Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Emergency Rule to Re-Open the Recreational Red Snapper Season, 49883-49885 [2010-20191]
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Federal Register / Vol. 75, No. 157 / Monday, August 16, 2010 / Proposed Rules
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket No. 100713296–0333–01]
RIN 0648–BA06
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; Reef Fish
Fishery of the Gulf of Mexico;
Emergency Rule to Re-Open the
Recreational Red Snapper Season
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed emergency rule;
request for comments.
AGENCY:
NMFS issues this proposed
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. Such a
re-opening would only occur if NMFS
determines that the recreational red
snapper quota was not met by the 12:01
a.m., local time, July 24, 2010, closure
date. Because of the Deepwater Horizon
MC252 oil spill and the associated largearea fishery closure (fishery closed area)
in the north-central Gulf, the Gulf of
Mexico Fishery Management Council
(Council) requested NMFS publish this
proposed emergency rule. The Council
does not expect the recreational quota
will be reached by the closure date
because the fishery closed area is
located where a substantial portion of
the recreational red snapper fishing
effort occurs. The intent of this
rulemaking is to provide fishermen the
opportunity to harvest the recreational
red snapper quota, and flexibility to
achieve the optimum yield for the
fishery, thus enhancing social and
economic benefits to the fishery.
DATES: Comments must be received no
later than 5 p.m., eastern time, on
August 31, 2010.
ADDRESSES: You may submit comments,
identified by ‘‘0648–BA06’’, by any one
of the following methods:
• Electronic Submissions: Submit all
electronic public comments via the
Federal e-Rulemaking Portal http://
www.regulations.gov.
• Fax: 727–824–5308, Attn: Steve
Branstetter.
• Mail: Steve Branstetter, Southeast
Regional Office, NMFS, 263 13th
Avenue South, St. Petersburg, FL 33701.
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SUMMARY:
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Instructions: No comments will be
posted for public viewing until after the
comment period is over. All comments
received are a part of the public record
and will generally be posted to http://
www.regulations.gov without change.
All Personal Identifying Information (for
example, name, address, etc.)
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit Confidential Business
Information or otherwise sensitive or
protected information.
To submit comments through the
Federal e-Rulemaking Portal: http://
www.regulations.gov, enter ‘‘NOAANMFS–2010–0124 ‘‘ in the keyword
search, then check the box labeled
‘‘Select to find documents accepting
comments or submissions’’, then select
‘‘Send a Comment or Submission.’’
NMFS will accept anonymous
comments (enter N/A in the required
fields, if you wish to remain
anonymous). Attachments to electronic
comments will be accepted in Microsoft
Word, Excel, WordPerfect, or Adobe
PDF file formats only.
Copies of the environmental
assessment, the initial regulatory
flexibility analysis (IRFA), 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 steve.branstetter@noaa.gov;
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 (Magnuson-Stevens Act). The
Magnuson-Stevens Act provides the
legal authority for the promulgation of
emergency regulations under section
305(c).
Background
On April 20, 2010, an incident
involving a deepwater oil drilling
platform occurred approximately 50
miles (80.5 km) southeast of Venice,
Louisiana. An explosion and subsequent
fire damaged the Deepwater Horizon
MC252 oil rig, which capsized and sank.
Oil has continued to flow into the Gulf
from a damaged well head on the sea
floor. In response to the Deepwater
Horizon MC252 oil spill, NMFS issued
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49883
a series of emergency rules (75 FR
24822, May 6, 2010; 75 FR 26679, May
12, 2010; 75 FR 27217, May 14, 2010)
to close a portion of the Gulf exclusive
economic zone (EEZ) to all fishing.
NMFS continues to adjust the spatial
dimensions of the fishery closed area as
new information becomes available
regarding areas affected by the oil.
Currently, EEZ waters are closed to all
fishing from western Louisiana eastward
to Pensacola, Florida, and reopened to
finfish only in the EEZ waters from
Pensacola to Cape San Blas, Florida.
This fishery closed area has had a severe
impact on recreational fishing efforts
within the north-central Gulf, which is
the primary fishing area for red snapper
by the recreational sector.
