[Federal Register Volume 64, Number 171 (Friday, September 3, 1999)]
[Rules and Regulations]
[Pages 48324-48326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22956]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 990823235-9235-01; I.D. 061699F]
RIN 0648-AM55


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Snapper-Grouper Fishery Off the Southern Atlantic States; Closure of 
the Red Porgy Fishery

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

ACTION: Emergency interim rule; request for comments.

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SUMMARY: This emergency interim rule prohibits the harvest and 
possession of red porgy in or from the exclusive economic zone off the 
southern Atlantic states. Closure of the fishery is intended to protect 
the red porgy resource, which is currently overfished.

DATES: This rule is effective September 8, 1999, through March 1, 2000. 
Comments must be received no later than October 4, 1999.

ADDRESSES: Comments on this emergency interim rule must be mailed to, 
and copies of documents supporting this action, such as NMFS' economic 
analysis and environmental assessment, may be obtained from, the 
Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. 
Petersburg, FL 33702. Requests for copies of a minority report 
submitted by a member of the South Atlantic Fishery Management Council 
(Council) should be sent to the South Atlantic Fishery Management 
Council, One Southpark Circle, Suite 306, Charleston, SC 29407-4699; 
phone: 843-571-4366; fax: 843-769-4520.

FOR FURTHER INFORMATION CONTACT: Peter J. Eldridge, 727-570-5305, fax: 
727-570-5583.

SUPPLEMENTARY INFORMATION: The snapper-grouper fishery off the southern 
Atlantic states is managed under the Fishery Management Plan for the 
Snapper-Grouper Fishery of the South Atlantic Region (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.

Background

    Fishing pressure on red porgy increased substantially from the 
early 1970's to the present. In 1992, an assessment revealed that red 
porgy were overfished with a spawning potential ratio (SPR) of 13 
percent. Also, in 1992 the Council established a rebuilding timeframe 
of 10 years for red porgy. The Council used SPR as a proxy for maximum 
sustainable yield (MSY) and as a criterion to judge whether or not a 
stock was overfished.
    Amendment 9 to the FMP, which was submitted to NMFS in February 
1998 for review and implementation, recognized that red porgy were 
overfished and contained management measures to address that issue. 
Amendment 9 increased the minimum size limit from 12 to 14 inches (30.5 
to 35.6 cm) total length, established a recreational bag limit of 5 
fish, prohibited harvest and possession in excess of the bag limit 
during March and April, and prohibited purchase and sale during March 
and April. Based on the best scientific information available at that 
time, the Council believed that the proposed red porgy management 
measures in Amendment 9 would prevent overfishing.
    Also, in October 1998, based upon the same information used to 
develop Amendment 9, the Council selected a 10-year rebuilding 
timeframe for red porgy in the Comprehensive Amendment Addressing 
Sustainable Fishery Act Definitions and Other Required Provisions in 
Fishery Management Plans of the South Atlantic Region. NMFS partially 
approved the Comprehensive Amendment on May 19, 1999, and specifically 
approved the rebuilding schedule for red porgy.
    In March 1999, a new red porgy assessment revealed the condition of 
the red porgy resource was substantially worse than previously thought. 
Specifically, for the first time in the management of this fishery, 
biomass-based estimates for MSY, minimum stock size threshold (MSST), 
maximum fishing mortality threshold (MFMT), and estimates of actual 
recruitment to the fishery for the 1973 through 1997 period were 
available. This information revealed that the red porgy resource is 
suffering recruitment failure. Recruitment failure means that the 
number of recruits is insufficient to maintain the spawning biomass of 
the population. If such a condition is allowed to persist, the fishery 
will collapse. In addition, the 1999 assessment noted that the SPR 
estimate is useful to describe the fishing mortality rate, but the SPR 
estimate is not a valid proxy for MSY in this fishery because it does 
not provide information on the actual level of spawning biomass that is 
providing recruitment.
    The 1999 red porgy assessment revealed that recruitment of age-1 
red porgy had declined 99.85 percent from 1973 to 1997 (7.6 million to 
0.012 million age-1 fish) and that total spawning biomass has declined 
97.24 percent from 1978 to 1997 (11,700 metric tons (mt) to 323 mt). 
The MSST to achieve an SPR of 30 percent (MSY) is 2,845 mt; the 
comparable figure for optimum yield is 3,805 mt. The MFMT is 0.45; 
whereas, the current fishing mortality is 0.64, which is 42 percent 
over the MFMT. In addition, commercial and recreational landings have 
declined substantially, and the size of red porgy at maturity and size 
at transition from females to males have occurred at progressively 
smaller sizes.
    The FMP specifies the overfishing threshold for red porgy at an SPR 
of 30 percent. The 1999 assessment estimated the SPR at 24 percent. 
Thus, overfishing is occurring.
    The 1999 assessment clearly shows that the spawning biomass has 
been substantially below the MSST since 1992. Concomitant with the 
depressed level of spawning stock has been a depressed level of 
recruitment. Given the seriously overfished condition of the red porgy 
resource, as well as the original intent of the Council to rebuild this 
resource by the year 2001, the Council concluded that it is prudent and 
necessary under the Magnuson-Stevens Act to close the fishery to 
rebuild this species.
    The Council will request NMFS to develop potential management 
options for the red porgy fishery in time for the September Council 
meeting. The Council intends to develop permanent management measures 
to replace the emergency interim rule for red porgy at the September 
Council meeting.
    This action will require the discard of red porgy that inevitably 
will be caught incidentally when fishing for other snapper-grouper 
species. Some of these discarded fish will not survive. Nevertheless, 
the overall reduction in mortality of red porgy is necessary to return 
the biomass to levels that will allow harvests approximating the MSY 
for the species.

