[Federal Register Volume 70, Number 172 (Wednesday, September 7, 2005)]
[Proposed Rules]
[Pages 53142-53146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17713]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[I.D. 050405E]


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Petition for Emergency 
Rulemaking for Red Snapper

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

ACTION: Denial of a petition for emergency rulemaking.

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SUMMARY: NMFS announces its decision to deny a petition for emergency 
or interim rulemaking under the Administrative Procedure Act (APA) and 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The Coastal Conservation Association (CCA), a marine 
conservation group composed of approximately 90,000 members, petitioned 
the U.S. Department of Commerce to immediately promulgate an emergency 
or interim rule under the Magnuson-Stevens Act to prevent overfishing 
of red snapper resulting from bycatch in the shrimp trawl fishery of 
the Gulf of Mexico. NMFS finds the emergency or interim rulemaking is 
not warranted, and additional management measures to end overfishing of 
red snapper would better be addressed through a Gulf of Mexico Fishery 
Management Council (Council) regulatory amendment and development of a 
fishery management plan (FMP) amendment.

ADDRESSES: Copies of the NMFS decision on the CCA petition are 
available from Phil Steele, NMFS, Southeast Regional Office, 263 13th 
Avenue South, St. Petersburg, FL 33701; telephone: 727-824-5305, and 
via internet at: http://sero.nmfs.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Phil Steele, Fishery Administrator, 
NMFS, Southeast Regional Office; telephone: 727-824-5305; e-mail: 
<a href="/cdn-cgi/l/email-protection#d6a6bebfbaf8a5a2b3b3bab396b8b9b7b7f8b1b9a0"><span class="__cf_email__" data-cfemail="3b4b53525715484f5e5e575e7b55545a5a155c544d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: CCA filed a petition for emergency or 
interim rulemaking on March 29, 2005. NMFS published a notice of 
receipt of petition for rulemaking on May 12, 2005 (70 FR 39700), and 
invited public comments for 60 days ending July 11, 2005. Summaries of 
and responses to comments are provided in the Response to Public 
Comments section below.

The Petition

    The petition filed by CCA states the red snapper stock in the Gulf 
of Mexico is overfished and undergoing overfishing. Although the 
petition acknowledges the directed red snapper commercial and 
recreational sectors share responsibility for rebuilding the stock, it 
asserts the failure of bycatch reduction devices (BRDs) required in the 
commercial shrimp fishery to meet established bycatch reduction 
standards makes recovery of the Gulf red snapper fishery unlikely and 
ensures years of continued overfishing of this stock. The petition 
states the directed recreational and commercial red snapper sectors 
have already adopted many measures necessary to rebuild the stock. The 
petition seeks emergency regulations or interim measures to stop the 
overfishing resulting from excessive bycatch of juvenile red snapper in 
the Gulf shrimp fishery. The petition also suggests management measures 
such as bag limits and total allowable catch restrictions would be 
applicable to the directed red snapper fishery.
    The CCA petition states the prevention of overfishing and recovery 
of the red snapper stock is predicated on at least a 44-percent 
reduction from the average level of bycatch mortality on juvenile red 
snapper, age 0 and age 1, by the Gulf shrimp fishery during the years 
1984-1989. Further, because recent research indicates current BRD use, 
in practice, yields only a 12-percent bycatch reduction, CCA argues 
that the existing plan for preventing overfishing and rebuilding the 
red snapper stock must be declared a failure. CCA asserts the fisheries 
regulatory establishment is plainly aware of red snapper overfishing by 
the shrimp trawl fishery, but has failed to take corrective action. The 
petition requests NMFS immediately initiate emergency regulations or 
interim measures resulting in bycatch reduction sufficient to allow the 
red snapper stock to rebuild within the time period established in the 
Reef Fish Fishery Management Plan (Reef Fish FMP). The petition states 
such bycatch reduction measures should include strict bycatch quotas 
tracked by observer data, time and area closures or restrictions, 
improved BRDs, season limitations, seasonal closures, and/or other 
reduction measures. In addition, the petition states a firm bycatch 
reduction target of 60-80 percent of historic levels should be set, 
with a time line to achieve the target within the shortest period 
possible. The petition also proposes a mandated effort reduction 
program for the Gulf shrimp fleet.