The recreational red snapper fishing
season opened on June 1, 2010, and the
fishing season ends on September 30,
2010 (in accordance with regulations at
50 CFR part 622.34(m)), unless the
quota is met before this date, in which
case NMFS will publish a notification in
the Federal Register announcing an
earlier closure date. NMFS announced
the closure date on May 3, 2010 (75 FR
23186), through a final rule that
adjusted the recreational and
commercial quotas for the red snapper.
The closure date for the recreational red
snapper season of 12:01 a.m., local time,
July 24, 2010, was based on projections
of when the recreational red snapper
quota would be met.
Need for This Proposed Emergency Rule
Because of the Deepwater Horizon
MC252 oil spill and the associated
fishery closed area, the Council did not
expect the recreational red snapper
quota would be met by the projected
closure date. Therefore, in a letter to the
RA dated June 23, 2010, the Council
requested that NMFS promulgate
emergency regulations authorizing the
RA to re-open the recreational red
snapper season after the September 30,
2010, closure. The re-opening would
only occur if NMFS determines that the
quota has not been met during the June
1 through July 23 open season and the
re-opening would otherwise be in
accordance with the Magnuson-Stevens
Act and other applicable law, taking
into account the best available science.
The ‘‘Policy Guidelines for the Use of
Emergency Rules’’ (62 FR 44421, August
21, 1997) list three criteria for
determining whether an emergency
exists.
(1) Results from recent, unforeseen
events or recently discovered
circumstances; and
(2) Presents serious conservation or
management problems in the fishery;
and
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Federal Register / Vol. 75, No. 157 / Monday, August 16, 2010 / Proposed Rules
(3) Can be addressed through
emergency regulations for which the
immediate benefits outweigh the value
of advance notice, public comment, and
deliberative consideration of the
impacts to the same extent as would be
expected under the normal rulemaking
process.
This proposed rule meets all three
criteria for promulgation of emergency
regulations. This rule meets the first
criteria for an emergency in that the
explosion and subsequent sinking of the
Deepwater Horizon MC252 oil rig and
subsequent uncontrolled release of oil
and the fishery closures it necessitated,
constitutes recent unforeseen
circumstances.
The rule meets the second criteria for
an emergency because the spread of oil,
which resulted in the need for an
unprecedented safety closure of more
than 30 percent of the Gulf, has
prevented fishermen from being able to
fish for red snapper in this area. This
reduction in fishing effort has resulted
in economic hardship to the recreational
fishing industry and reduced the
likelihood the 3.403 million lb (1.544
million kg) recreational quota would be
reached before the July 24 closing date.
The framework procedure under the
FMP authorizes the RA to re-open a
fishery that has been closed prematurely
to allow the quota to be filled, but such
authority extends only through
September 30 for the recreational red
snapper season.
The rule meets the third criteria for an
emergency because allowing the
recreational season to re-open after
September 30 will alleviate some of the
economic hardship caused by the
Deepwater Horizon MC252 oil spill.
Neither a regulatory amendment nor a
plan amendment can be implemented in
time to provide economic relief to the
recreational fishing community in 2010.
The Council has determined an
emergency rule is the only way to
provide these potential benefits.
However, based on the rationale
provided below, NMFS has included a
15-day comment period in this
rulemaking to solicit comments on the
economic effects associated with the
proposed regulations.
In accordance with the Council’s
request for emergency action, this
proposed rule would provide the
authority to the RA to re-open the
recreational red snapper season after
September 30 if it is determined the
quota was not met by July 24, thereby
providing fishermen the opportunity to
harvest the full recreational red snapper
quota. The intent of this rule is to
provide the flexibility necessary to
achieve optimum yield for the fishery
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and increase social and economic
benefits to fishery participants.
NMFS currently has the authority to
re-open the recreational red snapper
season prior to September 30. However,
because of the delay in obtaining
harvest data, it is likely a re-opening
could occur only a short time before
September 30. If substantial amounts of
recreational red snapper quota remain,
the quota may not be caught by
September 30. Without this rule, the
fishing season would close on
September 30 whether the quota was
met or not. A re-opening after
September 30 would have three possible
outcomes. In the first outcome, the
fishery closed area could remain closed
and re-opening the recreational red
snapper season would allow economic
and social benefits to accrue to those
fishermen who had access to the fishery
prior to the July 24 closure. Under a
second outcome, if the well head is
permanently capped and portions of the
current closed area are re-opened to
fishing, re-opening the recreational red
snapper season would allow economic
and social benefits to be distributed to
fishermen in different states and ports.
