Daily Rules, Proposed Rules, and Notices of the Federal Government
To submit comments through the Federal e-Rulemaking Portal:
Comments received through means not specified in this rule will not be considered.
For further assistance with submitting a comment, see the "Commenting" section at
Electronic copies of the documents in support of this temporary rule may be obtained from the Southeast Regional Office Web site at
NMFS and the Council manage the snapper-grouper fishery off the southern Atlantic states under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The Council prepared the FMP and NMFS implements the FMP through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Section 305(c) of the Magnuson-Stevens Act (16 U.S.C. 1855(c)) provides the legal authority for the promulgation of emergency regulations.
The final rule for the Comprehensive Annual Catch Limit Amendment (Comprehensive ACL Amendment) to the Fishery Management Plan (FMP) for the Snapper-Grouper Fishery of the South Atlantic Region, and several other plans (77 FR 15916, March 16, 2012), effective April 16, 2012, implemented, in part, ACLs and accountability measures (AMs) for yellowtail snapper, as required by National Standard 1 of the Magnuson-Stevens Act. The commercial ACL for yellowtail snapper implemented through the final rule for the Comprehensive ACL Amendment is 1,142,589 lb (518,270 kg), round weight. The AM implemented through that rule states that the commercial sector will close if commercial landings reach or are projected to reach the commercial ACL.
On September 4, 2012 (77 FR 53776), NMFS published a temporary rule to close the commercial sector for yellowtail snapper in the South Atlantic on September 11, 2012, because NMFS determined that the commercial ACL for yellowtail snapper would be reached by that date. However, updated information revealed that yellowtail snapper could remain open for additional time until the ACL was reached. NMFS announced through a Fishery Bulletin on September 10, 2012, the cancellation of the previously announced closure. NMFS published a temporary rule on September 13, 2012 (77 FR 56563) with similar information. This would have been the first time yellowtail snapper would have closed in season since the ACL was first implemented in April 2012.
A new stock assessment for yellowtail snapper was completed by the Florida Fish and Wildlife Conservation Commission (FWCC), Fish and Wildlife Research Institute (FWRI), in May 2012,
The Council and NMFS are developing Regulatory Amendment 15 to the FMP to implement the increased commercial ACL for yellowtail snapper on a permanent basis. This regulatory amendment is expected to become effective sometime in 2013. Pursuant to section 305(c) of the Magnuson-Stevens Act, this temporary rule may be effective for not more than 180 days after publication. However, it can be extended for an additional 186 days provided that the public has an opportunity to comment on the rule. Therefore, NMFS is soliciting public comment on this temporary rule, and may extend these measures for up to an additional 186 days if Regulatory Amendment 15 is not effective before then.
At its September 2012 meeting, the Council requested that NMFS promulgate emergency regulations to adjust the commercial ACL for yellowtail snapper based on the results of the May 2012 stock assessment conducted by FWRI, the SSC's anticipated October 2012 ABC recommendation, and the current commercial and recreational sector allocations. This temporary rule for emergency action is necessary to preserve a significant economic opportunity that otherwise might be foregone.
NMFS' Policy Guidelines for the Use of Emergency Rules (62 FR 44421, August 21, 1997) list three criteria for determining whether an emergency exists. This emergency rule is promulgated under those criteria. Specifically, in order to promulgate an emergency rule, NMFS' policy guidelines require that an emergency:
(1) Result from recent, unforeseen events or recently discovered circumstances; and
(2) Present serious conservation or management problems in the fishery; and
(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 on participants to the same extent as would be expected under the normal rulemaking process.
The unforeseen circumstance in this case is that a new stock assessment has recently been completed by the FWRI providing new information on the status of yellowtail snapper. The assessment indicates that the stock is neither overfished nor undergoing overfishing, and that additional yellowtail snapper may be harvested without negatively impacting the stock.
Harvest of yellowtail snapper is very close to reaching the current commercial sector ACL. Not increasing the commercial ACL for yellowtail snapper, based on the latest stock assessment, could result in negative economic impacts for those who depend on the commercial harvest of yellowtail snapper, especially in the Florida Keys.
Finally, the immediate benefit of implementing this emergency action outweighs the value of advance notice and public comment. The Southeast Fisheries Science Center has projected that if this rule is not implemented the commercial yellowtail snapper ACL would be reached in October 2012. NMFS must implement this temporary rule immediately to allow for the continued commercial harvest of this increased portion of the commercial ACL to give fishermen the opportunity to achieve OY for the fishery.
This action is issued pursuant to section 305(c) of the Magnuson-Stevens Act, 16 U.S.C. 1855(c). The Assistant Administrator for Fisheries, NOAA (AA), has determined that this temporary rule is necessary to preserve a significant economic opportunity that otherwise might be foregone for the yellowtail snapper component of the South Atlantic snapper-grouper fishery and is consistent with the Magnuson-Stevens Act and other applicable laws.
This temporary rule has been determined to be not significant for purposes of Executive Order 12866.
The AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because they would be contrary to the public interest. The Southeast Fisheries Science Center has projected that the commercial yellowtail snapper ACL would be reached in October 2012. Failure to increase the commercial ACL for yellowtail snapper would result in unnecessary adverse economic impacts for those dependent upon the commercial harvest of yellowtail snapper, especially in the Florida Keys. NMFS must implement this temporary rule immediately to allow for continued commercial harvest of this increased portion of the commercial ACL to give fishermen the opportunity to achieve OY for the fishery. Comments submitted on this temporary rule through the Federal e-Rulemaking Portal:
For the reasons listed above, the AA also finds good cause to waive the 30-day delay in effectiveness of the action under 5 U.S.C. 553(d)(3).
Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
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:
16 U.S.C. 1801
(b) * * *
(14) * * *
(B) If commercial landings exceed the ACL, and yellowtail snapper is overfished, based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year to reduce the ACL for that following year by the amount of the overage in the prior fishing year.