History of NMFS and Council Efforts to Reduce Bycatch in the Shrimp 
Fishery

    Efforts to rebuild the red snapper stock are complicated by 
significant amounts of bycatch in the shrimp fishery. Ending 
overfishing and allowing the stock to rebuild cannot occur through 
regulations on the directed red snapper fishery alone. The shrimp 
fishery annually removes 25 to 45 million juvenile red snapper 
(approximately 2-5 million lb (0.9-2.3 million kg)), primarily from the 
western Gulf, whereas the directed fishery removes approximately 4 
million adult fish (approximately 9 million lb (4.1 million kg)) 
annually. The success of the red snapper rebuilding plan depends 
heavily on reductions in shrimp trawl bycatch.
    The Council recognized the inherent need to reduce red snapper 
bycatch in the shrimp fishery in 1997 when they approved Amendment 9 to 
the Shrimp Fishery Management Plan (Shrimp FMP). The purpose of this 
amendment was to reduce unwanted bycatch of juvenile red snapper in the 
shrimp fishery and, to the extent practicable, not adversely affect the 
shrimp fishery. Because of substantial fishing mortality on juvenile 
red snapper and the need to rebuild the overfished stock, the Council 
considered development and use of BRDs and other management measures to 
reduce bycatch. The Council approved a goal for reducing red snapper 
bycatch by 44 percent from the average annual mortality of age-0 and 
age-1 red snapper during 1984-1989. Upon approval of Amendment 9, the 
fisheye BRD and Andrews Turtle Excluder Device (Andrews TED) were the 
only two devices determined to be capable of reducing bycatch by the 
required amount; however, the Andrews TED was proposed to be certified 
as a BRD only during a time when and in a geographical area where it is 
an approved TED. On December 19, 1997, approval of the Andrews TED, as 
a TED, was withdrawn; therefore, the Andrews TED was not certified as a 
BRD in the final rule implementing Amendment 9. However, the framework 
procedure approved by the Council in Amendment 9 allowed for additional 
BRDs to be certified by NMFS. Cooperative industry/government research 
available in 1997 indicated the approved BRDs

[[Page 53143]]

would reduce red snapper bycatch by 58 to 77 percent.
    In 1998, an intensive monitoring effort quantified the 
effectiveness of the mandatory use of certified BRDs and evaluated the 
effectiveness of uncertified BRDs. The study found there were 
performance problems with the fisheye BRD in some configurations, and 
regulations were amended to modify the allowable placement of the 
fisheye BRD to improve performance and bycatch reduction. In 1999, BRD 
testing and certification procedures were established, and two new 
BRDs, the Jones-Davis BRD and ``Gulf'' fisheye BRD, were certified by 
NMFS after determining they exceeded the bycatch reduction goal. 
Available data in 1999 indicated these BRDs reduced red snapper 
mortality by 52 to 70 percent.
    Monitoring the performance of BRDs in the fishery continued through 
an observer program from 1999 to 2003, during which time the Council 
began development of a regulatory amendment, and subsequently Amendment 
22 to the Reef Fish FMP. The Council submitted a rebuilding plan to 
NMFS through a regulatory amendment in 2001. This amendment was 
returned to the Council by NMFS with a request to further explore 
alternative rebuilding plans based on realistic expectations for future 
reductions in shrimp trawl bycatch, and to more fully evaluate the 
effects of alternatives to reduce bycatch through a supplemental 
environmental impact statement. In 2004, the Council approved Amendment 
22, which established a rebuilding plan for red snapper based on the 
results of the 1999 stock assessment. The rebuilding plan was projected 
to end overfishing by 2009 or 2010, and rebuild the stock by 2032. The 
amendment called for large reductions in bycatch mortality from the 
shrimp fishery to be achieved either through technological means, such 
as improved BRD designs, and/or reductions in shrimp fishing effort. 
The selected rebuilding plan recognized the need for periodic reviews 
of the stock status to ensure the rebuilding plan was adequately 
progressing toward the rebuilding goal. Review of the plan was designed 
to incorporate new information and to address unanticipated 
developments in the red snapper and shrimp fisheries, and to make 
appropriate adjustments in red snapper regulations should insufficient 
or unexpectedly rapid rebuilding progress occur.
    In May 2004, the Council was presented with the results of the 
ongoing BRD observer study mentioned above. This study indicated BRDs, 
under actual fishing conditions, were reducing red snapper bycatch by 
11.7 percent, which was far less than previously documented during 
research trials. The study noted several changes in fishing practices 
and gear characteristics (e.g., increased haulback speeds, illegal BRD 
placement) reduced the performance of the fisheye BRD, the most 
commonly used BRD in the shrimp fishery. Results from a majority of 
trips where observers were aboard revealed BRDs were often placed in 
illegal net positions, resulting in poor BRD performance. However, BRD 
performance also was noted to be poor for legal installations due 
largely to alterations in fishing practices.
    The results of this BRD observer study were incorporated into the 
2005 red snapper stock assessment, which concluded red snapper 
continued to be overfished and undergoing overfishing. The conclusions 
of the assessment were consistent with previous assessments despite 
changes in stock status criteria and assessment methods. The Southeast 
Data, Assessment, and Review (SEDAR) Assessment Review Panel concluded 
red snapper fishing mortality rates are too high for both the directed 
fishery and shrimp fishery, and reductions in fishing mortality for 
both sectors would be needed to rebuild the stock.