In the third outcome, delaying the
recreational red snapper season reopening until after September 30 could
increase the possibility of the fishery
closed area being even larger. As a
result, total economic benefits would be
reduced for any recreational red snapper
season re-opening. Because of these
potential effects, NMFS is soliciting
public comment on this proposed rule
before making a final determination.
Classification
This action is issued pursuant to
section 305(c) of the Magnuson-Stevens
Fishery Conservation and Management
Act (Magnuson-Stevens Act), 16 U.S.C.
1855(c).
This proposed emergency rule has
been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared an IRFA, as required
by section 603 of the Regulatory
Flexibility Act. The IRFA describes the
economic impact this proposed rule, if
adopted, would 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 this analysis is
available from NMFS (see ADDRESSES).
A summary of the analysis follows.
The purpose of this proposed rule is
to facilitate the harvest of optimum
yield and maximize the social and
economic benefits of the red snapper
component of the recreational sector of
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the reef fish fishery. This is expected to
be accomplished by providing an
opportunity for fishermen who were
prevented from fishing for or harvesting
red snapper as a result of oil-related
closures to fish for red snapper if it is
determined the quota was not been met
by July 24, 2010, and previously closed
waters are re-opened. The MagnusonStevens Act provides the statutory basis
for this proposed rule.
This proposed rule, if implemented,
would be expected to directly affect
federally permitted for-hire fishing
businesses that sell services to fish for
red snapper in the Gulf of Mexico. 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 Federal reef fish for-hire permits
that were valid (non-expired) and,
therefore, fishable for 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).
No other small entities have been
identified that would be expected to be
directly affected by this proposed
action.
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 expected to be directly
affected by this proposed rule are
determined for the purpose of this
analysis to be small business entities.
This proposed rule would not
establish any new reporting, record-
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keeping, or other compliance
requirements. No duplicative,
overlapping, or conflicting Federal rules
have been identified.
As previously discussed, this
proposed rule, if implemented, would
be expected to directly affect all for-hire
vessels that fish for red snapper. All
vessels that possess a Federal reef fish
for-hire permit may fish for red snapper.
There were 1,424 vessels that possessed
a valid (non-expired) Federal reef fish
for-hire permit in 2009. While not all
federally permitted reef fish for-hire
vessels fish for red snapper, all such
vessels are assumed, for the purpose of
this analysis, to be potentially directly
affected by this proposed rule.
It cannot be determined, with
available data, whether this proposed
rule, if implemented, would result in a
significant reduction in profits for a
substantial number of small entities.
Neither the number of affected entities
nor the magnitude of effects can be
determined with available data. This
proposed rule would allow for the reopening of the recreational red snapper
season after September 30 if the quota
has not been met during the June 1
through July 23 fishing season.
Assuming quota is available, re-opening
the season after September 30 rather
than prior to September 30 (which can
occur under the status quo), may result
in re-allocation of revenues and profits
from for-hire businesses in some areas
of the Gulf to businesses in other areas
of the Gulf. This could occur if
previously closed areas are re-opened
and fishermen in those areas are able to
go fishing, or if a larger area of the Gulf
is closed due to an expansion of the
presence of oil and fishermen in the
newly closed area are not able to fish.
Either situation may reduce the total
revenues and profits that accrue to all
relevant for-hire businesses.
While specific quota underages
cannot be forecast at this time, in the
absence of this proposed rule (status
quo), any re-opening, if appropriate and
practical, would occur prior to
September 30. As a result, resultant
economic benefits would likely accrue
to the same small business entities that
have been able to sell red snapper forhire trips during the June 1 through July
23 fishing season. Delaying the re-
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opening of the season until after
September 30 increases the opportunity
that the fishery closed area expands and
a reduction in revenues and profits for
for-hire businesses previously able to
operate in the fishery occurs. Delaying
the re-opening also increases the
opportunity that closed areas may be reopened to fishing in general.