Minority Report

    A Council member submitted a minority report that objects to the

[[Page 48325]]

closure of the red porgy fishery for the reasons summarized as follows.
    First, the minority report states that the present situation does 
not constitute overfishing. The red porgy SPR of 24 percent is 
characterized in the latest assessment as ``slightly underestimated.'' 
Further, 24-percent SPR is only slightly below the FMP's established 
overfishing level of 30 percent, and the red porgy conservation 
measures in Amendment 9 are projected to raise the SPR level above 30 
percent.
    Second, the minority report asserts:
    (1) That the proposed action does not properly consider efficiency 
in the utilization of fishery resources, as required in national 
standard 5. Since red porgy are part of a mixed species fishery, 
fishermen will incur increased expenses because they will have to move 
to new areas when red porgy are encountered and will have to make 
longer, and possibly more distant, trips to make up for the foregone 
catches of red porgy and other species from their accustomed fishing 
areas.
    (2) That there was a lack of meaningful discussions on economic 
concerns during the Council's deliberations on the proposed action and, 
therefore, the action violates national standard 8's requirement to 
take into account the importance of fishery resources to fishing 
communities.
    (3) That the ban on retention of red porgy will create bycatch, 
rather than minimize it, as required in national standard 9.
    (4) That closing the red porgy fishery will require some fishermen 
to stay longer at sea on trips, often in inclement weather, and 
possibly require trips farther off shore, both of which are contrary to 
national standard 10's requirement to promote the safety of human life 
at sea.
    Finally, the minority report states that inaccurate statements 
during Council deliberations had a substantial effect on the outcome of 
the vote.
    Copies of the minority report are available (see ADDRESSES).

Criteria for Issuing an Emergency Rule

    This emergency interim rule meets NMFS policy guidelines for the 
use of emergency rules (62 FR 44421, August 21, 1997), because the 
emergency situation: results from recent, unforeseen events, or 
recently discovered circumstances; presents a serious management 
problem; and realizes immediate benefits from the emergency rule that 
outweigh the value of prior notice, opportunity for public comment, and 
deliberative consideration expected under the normal rulemaking 
process. Specifically, the Council acted as soon as the results in the 
1999 assessment were presented to it. Thus, the emergency results from 
recently discovered circumstances. As discussed here, the current red 
porgy stock is in danger of experiencing recruitment failure, i.e., the 
number of red porgy of a size that are subject to harvest may not be 
sufficient to sustain continued fishing for them. Continued fishing 
mortality of red porgy serves to worsen the current status of the 
stock. Thus, immediate closure of the fishery has immediate benefits 
that outweigh the value of prior notice, opportunity for public 
comment, and deliberative consideration under the normal rulemaking 
process.