Response to Assertions and Proposed Management Measures Set Forth in 
the Petition

    NMFS disagrees with CCA's assertion that management has failed to 
take action to address the problem of shrimp trawl bycatch of red 
snapper. As new information and research have become available, NMFS 
and the Council have taken corrective action to improve BRD performance 
and reduce shrimp trawl bycatch. Changes in both fishing practices and 
gear characteristics have significantly reduced the overall performance 
of BRDs relative to bycatch reduction rates previously documented 
during field trials. NMFS recognizes the success of the rebuilding plan 
is heavily dependent on reductions in shrimp trawl bycatch and effort. 
Amendment 22 acknowledged additional reductions in bycatch may be 
required in the future if reductions are not adequate through 
technological improvements. The Council also specified a periodic 
review of the rebuilding plan in order to make appropriate adjustments 
in red snapper regulations when new information, such as the most 
recent stock assessment and BRD performance research, became available.
    NMFS agrees with CCA's assertion that existing certified BRDs are 
now not achieving established reduction standards and additional 
reductions in shrimp trawl bycatch are needed to rebuild the stock. The 
rebuilding plan calls for large reductions in shrimp effort to occur 
through technological means and reductions in shrimp effort. Current 
BRD observer studies indicate only a 12-percent reduction in red 
snapper bycatch is occurring, which is well below the reduction needed 
to rebuild the stock. However, as indicated in Amendment 22 to the Reef 
Fish FMP, reductions in shrimp trawl bycatch are occurring as a result 
of reduced fishing effort associated with adverse economic conditions 
in the shrimp fishery resulting from increased competition from shrimp 
imports and rising fuel costs. Future declines in shrimp effort are 
predicted for large shrimp vessels (greater than or equal to 60 ft 
(18.3 m) in length). Such declines are likely to increase the rate of 
red snapper stock rebuilding and reduce fishing related bycatch in the 
early years of the rebuilding plan, aside from any management actions 
to reduce harvest. Since 2002, an 18-percent decrease in shrimp effort 
has occurred. Shrimp effort has decreased by 26-percent since the late 
1980s, resulting in lower fishing mortality rates on juvenile red 
snapper in more recent years.
    Based on the most recent stock assessment, fishing mortality rates 
in all sectors of the fishery are too high, and the Council will need 
to consider reducing fishing mortality rates to rebuild the stock. As 
explained in the Agency Decision section of this notice, NMFS believes 
actions to revise the red snapper rebuilding plan and reduce shrimp 
trawl bycatch are best addressed through Council regulatory amendment 
and FMP amendment, rather than emergency rule. The Council directed 
staff during their August 2005 Council meeting to begin immediately 
working on a regulatory amendment to modify certification procedures 
and protocols for BRDs, including decertification of ineffective BRDs 
and certification of new BRDs capable of achieving necessary reductions 
in finfish bycatch. The Council also directed staff to begin developing 
a joint reef fish/shrimp plan amendment that revises the red snapper 
rebuilding plan and addresses bycatch in both the directed red snapper 
fishery and shrimp fishery. NMFS agrees many of the measures proposed 
by CCA to address shrimp trawl bycatch should be considered in the plan 
amendment.
    NMFS and the Council have already begun to address effort 
limitation in the shrimp fishery and monitoring of shrimp bycatch. In 
May 2005, the Council approved Amendment 13 to the Shrimp FMP. This 
amendment, if