While the re-opening of waters
previously closed due to the oil spill
would be expected to result in increased
revenues and profits for for-hire
businesses in adjacent communities, the
total revenues associated with the
remaining red snapper quota would
potentially be distributed over a larger
number of businesses (businesses near
previously open areas and those near
newly opened areas), resulting in a
redistribution of revenues and a
reduction in revenues to businesses that
might have had less competitive access
to the resource prior to September 30.
Thus, re-opening of the red snapper
recreational season after September 30
could result in decreased profits overall
(if the fishery closed area expands), and
decreased profits for some business
entities due to a re-distribution of
revenues. However, due to uncertainty
associated with these findings, public
comment is solicited on whether this
proposed rule would be expected to
result in a significant reduction in
profits for a substantial number of small
entities.
Two alternatives to the proposed
action were considered. The first
alternative to the proposed action would
not allow any re-opening either before
or after September 30 of recreational red
snapper season if the quota is not met
during the June 1 through July 23
season. Failure to re-open the season
and not allow the quota to be harvested
would be expected to result in reduced
profits to small business entities than
the proposed action and would not
achieve the Council’s objectives.
The second alternative to the
proposed action would re-open the
recreational red snapper season before
September 30 if quota is available
(status quo). It cannot be determined
with available data whether this
alternative would be expected to result
in an increase or decrease in profits to
small business entities compared to the
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49885
proposed action. If the season is reopened before September 30, benefits
could continue to accrue to fishermen
who were fishing in the open areas
before July 24. However, if the season
re-opens after September 30, more of the
fishery closed area could be re-opened
and benefits could be dispersed among
fishermen who were fishing before July
24 as well as additional fishermen in or
from other states or ports. Therefore,
this alternative would not increase, as
much as the proposed action, the
opportunity for fishermen who have
been prevented from fishing for or
harvesting red snapper as a result of the
fishery closed area to fish for any red
snapper quota that is available after July
23. As a result, this alternative would
not achieve the Council’s objectives.
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico,
Reporting and recordkeeping
requirements, Virgin Islands.
Dated: August 11, 2010.
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 proposed
to be 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 (m) is
revised to read as follows:
§ 622.34 Gulf EEZ seasonal and/or area
closures.
*
*
*
*
*
(m) 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, each year. During the closure, the
bag and possession limit for red snapper
in or from the Gulf EEZ is zero.
*
*
*
*
*
[FR Doc. 2010–20191 Filed 8–11–10; 4:15 pm]
BILLING CODE 3510–22–S
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Agencies
[Federal Register Volume 75, Number 157 (Monday, August 16, 2010)]
[Proposed Rules]
[Pages 49883-49885]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-20191]
[[Page 49883]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 100713296-0333-01]
RIN 0648-BA06
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Reef Fish Fishery of the Gulf of Mexico; Emergency Rule to Re-Open the
Recreational Red Snapper Season
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed emergency rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this proposed 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. Such a re-opening would only occur
if NMFS determines that the recreational red snapper quota was not met
by the 12:01 a.m., local time, July 24, 2010, closure date. Because of
the Deepwater Horizon MC252 oil spill and the associated large-area
fishery closure (fishery closed area) in the north-central Gulf, the
Gulf of Mexico Fishery Management Council (Council) requested NMFS
publish this proposed emergency rule. The Council does not expect the
recreational quota will be reached by the closure date because the
fishery closed area is located where a substantial portion of the
recreational red snapper fishing effort occurs. The intent of this
rulemaking is to provide fishermen the opportunity to harvest the
recreational red snapper quota, and flexibility to achieve the optimum
yield for the fishery, thus enhancing social and economic benefits to
the fishery.
DATES: Comments must be received no later than 5 p.m., eastern time, on
August 31, 2010.
ADDRESSES: You may submit comments, identified by ``0648-BA06'', by any
one of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal e-Rulemaking Portal http://www.regulations.gov.
Fax: 727-824-5308, Attn: Steve Branstetter.
Mail: Steve Branstetter, Southeast Regional Office, NMFS,
263 13th Avenue South, St. Petersburg, FL 33701.
