold fronts could produce windy conditions and rough seas. However, the delay will result in less likelihood of hurricanes or other tropical storms occurring during fishing periods. Thus, it is not clear that the delay will subject vessels to any increased danger at sea due to adverse weather.

Comment 4: One individual opposed the use of minimum size limits in the red snapper fishery based on his belief that most of the undersized fish released will die as a result of capture trauma. Two comments expressed opposition to the increase in the recreational minimum size limit because this could increase regulatory discards. Another comment stated that NMFS has underestimated bycatch mortality in the recreational fishery.

Response: NMFS is concerned with regulatory discards and the mortality rates of released red snapper. Based on the best scientific information now available, NMFS believes that minimum size limits are an effective conservation measure in this fishery. Minimum size limits are a widely used fishery management tool and are in part designed to allow females to spawn at least once before entering the fishery. This pool of protected mature females acts as a buffer against overfishing and recruitment failure in a severely overfished stock. The effectiveness of this strategy depends on the survival rate of released fish. NMFS' stock assessments incorporate a survival rate of 80 percent for released red snapper in the recreational fishery and 67 percent in the commercial fishery based on the best available scientific information. NMFS is currently reviewing recent studies on the release mortality rates of red snapper and will recommend the Council consider any appropriate changes in management measures, if justified.

Comment 5: One comment objected to the status quo TAC of 9.12 million lb (4.14 million kg) and stated that the TAC should be no greater than 5.8 million lb (2.63 million kg). This comment also raised concerns that the overfishing objective for red snapper in the FMP has not been amended to reflect the requirements of the Sustainable Fisheries Act (SFA) regarding preventing overfishing and rebuilding overfished stocks. Two comments stated that the rule could result in unacceptably high fishing mortality rates and that TAC may be too high. They stated that fishery management plans must prevent, not merely reduce, overfishing and expressed concerns that overfishing continues to occur in the red snapper fishery. These two comments urged NMFS to work with the Council to establish interim rebuilding goals.

Response: The Council recommended no change to the status quo TAC of 9.12 million lb (4.14 million kg) in its proposed regulatory amendment; thus, this rule does not address or alter the current TAC.

The 1999 red snapper stock assessment included a wide range of estimates of maximum sustainable yield (MSY) and the stock biomass associated with MSY. NMFS recognizes that there is considerable uncertainty associated with these estimates and that the Council has latitude to consider this uncertainty when developing a new stock rebuilding plan. Conditions approaching those estimated to exist near MSY for red snapper have not been seen in decades, and, thus, the assessment models require assumptions regarding the productivity of the stock in predicting MSY. The SFA requires greater reductions in the red snapper harvest and in shrimp trawl bycatch mortality of juvenile red snapper than did previous management targets. Depending on the reduction of red snapper bycatch mortality achieved in the shrimp fishery and appropriate stock rebuilding parameters, the Council's 1999 Reef Fish Stock Assessment Panel estimates of acceptable biological catch for TAC range from 0 to 9.12 million lb (0 to 4.14 million kg). The best available scientific information indicates that the 9.12 million-lb (4.14 million-kg) TAC for 2000 may slow the rate of recovery in the early years of any stock rebuilding program but would not jeopardize recovery of the stock consistent with the rebuilding requirements of the Magnuson-Stevens Act, particularly if greater reductions in bycatch mortality are achieved, as expected. However, an immediate and significant reduction in TAC would have serious adverse economic effects upon participants in the fishery.

NMFS agrees that additional action is required to establish a rebuilding plan for red snapper that is consistent with the requirements of the SFA. Section 304(e)(4)(A) of the Magnuson-Stevens Act states that for overfished stocks, fishery management plans must specify a time period for ending overfishing and rebuilding the fishery. On November 17, 1999, NMFS disapproved the red snapper rebuilding plan proposed for the Council's Generic SFA Amendment. NMFS disapproved the plan because it specified a fishing-mortality-based rebuilding target rather than a biomass-based target and because it did not estimate the time to rebuild in the absence of fishing mortality consistent with the requirements of the Magnuson-Stevens Act (as amended by the SFA) and the national standard guidelines. The Magnuson-Stevens Act, as amended by the SFA, mandates that overfished stocks be rebuilt to a biomass level capable of producing MSY. Until a new rebuilding plan is implemented, NMFS will continue to base red snapper management upon the criteria specified in the FMP. The NMFS Southeast Fisheries Science Center has determined that the status quo TAC is compatible with the FMP's existing stock rebuilding plan, provided that bycatch reduction of at least 50 percent will be achieved in year 2000 and beyond, that harvests will not exceed quotas, and that future recruitment, on average, will increase as spawning stock biomass increases.