[[Page 53144]]

approved by NMFS, would establish a moratorium on shrimp licenses and 
allow for closer monitoring of the shrimp fishery in two ways. First, 
electronic logbook reporting, which tracks fishing effort (number of 
trips, length of trips, locations, etc.), would be required for 
commercial shrimp vessel permit holders. Second, the observer program 
would include bycatch reporting which will produce estimates of total 
annual finfish and invertebrate bycatch. The Council believes these 
actions will provide the best information to track effort and evaluate 
bycatch and modified BRD performance without unduly interfering with 
shrimp fishery operations. NMFS expects that Amendment 13, if approved, 
would be implemented early in 2006. The level of coverage for 
monitoring bycatch through the use of electronic logbooks and observers 
may vary with the availability of funding. Until such time as 
additional funding is available, management measures such as bycatch 
quotas would be impractical to consider for the shrimp fishery.
    The Council previously considered area and seasonal closures for 
reducing finfish bycatch in Amendments 9 and 10 to the Shrimp FMP. The 
Council rejected these measures because they were deemed costly and 
ineffective, and research at the time indicated BRDs reduced bycatch at 
a lower cost. Current regulations include several seasonal and area 
closures throughout the Gulf of Mexico in which trawling is prohibited. 
Trawl gear is also precluded from numerous areas throughout the Gulf 
because of oil and gas platforms, hard bottom habitat, and artificial 
reefs. The intent of existing seasonal and area closures is to protect 
small shrimp and habitat and reduce user conflicts. These closures were 
not intended to reduce bycatch, although this is an indirect benefit of 
these management actions.
    The Council considered a scoping document for Amendment 14 to the 
Shrimp FMP at their August 2005 meeting. The scoping document contained 
alternatives for further reducing shrimp bycatch, reducing shrimp 
effort, modifying bycatch reduction criteria, eliminating latent effort 
in the shrimp fishery, and requiring vessel monitoring systems aboard 
shrimp vessels. NMFS will continue to work closely with the Council to 
further develop a joint Shrimp and Reef Fish plan amendment evaluating 
these shrimp fishery bycatch alternatives, as well as alternatives for 
rebuilding the red snapper stock and reducing bycatch in the directed 
red snapper fishery.
    The petition also proposes setting a firm target for bycatch 
reduction of between 60 and 80 percent of historic levels, with a time 
line established to achieve the target within the shortest period 
possible. NMFS believes the target bycatch reduction goal should be set 
based on the results of the most recent stock assessment, taking into 
account the time needed to rebuild the stock and the practicability of 
further reductions in shrimp trawl bycatch.