Instructions: No comments will be posted for public viewing until
after the comment period is over. All comments received are a part of
the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying
Information (for example, name, address, etc.) voluntarily submitted by
the commenter may be publicly accessible. Do not submit Confidential
Business Information or otherwise sensitive or protected information.
To submit comments through the Federal e-Rulemaking Portal: http://www.regulations.gov, enter ``NOAA-NMFS-2010-0124 `` in the keyword
search, then check the box labeled ``Select to find documents accepting
comments or submissions'', then select ``Send a Comment or
Submission.'' NMFS will accept anonymous comments (enter N/A in the
required fields, if you wish to remain anonymous). Attachments to
electronic comments will be accepted in Microsoft Word, Excel,
WordPerfect, or Adobe PDF file formats only.
Copies of the environmental assessment, the initial regulatory
flexibility analysis (IRFA), 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 steve.branstetter@noaa.gov; 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 (Magnuson-
Stevens Act). The Magnuson-Stevens Act provides the legal authority for
the promulgation of emergency regulations under section 305(c).
Background
On April 20, 2010, an incident involving a deepwater oil drilling
platform occurred approximately 50 miles (80.5 km) southeast of Venice,
Louisiana. An explosion and subsequent fire damaged the Deepwater
Horizon MC252 oil rig, which capsized and sank. Oil has continued to
flow into the Gulf from a damaged well head on the sea floor. In
response to the Deepwater Horizon MC252 oil spill, NMFS issued a series
of emergency rules (75 FR 24822, May 6, 2010; 75 FR 26679, May 12,
2010; 75 FR 27217, May 14, 2010) to close a portion of the Gulf
exclusive economic zone (EEZ) to all fishing. NMFS continues to adjust
the spatial dimensions of the fishery closed area as new information
becomes available regarding areas affected by the oil. Currently, EEZ
waters are closed to all fishing from western Louisiana eastward to
Pensacola, Florida, and reopened to finfish only in the EEZ waters from
Pensacola to Cape San Blas, Florida. This fishery closed area has had a
severe impact on recreational fishing efforts within the north-central
Gulf, which is the primary fishing area for red snapper by the
recreational sector.
The recreational red snapper fishing season opened on June 1, 2010,
and the fishing season ends on September 30, 2010 (in accordance with
regulations at 50 CFR part 622.34(m)), unless the quota is met before
this date, in which case NMFS will publish a notification in the
Federal Register announcing an earlier closure date. NMFS announced the
closure date on May 3, 2010 (75 FR 23186), through a final rule that
adjusted the recreational and commercial quotas for the red snapper.
The closure date for the recreational red snapper season of 12:01 a.m.,
local time, July 24, 2010, was based on projections of when the
recreational red snapper quota would be met.
Need for This Proposed Emergency Rule
Because of the Deepwater Horizon MC252 oil spill and the associated
fishery closed area, the Council did not expect the recreational red
snapper quota would be met by the projected closure date. Therefore, in
a letter to the RA dated June 23, 2010, the Council requested that NMFS
promulgate emergency regulations authorizing the RA to re-open the
recreational red snapper season after the September 30, 2010, closure.
The re-opening would only occur if NMFS determines that the quota has
not been met during the June 1 through July 23 open season and the re-
opening would otherwise be in accordance with the Magnuson-Stevens Act
and other applicable law, taking into account the best available
science. The ``Policy Guidelines for the Use of Emergency Rules'' (62
FR 44421, August 21, 1997) list three criteria for determining whether
an emergency exists.
(1) Results from recent, unforeseen events or recently discovered
circumstances; and
(2) Presents serious conservation or management problems in the
fishery; and
[[Page 49884]]
(3) Can be addressed through emergency regulations for which the
immediate benefits outweigh the value of advance notice, public
comment, and deliberative consideration of the impacts to the same
extent as would be expected under the normal rulemaking process.
This proposed rule meets all three criteria for promulgation of
emergency regulations. This rule meets the first criteria for an
emergency in that the explosion and subsequent sinking of the Deepwater
Horizon MC252 oil rig and subsequent uncontrolled release of oil and
the fishery closures it necessitated, constitutes recent unforeseen
circumstances.