At the July 2000 Council meeting, NMFS presented a draft red snapper stock rebuilding plan for the Council's consideration that specifies a timeframe for ending overfishing and achieves recovery of the stock within the allowed timeframe. To address uncertainty in the current assessment of the status of the stock and the magnitude of biomass-based rebuilding targets, the rebuilding plan contains interim rebuilding goals to ensure that adequate progress is made toward stock recovery. The Council has referred this plan to its Reef Fish Stock Assessment Panel for review in August 2000. The Council must take action to recommend this or another rebuilding plan that is in compliance with the Magnuson-Stevens Act.

Comment 6: Two comments stated that a set recreational fishing season (April 21 to October 31) violates the Magnuson-Stevens Act requirement that the red snapper recreational fishery be closed once the quota is reached. These two comments and another comment raised concerns that the recreational fishery has consistently exceeded its quota.

Response: The Magnuson-Stevens Act requires that the Gulf of Mexico red snapper recreational fishery be closed when the quota is reached. To comply with this requirement, NMFS works with the Council to implement red snapper recreational fishery management measures and establish closure dates that, based upon the best available scientific information, are likely to result in annual recreational catches that approximate the quota. NMFS uses a computer simulation model to project estimates of how many fish will be caught for various time periods based on a lengthy historical database. Establishing fishery closure dates based on projections is the only practicable method of setting such dates. This is because the real-time data are not available soon enough toward the end of the fishing season to allow for the evaluation and analysis necessary to determine the appropriate closure date and implement it in time to prevent quota overages. The intent of the interim rule issued December 20, 1999, and extended on June 9, 2000, as well as this final rule, which replaces the interim rule, is to reduce overfishing of red snapper by increasing the likelihood of compatible fishery closures by the Gulf states. In turn, a higher level of compliance should result and, thus, reduce the probability of exceeding the recreational quota in 2000.

Comment 7: One comment stated that shrimp trawl bycatch reduction devices (BRDs) reduce red snapper juvenile mortality by only 17 to 26 percent, less than the 40-percent level NMFS believes was achieved in 1999.

Response: NMFS disagrees. NMFS currently estimates that BRDs reduce red snapper bycatch mortality by approximately 40 percent and that greater reductions in 2000 are likely to result from changes in the design of acceptable BRDs and from improvements in industry's ability to use BRDs effectively as experience is gained. The 1999 Reef Fish Stock Assessment Panel also concluded that bycatch mortality for red snapper in 1999 was reduced about 40 percent. The improvement in BRD performance in 1999 is, in part, a result of the elimination of the configuration that resulted in the elephant ear flap obstructing the opening of the BRD.

Classification

This final rule has been determined to be not significant for purposes of E.O. 12866.

NMFS prepared an FRFA for this final rule, based on the initial regulatory flexibility analysis (IRFA) and public comments. A summary of the FRFA follows.

The regulatory amendment implemented by this final rule was prepared by the Council and submitted to NMFS for review, approval, and implementation under authority of the Magnuson-Stevens Act. The Council concluded that the proposed rule, if adopted, would have a significant economic impact on a substantial number of small business entities and prepared an IRFA. Management changes under this rule that will have an economic impact on small entities include increasing the recreational red snapper size limit from 15 inches (38.1 cm) to 16 inches (40.6 cm); allowing the captain and crew of for-hire vessels to retain a 4-fish bag limit; setting the recreational red snapper season from April 21 through October 31; starting the commercial spring season on February 1 and having mini-seasons of 10 days each month until the spring quota is reached; and, starting the fall mini-seasons (already established at 10 days per month) on October 1.