Response to Comments

    NMFS received 7,630 form letters in favor of the petition to end 
overfishing of red snapper by minimizing shrimp trawl bycatch. NMFS 
received an additional 23 letters in response to the petition. Of those 
23 letters, 12 commenters supported the petition, and 11 commenters 
urged the petition be rejected or denied. NMFS' responses to these 
comments are provided below.
    Comment 1: A group of commenters stated the Federal government has 
failed to end overfishing of red snapper by the shrimp fishery despite 
legal requirements, and significant action is necessary to reduce 
bycatch and restore the red snapper stock.
    Response: The 2005 red snapper stock assessment indicated red 
snapper were overfished and undergoing overfishing. NMFS agrees action 
is needed to reduce bycatch in both the shrimp fishery and the directed 
red snapper fishery. Despite previous actions by NMFS and the Council 
to improve BRD performance and reduce shrimp trawl bycatch of red 
snapper, as explained in the History of NMFS and Council Efforts to 
Reduce Bycatch in the Shrimp Fishery section of this document, 
overfishing has continued. Changes in both fishing practices and gear 
characteristics have significantly reduced the overall effectiveness of 
BRDs relative to the bycatch reduction rates documented during field 
trials. The Council recognized the need to address such changes during 
rebuilding by periodically reviewing the status of the stock to ensure 
the rebuilding plan is adequately meeting rebuilding goals. Should 
insufficient or unexpectedly rapid rebuilding progress occur, NMFS and 
the Council intend to make appropriate adjustments to regulations to 
address unanticipated developments in the red snapper and shrimp 
fisheries.
    Comment 2: Eight commenters in favor of the petition stated the 
shrimp fishery has impacted the recreational fishery economically and 
hindered further economic gains the recreational sector could 
experience.
    Response: NMFS recognizes bycatch increases the mortality of any 
species over what would otherwise occur due to natural mortality and 
any directed fishery for that species. As such, this additional 
mortality reduces the potential harvest and economic activity 
associated with that species. This situation is not unique to shrimp 
trawl bycatch and recreational fisheries. In addition to requiring 
bycatch be reduced to the extent practicable, the Magnuson-Stevens Act 
requires management measures provide for the sustained participation of 
fishing communities. This requirement recognizes the sociocultural 
importance of fisheries and the impracticability of reducing all values 
associated with a resource to monetary terms. Thus, current regulations 
in the shrimp fishery have been developed to both minimize bycatch and 
maintain the fishing communities depending upon this fishery as well as 
other related fisheries.
    Comment 3: Several commenters indicated the petition failed to 
address the recent decrease in shrimp effort and its effects on 
reducing red snapper bycatch. These commenters identified four reasons 
for reductions in shrimp effort: (1) The cap on the number of 
commercial shrimp licenses has decreased participation in the fishery 
to a huge degree; (2) the required use of TEDs and BRDs has made it 
more difficult for license holders to make a living; (3) fuel costs 
have increased drastically, and, (4) the amount of imported, farm-
raised shrimp has been increasing and is unfairly driving down the 
price of domestic shrimp.
    Response: NMFS agrees the petition did not address recent decreases 
in shrimp effort, nor the aforementioned reasons for that effort 
reduction. These reductions in effort have been factored into recent 
management actions for shrimp and red snapper, including Amendment 13 
to the Shrimp FMP, Amendment 22 to the Reef Fish FMP, and the 2005 red 
snapper stock assessment. Although some individuals may dispute effort 
estimates, these estimates were thoroughly reviewed during the 2004-
2005 SEDAR workshops for red snapper and are considered the best 
available scientific information. Analyses predict reductions in the 
number of large vessels (>60 ft (>18.3 m)), which primarily operate in 
offshore waters and are expected to encounter more red snapper than 
smaller vessels, will be the primary source of future reductions in 
shrimp trawl bycatch. Between 2002 and 2004, offshore shrimp effort was 
predicted to decline by 16 percent; actual reductions in shrimp effort 
during this time declined by 18 percent. Projections indicate effort 
for large

