[Federal Register Volume 65, Number 38 (Friday, February 25, 2000)]
[Rules and Regulations]
[Pages 10039-10041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4475]


=======================================================================
-----------------------------------------------------------------------

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; Extension of 
Effective Date of Closure of the Red Porgy Fishery

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

ACTION: Emergency interim rule; extension of effective date.

-----------------------------------------------------------------------

SUMMARY: An emergency interim rule is in effect through March 1, 2000, 
that prohibits the harvest and possession of red porgy in or from the 
exclusive economic zone (EEZ) off the southern Atlantic states. NMFS 
extends the emergency interim rule for an additional 180 days. The 
intended effect of this rule is to protect the red porgy resource, 
which is currently overfished.

DATES: The effective date for the emergency interim rule published at 
64 FR 48324, September 3, 1999, is extended from March 1, 2000, through 
August 28, 2000.

ADDRESSES: Copies of documents supporting this action may be obtained 
from the Southeast Regional Office, NMFS, 9721 Executive Center Drive 
N., St. Petersburg, FL 33702, telephone: 727-570-5305, fax: 727-570-
5583.

FOR FURTHER INFORMATION CONTACT: Dr. Peter J. Eldridge, telephone: 727-
570-5305, fax: 727-570-5583, email: [email protected].

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 South Atlantic Fishery Management Council (Council) and 
is implemented under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) by regulations 
at 50 CFR part 622.
    In response to a request from the Council, NMFS published an 
emergency interim rule (64 FR 48324, September 3, 1999), under section 
305(c)(1) of the Magnuson-Stevens Act, that prohibited the harvest and 
possession of red porgy in or from the EEZ off the southern Atlantic 
states. This action was required because of the overfished status of 
red porgy. Red porgy remains overfished.
    Under section 305(c)(3)(B) of the Magnuson-Stevens Act, NMFS may 
extend the effectiveness of an emergency interim rule for one 
additional period of 180 days, provided the public has had an 
opportunity to comment on the emergency interim rule and the Council is 
actively preparing an amendment to the FMP to address the overfishing 
on a permanent basis. NMFS solicited comments on the initial emergency 
interim rule and received four comments. The responses are provided in 
this emergency interim rule. The Council is preparing Amendment

[[Page 10040]]

12 to the FMP, which will address the overfished status of red porgy. 
The effectiveness of the initial emergency interim rule is being 
extended because red porgy remain overfished and action to address the 
overfished status under Amendment 12 cannot be implemented by March 1, 
2000.
    Additional details concerning the basis for the closure of the red 
porgy fishery are contained in the preamble to the initial emergency 
interim rule and are not repeated here.

Comments and Responses

    NMFS received four comments on the emergency interim rule (64 FR 
48324, September 3, 1999). A summary of those comments and NMFS' 
responses follow.
    Comment 1: Three commenters supported the closure of the red porgy 
fishery and requested that NMFS obtain bycatch data on red porgy taken 
incidentally by other snapper-grouper fishermen. In addition, they 
supported the use of marine reserves as a tool to rebuild the 
overfished red porgy resource.
    Response: NMFS agrees, and efforts will be made to collect bycatch 
data from both commercial and recreational fishermen. Also, NMFS 
supports the concept of marine reserves and believes that they are a 
valid management tool.
    Comment 2: Three commenters stated that NMFS should have taken 
action earlier to prevent overfishing of the red porgy resource.
    Response: NMFS does not disagree with the comment; however, the 
full extent of the overfished condition of the red porgy resource was 
not known until March 1999. The Council and NMFS took action as soon as 
they received this information.
    Comment 3: One commenter stated that the overfished condition of 
the red porgy resource was caused solely by commercial fishermen and 
that recreational fishermen and charter boat operators should not be 
restricted to address that overfishing.
    Response: Both the recreational and commercial sectors contributed 
to the overfishing of the red porgy resource. Both sectors should 
practice conservation measures to rebuild the resource because both 
sectors will benefit from this effort in the future.
    Comment 4: One commenter opposed the closure of the fishery and 
recommended that NMFS implement no additional red porgy measures other 
than those implemented in Amendment 9 to the FMP. The commenter claimed 
that the red porgy resource was not overfished.
    Response: NMFS disagrees with the claim that the red porgy resource 
is not overfished. The 1999 stock assessment clearly shows that the 
resource is severely overfished and that there is an urgent need to 
rebuild this resource. Commercial and recreational landings have 
declined substantially, and the resource has experienced recruitment 
failure. A failure to act at this time would exacerbate the decline in 
this resource. An analysis of the red porgy management measures 
implemented in Amendment 9 indicated that the measures would have 
prevented a further decline in abundance. However, the resource would 
not have recovered if only those measures were applied. Since the 
Magnuson-Stevens Act requires that managers rebuild overfished 
resources, additional measures were required. The Council is developing 
Amendment 12 to the Snapper-Grouper FMP not only to rebuild the 
resource, but also to minimize the short-term economic impacts of the 
rebuilding program. The extension of this emergency rule will provide 
the Council sufficient time to accomplish this task.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that the extension of the emergency interim rule is 
necessary to minimize significant long-term adverse biological, social, 
and economic impacts that would occur with the resumption of fishing 
for red porgy. The AA has also determined that this extension is 
consistent with the Magnuson-Stevens Act and other applicable laws.
    This extension of the emergency interim rule is not subject to 
review under Executive Order 12866.
    NMFS prepared an economic evaluation of the regulatory impacts 
associated with the 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 
headboat harvests for all South Atlantic 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 maximum sustainable yield 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 
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).

[[Page 10041]]

    The red porgy resource is severely overfished and stock recruitment 
(i.e., addition of fish to the red porgy population) is at a 
dangerously low level. A resumption of fishing will worsen the stock 
condition, fail to reverse the overfished status, and increase the 
probability of recruitment and stock collapse, with severe economic 
impacts on those dependent on the fishery. Thus, continued 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 because the delay 
associated with such procedures would be contrary to the public 
interest. 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 
emergency interim rule would be contrary to the public interest.
    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.

    Dated: February 18, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 00-4475 Filed 2-24-00; 8:45 am]
BILLING CODE 3510-22-F