The rule meets the second criteria for an emergency because the
spread of oil, which resulted in the need for an unprecedented safety
closure of more than 30 percent of the Gulf, has prevented fishermen
from being able to fish for red snapper in this area. This reduction in
fishing effort has resulted in economic hardship to the recreational
fishing industry and reduced the likelihood the 3.403 million lb (1.544
million kg) recreational quota would be reached before the July 24
closing date. The framework procedure under the FMP authorizes the RA
to re-open a fishery that has been closed prematurely to allow the
quota to be filled, but such authority extends only through September
30 for the recreational red snapper season.
The rule meets the third criteria for an emergency because allowing
the recreational season to re-open after September 30 will alleviate
some of the economic hardship caused by the Deepwater Horizon MC252 oil
spill. Neither a regulatory amendment nor a plan amendment can be
implemented in time to provide economic relief to the recreational
fishing community in 2010. The Council has determined an emergency rule
is the only way to provide these potential benefits. However, based on
the rationale provided below, NMFS has included a 15-day comment period
in this rulemaking to solicit comments on the economic effects
associated with the proposed regulations.
In accordance with the Council's request for emergency action, this
proposed rule would provide the authority to the RA to re-open the
recreational red snapper season after September 30 if it is determined
the quota was not met by July 24, thereby providing fishermen the
opportunity to harvest the full recreational red snapper quota. The
intent of this rule is to provide the flexibility necessary to achieve
optimum yield for the fishery and increase social and economic benefits
to fishery participants.
NMFS currently has the authority to re-open the recreational red
snapper season prior to September 30. However, because of the delay in
obtaining harvest data, it is likely a re-opening could occur only a
short time before September 30. If substantial amounts of recreational
red snapper quota remain, the quota may not be caught by September 30.
Without this rule, the fishing season would close on September 30
whether the quota was met or not. A re-opening after September 30 would
have three possible outcomes. In the first outcome, the fishery closed
area could remain closed and re-opening the recreational red snapper
season would allow economic and social benefits to accrue to those
fishermen who had access to the fishery prior to the July 24 closure.
Under a second outcome, if the well head is permanently capped and
portions of the current closed area are re-opened to fishing, re-
opening the recreational red snapper season would allow economic and
social benefits to be distributed to fishermen in different states and
ports. In the third outcome, delaying the recreational red snapper
season re-opening until after September 30 could increase the
possibility of the fishery closed area being even larger. As a result,
total economic benefits would be reduced for any recreational red
snapper season re-opening. Because of these potential effects, NMFS is
soliciting public comment on this proposed rule before making a final
determination.
Classification
This action is issued pursuant to section 305(c) of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act),
16 U.S.C. 1855(c).
This proposed emergency rule has been determined to be not
significant for purposes of Executive Order 12866.
NMFS prepared an IRFA, as required by section 603 of the Regulatory
Flexibility Act. The IRFA describes the economic impact this proposed
rule, if adopted, would 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 this analysis is
available from NMFS (see ADDRESSES). A summary of the analysis follows.
The purpose of this proposed rule is to facilitate the harvest of
optimum yield and maximize the social and economic benefits of the red
snapper component of the recreational sector of the reef fish fishery.
This is expected to be accomplished by providing an opportunity for
fishermen who were prevented from fishing for or harvesting red snapper
as a result of oil-related closures to fish for red snapper if it is
determined the quota was not been met by July 24, 2010, and previously
closed waters are re-opened. The Magnuson-Stevens Act provides the
statutory basis for this proposed rule.
This proposed rule, if implemented, would be expected to directly
affect federally permitted for-hire fishing businesses that sell
services to fish for red snapper in the Gulf of Mexico. 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 Federal reef fish for-hire permits that were valid (non-
expired) and, therefore, fishable for 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).
No other small entities have been identified that would be expected
to be directly affected by this proposed action.
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 expected to be directly
affected by this proposed rule are determined for the purpose of this
analysis to be small business entities.
This proposed rule would not establish any new reporting, record-
[[Page 49885]]
keeping, or other compliance requirements. No duplicative, overlapping,
or conflicting Federal rules have been identified.