[[Page 53145]]

shrimp vessels will continue to decline significantly through 2011, 
ending at a point 34 percent less than effort levels in 2002.
    The Council approved Amendment 13 to the Shrimp FMP at their May 
2005 meeting. If approved by NMFS, this amendment will establish 
several management measures, including a moratorium on commercial 
shrimp permits. NMFS has yet to implement the cap on commercial shrimp 
licenses and, therefore, the cap has not reduced participation in the 
shrimp fishery to date.
    The use of TEDs and BRDs has likely made it more difficult for some 
shrimpers to make a living. TEDs and BRDs not only reduce finfish and 
turtle bycatch, they also result in some shrimp loss, which 
economically impacts the profits of shrimpers. When the Council 
approved Amendment 9 to the Shrimp FMP in 1997, research indicated BRDs 
reduced bycatch at a lower cost than other management measures, such as 
seasonal and area closures. Recent NMFS observer data indicate many 
shrimpers have changed fishing practices and gear characteristics to 
reduce shrimp loss; as a result, BRD performance has decreased.
    The declining profitability of the shrimp industry is attributed to 
lower prices, due to competition from imports, and to higher fuel 
prices, which increased 21-29 percent from 2002 to 2003. Fuel costs 
represent a significant portion of the industry's operating expenses, 
and fluctuations in fuel costs can significantly affect the industry's 
economic performance. Increases in shrimp imports have been the primary 
cause of the recent decline in U.S. shrimp prices. Recent surges in 
imports have been caused by increases in the production of foreign, 
farm- raised shrimp.
    Comment 4: One commenter stated the petition was based on old 
information and new information is now available. The commenter stated 
the new information was incorporated into the new assessment, but was 
not acknowledged in the petition, and taking action would be imprudent 
until completion of the new assessment.
    Response: NMFS concurs that it would be prudent to wait for the 
findings of the new assessment before taking action. A red snapper 
stock assessment was completed in 2005 and represents the best 
available science regarding the current status of the stock. NMFS 
believes additional management measures to achieve reductions in 
bycatch mortality should take into account the results of this stock 
assessment and would best be addressed by the Council through 
regulatory amendment and development of a plan amendment. The Council 
discussed the results of the 2005 red snapper stock assessment at their 
August 2005 meeting and requested the NMFS Southeast Fisheries Science 
Center begin evaluating rebuilding scenarios for red snapper and the 
necessary shrimp trawl bycatch reductions associated with the 
scenarios.
    Comment 5: Several commenters stated the impact of recreational 
fishing was not acknowledged in the petition, and this fishing was a 
huge factor in the red snapper decline.
    Response: The petition acknowledges recovery of the red snapper 
stock is not based on bycatch reduction alone. However, the petition 
states the directed recreational and commercial fisheries have already 
adopted many management measures in an effort to rebuild the red 
snapper stock. Based on the most recent stock assessment, red snapper 
fishing mortality rates in both the directed fishery and the shrimp 
fishery are too high and each sector must share responsibility for 
rebuilding the stock.
    Comment 6: One commenter stated the growth of offshore recreational 
fishing boats has had a huge impact on red snapper and all other reef 
fish species. Another commenter asserted recreational bag limits for 
red snapper are regularly exceeded with no penalties, and this was the 
primary problem with management of the stock.
    Response: NMFS agrees the number of recreational fishing vessels 
and fishing effort have increased in recent years. Despite this 
increase in fishing effort and vessels, red snapper landings have been 
at or near the 4.47-million lb (2.03-million kg) quota. Recreational 
landings overages have occurred in some years, but landings have also 
been well below the quota during other years. Management measures 
imposed by the Council and NMFS, such as bag limits, closed seasons, 
size limits, and a moratorium on for-hire vessel permits, are intended 
to limit overall red snapper landings and effort. The U.S. Coast Guard, 
NMFS Law Enforcement, and state enforcement agencies enforce these 
regulations, and penalties exist if regulations are violated.
    Comment 7: One commenter asserted the bycatch of undersized red 
snapper by recreational fishermen is substantial.
    Response: NMFS agrees bycatch of undersized fish in the directed 
fishery should be addressed. The 2005 red snapper stock assessment used 
a range of release mortality rates for the directed commercial and 
recreational red snapper fisheries. These release mortality rates 
ranged from 15 to 80 percent depending on depth and time fished. The 
Council has begun developing a plan amendment to address bycatch in 
both the directed red snapper fishery and shrimp fishery.
    Comment 8: One commenter stated studies show the importance of 
protecting large spawners to ensure red snapper sustainability, and 
implied recreational fishing has a much greater effect on these large 
fish than commercial fishing, such as longlining.
    Response: NMFS agrees it is important to protect mature red 
snapper. Red snapper mature as early as 2 years of age and 10-12 inches 
(25-30 cm) fork length. They do not reach peak reproductive 
productivity until approximately 15 to 20 years of age. Current fishing 
practices directly affect the reproductive potential of the stock 
because red snapper are primarily caught well below the age at maximum 
fecundity. The commercial longline fishery typically harvests older red 
snapper (mean age of 7-8 years), while the commercial and recreational 
handline fisheries harvest younger red snapper (mean age of 2 to 4 
years). However, the commercial longline fishery accounts for only a 
small portion of the overall commercial harvest of red snapper (less 
than 4 percent of the overall commercial harvest).