The primary FMP objective addressed by the rule is to establish a harvest level that will achieve a red snapper spawning potential ratio of 20 percent by the year 2019. This rule also has the objective of attempting to maximize the net benefits to be obtained from the TAC consistent with the primary FMP objective. Preliminary economic analyses by NMFS and management suggestions offered by red snapper stakeholders suggested that such improvements in net benefits were possible.

NMFS received seven comments on the proposed rule and categorized the comments according to subject matter, including comments that involve economic impacts on small entities. Two commercial fishermen from Texas objected to the delay in the opening of the fall commercial season from September 1 to October 1 on the basis that prices are allegedly lower after Labor Day and that adverse weather in the fall creates a safety hazard. However, NMFS analyses and statements by seafood dealers indicate that a delay in the opening date of the fall season will increase prices and economic benefits. NMFS recognizes that weather patterns vary in the Gulf of Mexico. Although the delayed opening could result in more exposure to cold front-related weather, it should reduce exposure to hurricanes that present a more severe safety risk. There were no changes to the proposed rule that resulted from these public comments.

The Council determined that 450 to 650 commercial vessels representing small entities would be directly affected by the rule. Most of the vessels use handline gear, have an average length of 38 ft (11.6 m) and generate average annual gross revenues of about $52,000. About 1,200 charterboats and headboats representing small entities would be affected by the rule. The charterboat businesses use boats that average 37 ft (11.3 m) in length and generate about $56,000 in sales, while the headboats have an average length of 62 feet (18.9 m) and have annual receipts of about $140,000. No additional reporting, record keeping, or other compliance requirements by small entities are contained in the final rule.

Four alternatives, including the status quo of a minimum size limit of 15 inches (38.1 cm) total length, were identified for the proposal to increase the recreational red snapper size limit to 16 inches (40.6 cm). The status quo and a lower size limit of 14 inches (35.6 cm) were rejected because both alternatives would increase the rate of harvest and lead to a shorter season, thereby reducing the recreational value. An alternative of no size limit with a requirement to retain the first four fish was considered. This alternative was rejected because the biological evidence shows that the greater abundance of small fish would lead to a need to lower the TAC to maintain the spawning potential ratio goal. A lower TAC implies a lowering of economic benefits. An 18” minimum size limit was rejected because of comments from recreational fishermen that undersize released fish were suffering high release mortalities. A conservative approach, which considers that the release mortality could be higher than was originally assumed, argues against adoption of a substantially higher minimum size limit. The Council proposed a captain and crew bag limit allowance of four fish and considered the status quo of no bag limits for captain and crew. Although the RIR found that the captain and crew bag limit may lead to a reduction in net economic benefits, the Council chose the alternative because it believed that the benefits from a longer season would not exceed the loss of harvest privileges for captain and crew. The Council considered five alternatives, including the status quo, to their proposal to set a recreational red snapper season and to give the Regional Administrator, Southeast Region, NMFS (Regional Administrator) the authority to delay the opening date in an attempt to accommodate additional landings related to the action allowing a 4-fish bag limit for captain and crew of for-hire vessels. Under the status quo, the season starts on January 1 and closes when the quota is met. The status quo has resulted in short seasons that eliminate some of the more profitable for-hire fishing trips that occur later in the year. For the 2000 fishing season, under status quo conditions the fishery is projected to remain open 210 days, allow 192,000 red snapper target trips, and produce approximately $41 million in angler consumer surplus. The Council investigated suitable alternatives to increase angler participation and consumer surplus and initially chose the April 15 through October 31 alternative. This scenario results in a 200-day fishing season, which is 10 days shorter than the status quo season but would accommodate 199,000 red snapper target trips because the season would extend into the more intensely fished fall months. This level of effort would produce approximately $42 million in angler consumer surplus, or $1 million more than the status quo. However, the current regulations still require a closure whenever the quota is determined to be met, and the RIR indicates that trips occurring later in the season are more valuable than trips occurring earlier in the year. For this reason, the Council also proposed giving the Regional Administrator the authority to delay the opening date to accommodate overruns that were otherwise projected to be associated with the captain and crew bag limits. The intent was to maintain the October 31 closing date while keeping the recreational sector within its quota. The date chosen by the Regional Administrator was April 21 and that date appears in the final rule. This scenario would result in a 194-day fishing season. Total consumer surplus would remain approximately equal to that of the status quo at $41 million, yet approximately 2,000 additional target trips would be allowed, for a total of 194,000 angler trips. The Council noted that an additional consequence of shifting the season may be the generation of geographically differential impacts, particularly within the for-hire sector. The for-hire fleet is relatively more active in the western Gulf, particularly Texas, during the winter months, and has fewer available target species than the eastern Gulf fleet, which prosecutes the fishery more heavily in the fall and has a greater number of available alternative species to target when the red snapper fishery is closed. Thus, closure of the fishery during the winter months in favor of an extended fall season, while increasing total effort and consumer surplus, may result in a disproportionate distribution of impacts. To address this concern, a rejected alternative was to open the recreational season for January and February, close it for late winter, reopen at an unspecified date in the spring or summer and then close it for the year whenever the quota was met. This approach would attempt to maximize for-hire profits through more closely linking the open seasons with the high vacation seasons in the different areas of the Gulf of Mexico. Since there was not enough information available to evaluate the economic consequences of the alternative, notably the absence of information on how fishing patterns might shift, and there was also no spring/summer opening date specified, the economic outcome of the alternative could not be evaluated. An additional rejected recreational alternative to address the regionally variable demand patterns would split the Gulf of Mexico into subregions with the possibility of different seasons, sub-allocations, size limits and bag limits. This alternative was rejected based on a determination by NOAA's General Counsel that the alternative could not be considered under a regulatory amendment but would require a full FMP amendment.