As previously discussed, this proposed rule, if implemented, would
be expected to directly affect all for-hire vessels that fish for red
snapper. All vessels that possess a Federal reef fish for-hire permit
may fish for red snapper. There were 1,424 vessels that possessed a
valid (non-expired) Federal reef fish for-hire permit in 2009. While
not all federally permitted reef fish for-hire vessels fish for red
snapper, all such vessels are assumed, for the purpose of this
analysis, to be potentially directly affected by this proposed rule.
It cannot be determined, with available data, whether this proposed
rule, if implemented, would result in a significant reduction in
profits for a substantial number of small entities. Neither the number
of affected entities nor the magnitude of effects can be determined
with available data. This proposed rule would allow for the re-opening
of the recreational red snapper season after September 30 if the quota
has not been met during the June 1 through July 23 fishing season.
Assuming quota is available, re-opening the season after September 30
rather than prior to September 30 (which can occur under the status
quo), may result in re-allocation of revenues and profits from for-hire
businesses in some areas of the Gulf to businesses in other areas of
the Gulf. This could occur if previously closed areas are re-opened and
fishermen in those areas are able to go fishing, or if a larger area of
the Gulf is closed due to an expansion of the presence of oil and
fishermen in the newly closed area are not able to fish. Either
situation may reduce the total revenues and profits that accrue to all
relevant for-hire businesses.
While specific quota underages cannot be forecast at this time, in
the absence of this proposed rule (status quo), any re-opening, if
appropriate and practical, would occur prior to September 30. As a
result, resultant economic benefits would likely accrue to the same
small business entities that have been able to sell red snapper for-
hire trips during the June 1 through July 23 fishing season. Delaying
the re-opening of the season until after September 30 increases the
opportunity that the fishery closed area expands and a reduction in
revenues and profits for for-hire businesses previously able to operate
in the fishery occurs. Delaying the re-opening also increases the
opportunity that closed areas may be re-opened to fishing in general.
While the re-opening of waters previously closed due to the oil
spill would be expected to result in increased revenues and profits for
for-hire businesses in adjacent communities, the total revenues
associated with the remaining red snapper quota would potentially be
distributed over a larger number of businesses (businesses near
previously open areas and those near newly opened areas), resulting in
a redistribution of revenues and a reduction in revenues to businesses
that might have had less competitive access to the resource prior to
September 30.
Thus, re-opening of the red snapper recreational season after
September 30 could result in decreased profits overall (if the fishery
closed area expands), and decreased profits for some business entities
due to a re-distribution of revenues. However, due to uncertainty
associated with these findings, public comment is solicited on whether
this proposed rule would be expected to result in a significant
reduction in profits for a substantial number of small entities.
Two alternatives to the proposed action were considered. The first
alternative to the proposed action would not allow any re-opening
either before or after September 30 of recreational red snapper season
if the quota is not met during the June 1 through July 23 season.
Failure to re-open the season and not allow the quota to be harvested
would be expected to result in reduced profits to small business
entities than the proposed action and would not achieve the Council's
objectives.
The second alternative to the proposed action would re-open the
recreational red snapper season before September 30 if quota is
available (status quo). It cannot be determined with available data
whether this alternative would be expected to result in an increase or
decrease in profits to small business entities compared to the proposed
action. If the season is re-opened before September 30, benefits could
continue to accrue to fishermen who were fishing in the open areas
before July 24. However, if the season re-opens after September 30,
more of the fishery closed area could be re-opened and benefits could
be dispersed among fishermen who were fishing before July 24 as well as
additional fishermen in or from other states or ports. Therefore, this
alternative would not increase, as much as the proposed action, the
opportunity for fishermen who have been prevented from fishing for or
harvesting red snapper as a result of the fishery closed area to fish
for any red snapper quota that is available after July 23. As a result,
this alternative would not achieve the Council's objectives.
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
Dated: August 11, 2010.
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
proposed to be 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 Sec. 622.34, paragraph (m) is revised to read as follows:
Sec. 622.34 Gulf EEZ seasonal and/or area closures.
* * * * *
(m) 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, each year. During the closure, the bag
and possession limit for red snapper in or from the Gulf EEZ is zero.
* * * * *
[FR Doc. 2010-20191 Filed 8-11-10; 4:15 pm]
BILLING CODE 3510-22-S