Period of Effectiveness

    This emergency interim rule is effective for not more than 180 
days, as authorized by section 305(c) of the Magnuson-Stevens Act. It 
may be extended for an additional period of not more than 180 days, 
provided that the public has had an opportunity to comment on it and 
the Council is actively preparing an amendment to address the emergency 
on a permanent basis. Public comments on this rule and the Council's 
actions will be considered in determining whether to extend this rule.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that this emergency interim rule is necessary to minimize 
significant long-term adverse biological, social, and economic impacts 
that would occur with continued fishing for red porgy. The AA has also 
determined that this rule is consistent with the Magnuson-Stevens Act 
and other applicable laws.
    This emergency interim rule has been determined to be not 
significant for purposes of E.O. 12866.
    NMFS prepared an economic evaluation of the regulatory impacts 
associated with this emergency interim rule, which is summarized as 
follows.
    During the period 1993 through 1997, annual commercial landings of 
red porgy averaged 326,800 lb (148,236 kg) with revenues averaging 
approximately $397,300. Such landings and revenues were approximately 
8.2 and 6.3 percent, respectively, of the total landings and revenues 
of all species landed on trips on which red porgy were landed. An 
average of 331 vessels per year reported landings of red porgy during 
this period. The predicted total losses to commercial fishermen would 
have averaged approximately $365,300 per year between 1993 and 1997 had 
the red porgy fishery been closed. This prediction is a modeled result 
based on average vessel harvesting costs per trip. The actual short-
term economic effect of a moratorium will depend on individual vessel's 
trip costs.
    As the resource has declined, red porgy have not been an important 
species for charter vessels, headboats, and other recreational fishing 
vessels. The headboat sector is the most dominant sector in the fishery 
yet red porgy still comprise less than 10 percent of total annual 
headboat harvests for all states combined. Data do not exist to 
estimate the impact of the moratorium on these vessels, but it appears 
to be minor.
    The long-term economic effects of the moratorium cannot be 
estimated without additional information about the rate at which the 
red porgy population would recover. Although the economic analysis does 
not estimate the long-term economic effects of the moratorium, NMFS 
data indicate that the MSY of red porgy, which is the ultimate goal of 
the moratorium and future actions to rebuild the resource, is in excess 
of 1,500,000 lb (680,400 kg), with potential annual revenues then 
exceeding $1,800,000 (assuming a price of $1.20 per lb ($2.64 per kg), 
though it is unlikely that current prices could be maintained while 
more than tripling the market supply).
    Copies of the economic evaluation are available (see ADDRESSES).
    Recent NMFS stock assessment information clearly indicates that the 
red porgy resource is severely overfished and that stock recruitment 
(i.e., addition of fish to the red porgy population) is at a 
dangerously low level. Red porgy are currently being harvested in the 
snapper-grouper fishery, and continued harvest during the next several 
months (late summer - early fall) will worsen the stock condition. 
Continued fishing during this time period will fail to reverse 
overfishing of red porgy and increase the probability of recruitment 
failure and stock collapse, with resultant severe economic impacts on 
those dependent on the fishery. Thus, immediate closure of the fishery 
has potential significant benefits that outweigh the value of prior 
notice, opportunity for public comment, and deliberative consideration 
under the normal rulemaking process. Accordingly, under authority set 
forth at 5 U.S.C. 553(b)(B), the AA finds that these reasons constitute 
good cause to waive the requirement to provide prior notice and the 
opportunity for prior public comment, as such procedures would be 
contrary to the public interest.

[[Page 48326]]

For these same reasons, under 5 U.S.C. 553(d)(3), the AA finds for good 
cause that a 30-day delay in the effective date of this rule would be 
contrary to the public interest. However, to allow time for vessels at 
sea to be notified of the closure of the red porgy fishery and land red 
porgy on board, the effective date of this rule is delayed for 5 days 
after the date this rule is published.
    Because prior notice and an opportunity for public comment are not 
required to be provided 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 et seq., are inapplicable.

List of Subjects in 50 CFR Part 622

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

    Dated: August 27, 1999.
Gary C. Matlock,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 622 is amended 
as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

    1. The authority citation for part 622 continues to read as 
follows:

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

    2. In Sec. 622.32, paragraph (b)(4)(vii) is added to read as 
follows:


Sec. 622.32  Prohibited and limited-harvest species.

* * * * *
    (b) * * *
    (4) * * *
    (vii) Red porgy may not be harvested or possessed in or from the 
South Atlantic EEZ. Red porgy caught in the South Atlantic EEZ must be 
released immediately with a minimum of harm.
* * * * *
    3. In Sec. 622.36, paragraph (b)(5) is suspended.
    4. In Sec. 622.37, paragraph (e)(3)(iv) is suspended.
    5. In Sec. 622.39, paragraph (d)(1)(vi) is suspended.
    6. In Sec. 622.45, paragraph (d)(5) is suspended and paragraph 
(d)(7) is added to read as follows:


Sec. 622.45  Restrictions on sale/purchase.

* * * * *
    (d) * * *
    (7) During March and April, no person may sell or purchase a gag or 
black grouper harvested from the South Atlantic EEZ or, if harvested by 
a vessel for which a valid Federal commercial or charter vessel/
headboat permit for South Atlantic snapper-grouper has been issued, 
harvested from the South Atlantic. The prohibition on sale/purchase 
during March and April does not apply to gag or black grouper that were 
harvested, landed ashore, and sold prior to March 1 and were held in 
cold storage by a dealer or processor. This prohibition also does not 
apply to a dealer's purchase or sale of gag or black grouper harvested 
from an area other than the South Atlantic, provided such fish is 
accompanied by documentation of harvest outside the South Atlantic. 
Such documentation must contain:
    (i) The information specified in 50 CFR part 300 subpart K for 
marking containers or packages of fish or wildlife that are imported, 
exported, or transported in interstate commerce;
    (ii) The official number, name, and home port of the vessel 
harvesting the gag or black grouper;
    (iii) The port and date of offloading from the vessel harvesting 
the gag or black grouper; and
    (iv) A statement signed by the dealer attesting that the gag or 
black grouper was harvested from an area other than the South Atlantic.
* * * * *
[FR Doc. 99-22956 Filed 9-2-99; 8:45 am]
BILLING CODE 3510-22-F