Agency Decision

    After considering the assertions and proposed management measures 
set forth in the CCA petition and all public comments, NMFS has 
determined the measures requested by the petition should not be 
addressed via emergency or interim rulemaking at this time. NMFS agrees 
bycatch mortality of red snapper in the Gulf shrimp fleet adversely 
affects red snapper and its ability to rebuild. NMFS believes it is 
important to address bycatch mortality of red snapper by the shrimp 
fleet, but this issue does not represent an emergency as defined in 
NMFS policy guidance for the use of emergency rules (62 FR 44421, 
August 21, 1997). Overfishing of red snapper is not an unforeseen event 
and, therefore, does not constitute an emergency.
    Interim measures can be useful to address recently discovered 
issues for which no long-term strategies have been devised. However, 
NMFS believes long-term measures are more appropriate than interim 
measures to address overfishing of red snapper. The Council and NMFS 
have established, and are in the process of implementing, a long-term 
rebuilding plan for red snapper to phase-out overfishing by 2009 or 
2010 and rebuild the fishery by 2032, as

[[Page 53146]]

defined in the Magnuson-Stevens Act (Sec.  303(e)(4)). As anticipated 
in the rebuilding plan, implementation includes periodic adjustments 
based on new scientific information. The 2005 red snapper stock 
assessment indicates the level of reduction necessary to eliminate 
overfishing is dependent on the objectives and rebuilding scenario 
selected. The Council will need to evaluate those factors carefully 
prior to taking action to implement appropriate reductions to end 
overfishing and rebuild the stock.
    Finally, emergency and interim regulations are not appropriate for 
addressing such actions as changes to BRDs, because these changes would 
require substantial time for gear development, manufacturing, and 
training and distribution for re-outfitting of shrimp nets. Emergency 
and interim measures can only be implemented for 180 days and can be 
extended for an additional 180 days if necessary conditions are met. It 
is likely that such measures would result in a regulatory lapse before 
longer-term measures could be implemented.
    NMFS believes additional management measures to achieve reductions 
in bycatch mortality should take into account the results of the most 
recent red snapper stock assessment and would best be addressed through 
Council regulatory amendment and development of a plan amendment. The 
Council directed staff during their August 2005 Council meeting to 
begin immediately working on a regulatory amendment to modify 
certification procedures and protocols for BRDs, including 
decertification of ineffective BRDs and certification of new BRDs 
capable of achieving necessary reductions in finfish bycatch. This 
regulatory amendment is expected to be completed in mid-2006. The 
Council also directed staff to begin developing a joint reef fish and 
shrimp plan amendment that revises the red snapper rebuilding plan and 
addresses bycatch in both the directed red snapper fishery and shrimp 
fishery. This plan amendment is expected to be completed by late-2006. 
By addressing bycatch mortality, management measures, and the red 
snapper rebuilding plan in this way, the public will be afforded more 
opportunities to comment and participate in the rulemaking process, and 
long-term measures to address the issues can be implemented.

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

    Dated: August 31, 2005.
Emily Menashes,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 05-17713 Filed 9-6-05; 8:45 am]
BILLING CODE 3510-22-S


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