The Council set specific regulations for the spring and fall commercial seasons in order to maximize economic benefits. For the spring season, the Council proposed starting the season on February 1 and having mini-seasons of 10 days each month until the spring quota is reached. The status quo alternative of 15 day mini-seasons in the spring was rejected because an economic analysis conducted by NMFS and included in the RIR indicated an increase of net benefits from the shorter mini-seasons. The fall mini-seasons were already established at 10 days per month, so the Council elected to maintain the status quo from that respect. However, the Council proposed to initiate the fall season on October 1 versus the status quo of September 1 because demand and prices tend to be higher in October, and the delay would have no adverse impact on conservation of red snapper.

Copies of the FRFA are available (see ADDRESSES).

The amendment to § 622.34(l) delays the opening of the fall commercial red snapper fishing season from noon on September 1 to noon on October 1. This delayed opening was proposed initially by representatives of the commercial red snapper fishing industry who believed that the later opening date would help to optimize revenues derived from the available fall commercial quota. Seafood dealers have stated that both the demand for seafood and ex-vessel prices are higher in October than in September. The delayed opening is intended to increase revenues to commercial harvesters and to help ensure that fresh red snapper are available when consumer demand is greatest. To ensure that these benefits are achieved for the fall 2000 fishing season, the amendment to § 622.34(l) must be effective no later than September 1, 2000. Accordingly, under 5 U.S.C. 553(d)(3), the Assistant Administrator for Fisheries, NOAA, finds for good cause that a 30-day delay in the effective date of § 622.34(l) would be contrary to the public interest.

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 final rule. Such comments should be directed 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

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 § 622.34, paragraph (n) is removed and reserved; the suspension of paragraph (l) is lifted; and paragraphs (l) and (m) are revised to read as follows:

3. In § 622.37, paragraph (d)(1)(vi) is removed; the suspension of paragraph (d)(1)(iv) is lifted; and paragraph (d)(1)(iv) is revised to read as follows:

4. In § 622.39, paragraphs (b)(1)(viii) and (b)(1)(ix) are removed; the suspensions of paragraphs (b)(1)(iii) and (b)(1)(v) are lifted; and paragraph (b)(1)(iii) is revised to read as follows:

5. In § 622.42, paragraphs (a)(1)(i)(A) and (a)(1)(i)(B) are revised to read as follows: