[Federal Register Volume 65, Number 109 (Tuesday, June 6, 2000)]
[Proposed Rules]
[Pages 35877-35881]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14197]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 000502120-0120-01; I.D. 041000E]
RIN 0648-AN39


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Snapper-Grouper Fishery off the Southern Atlantic States; Amendment 12

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues this proposed rule to implement Amendment 12 to 
the Fishery Management Plan for the Snapper-Grouper Fishery of the 
South Atlantic Region (FMP). This rule would limit the harvest and 
possession of red porgy in or from the exclusive economic zone (EEZ) 
off the southern Atlantic states to specified incidental catch amounts, 
add to the parameters that may be established or modified via the FMP's 
framework procedure for regulatory adjustments, and modify the snapper-
grouper limited access system to allow transfers of a trip-limited 
permit among vessels owned by the same person regardless of vessel 
size. The intended effect is to protect the red porgy resource, which 
is currently overfished; to facilitate timely implementation of 
measures for the protection of snapper-grouper essential fish habitat 
(EFH) and essential fish habitat areas of particular concern (EFH 
HAPCs); and to remove an unnecessary restriction on the transfer of 
snapper-grouper trip-limited permits.

DATES: Written comments on this proposed rule must be received no later 
than 5 p.m., eastern standard time, on July 6, 2000.

ADDRESSES: Copies of Amendment 12 may be obtained from the South 
Atlantic Fishery Management Council, One Southpark Circle, Suite 306, 
Charleston, SC 29407-4699; phone: 843-571-4366; fax: 843-769-4520. 
Amendment 12 includes a Supplemental Environmental Impact Statement 
(SEIS), an Initial Regulatory Flexibility Analysis (IRFA), a Regulatory 
Impact Review (RIR), and a Social Impact Assessment/Fishery Impact 
Statement.
    Written comments on this proposed rule should be sent to the 
Southeast

[[Page 35878]]

Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, 
FL 33702. Comments also may be sent via facsimile (fax) to 727-570-
5583. Comments will not be accepted if submitted via e-mail or the 
Internet.

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

SUPPLEMENTARY INFORMATION: The snapper-grouper fishery off the southern 
Atlantic states is managed under the FMP. The FMP was prepared by the 
South Atlantic Fishery Management Council (Council) and approved and 
implemented by NMFS under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) by regulations 
at 50 CFR part 622.

Red Porgy

    The red porgy resource is overfished. In an emergency interim rule 
published September 3, 1999 (64 FR 48324), NMFS prohibited the harvest 
and possession of red porgy in or from the EEZ off the southern 
Atlantic states. NMFS extended the prohibition on harvest and 
possession of red porgy through August 28, 2000 (65 FR 10039; February 
25, 2000). The detailed analysis that led to the conclusion that the 
red porgy resource is overfished was summarized in the emergency 
interim rule (64 FR 48324) and is not repeated here. If the measures in 
Amendment 12 are approved, the Council and NMFS intend that they would 
be implemented by final rule and effective August 29, 2000.
    Amendment 12 proposes to limit the harvest and possession of red 
porgy to incidental catches. Specifically, a recreational fisherman 
would be restricted to one red porgy per day or per trip, whichever is 
more restrictive. A commercial fisherman would be limited to 50 lb 
(22.7 kg) per trip during the months of May through December and to one 
red porgy per day or per trip, whichever is more restrictive, during 
January through April. The current prohibition on sale of red porgy 
during March and April would be extended to the months of January 
through April.
    The Council has concluded that these measures would reduce catches 
of red porgy sufficiently to allow rebuilding of the stock. The Council 
recognized the severely overfished status of red porgy, as indicated in 
the most recent stock assessment, based on data through 1996 that was 
presented at the March 1999 Council meeting. More recent scientific 
data presented at the November/December 1999 Council meeting indicate a 
slight increase in the stock size. The majority of public input to date 
advocates restrictive management measures but not a total prohibition 
on harvest. The Council considered the public input and the status of 
the red porgy resource and concluded that fishing mortality must be 
reduced significantly to allow red porgy to rebuild. The goal of the 
rebuilding program would be an increase in the stock biomass to a level 
that would support harvests at maximum sustainable yield (MSY). 
Further, the Council believes that total prohibition of harvest would 
be wasteful. Red porgy would continue to be caught as part of the 
multi-species, mid-depth snapper-grouper fishery and a significant 
portion of them would not survive catch and release. Thus, the Council 
proposes to allow retention of limited amounts of red porgy as 
incidental catch rather than the total prohibition that is currently in 
effect under the emergency interim rule. In developing the proposed 
measures, the Council attempted to limit fishing mortality to the level 
that would result from regulatory discards under a total prohibition of 
harvest.
    The Council also concluded that the existing 14-inch (35.6-cm), 
total length, minimum size limit will protect red porgy up to ages 4 to 
4.5. All female red porgy are mature at age 3, and 19 percent are 
mature at age 1. The 14-inch (35.6-cm) minimum size limit should allow 
100 percent of the females to reproduce at ages 3 and 4, which should 
result in significant increases in recruitment. In addition, limiting 
retention of commercially caught red porgy to one fish per day or per 
trip during January through April will protect red porgy during their 
spawning period. In combination, these two measures are expected to 
contribute significantly to the rebuilding of the red porgy resource.
    The expected rebuilding time frame for red porgy would be 18 years. 
Red porgy cannot be rebuilt within 10 years due to the extremely low 
stock size, as data through 1996 indicate, and to the fact that 
species, such as red porgy, which switch sex with age appear to be more 
susceptible to overfishing. NMFS recommended that the Council specify 
the rebuilding timeframe as 10 years plus 1 generation time which 
equates to 18 years.

Framework Procedure

    In accordance with the FMP, certain factors related to the 
management of snapper-grouper may be established or modified via a 
framework procedure that enables more timely implementation than is 
possible via an FMP amendment. In conjunction with NMFS' approval of 
the Council's Comprehensive Amendment Addressing Essential Fish Habitat 
(EFH) in the Fishery Management Plans of the South Atlantic Region 
(Comprehensive EFH Amendment), NMFS published a proposed rule to 
implement the Comprehensive EFH Amendment's approved measures that 
would add parameters regarding EFH and EFH HAPCs to those for which the 
framework procedure was applicable (64 FR 37082, July 9, 1999). 
Amendment 12 proposes to clarify that actions that may be taken under 
the framework procedure regarding EFH and EFH HAPCs include 
restrictions on gear and fishing activities.

Transfer of Snapper-Grouper Permits

    Under the regulations to implement FMP Amendment 8, some vessels 
have trip-limited commercial permits for snapper-grouper, i.e., permits 
that allow no more than 225 lb (102.1 kg) of snapper-grouper per trip. 
An owner of a vessel with such a permit may transfer the permit to 
another vessel owned by the same entity only if the replacement vessel 
is equal to or less than the length and gross tonnage of the replaced 
vessel. While it may be argued that replacement of a smaller vessel 
with a larger one may increase the harvesting capacity of a vessel with 
a trip-limited permit, contrary to the original intent of Amendment 8's 
limited access program, such increase is constrained by the 225-lb 
(102.1-kg) limit. The Council concluded that retaining the size/gross 
tonnage transfer restriction creates administrative difficulties for 
vessel owners and for NMFS and has limited benefits. Accordingly, 
Amendment 12 proposes to remove the size/gross tonnage transfer 
restriction.

Additional Measures in Amendment 12

    In addition to the measures described here for the management of 
red porgy, Amendment 12 proposes to establish the following for red 
porgy: MSY; optimum yield (OY); maximum fishing mortality threshold 
(MFMT), the fishing mortality rate which, if exceeded, constitutes 
overfishing; minimum stock size threshold (MSST), the stock size below 
which red porgy are overfished; and a rebuilding schedule, the period 
during which the overfished red porgy resource should be rebuilt to a 
level that will support MSY. The specific proposals are as follows:
    MSY--1,987 metric tons (mt).
    OY--The amount of harvest that can be taken by fishermen of the 
U.S. while maintaining the spawning potential ratio (SPR) at or above 
45 percent of the

[[Page 35879]]

static SPR. (Note: This does not represent an SPR proxy for OY but an 
equilibrium yield associated with a fishing mortality rate 
[FOY].)
    MFMT--0.43, which is the mortality rate corresponding to 35 percent 
of the static SPR.
    MSST--3,328 mt.
    Rebuilding time frame--18 years, with 1999 as year 1.
    The Council is concerned that it may be setting MSY, OY, and MSST 
too high, given that the proposed MSY of 1,987 mt has never been 
harvested. The Council will review these estimates when the stock 
assessment is updated in 2 years. If changes are necessary, appropriate 
levels will be proposed through the framework procedure or via an FMP 
amendment, as appropriate.

Availability of Amendment 12

    Additional background and rationale for the measures discussed 
above are contained in Amendment 12. The availability of Amendment 12 
was announced in the Federal Register on April 19, 2000, (65 FR 20939). 
Written comments on Amendment 12 must be received by June 19, 2000. All 
comments received on Amendment 12 or on this proposed rule during their 
respective comment periods will be addressed in the preamble to the 
final rule.

Classification

    At this time, NMFS has not determined that Amendment 12 is 
consistent with the national standards of the Magnuson-Stevens Act and 
other applicable laws. NMFS, in making that determination, will take 
into account the data, views, and comments received during the comment 
period on Amendment 12.
    This proposed rule has been determined to be significant for 
purposes of E.O. 12866.
    The Council prepared a final supplemental environmental impact 
statement for the FMP; a notice of availability was published on May 
12, 2000, (65 FR 30587).
    The Council prepared an IRFA, based on the RIR, and concluded that 
this proposed rule, if adopted, would have a significant economic 
impact on a substantial number of small business entities. NMFS concurs 
with the finding. A summary of the IRFA with other information supplied 
by NMFS follows.
    This proposed rule is being considered because the red porgy stock 
is severely overfished, and the Magnuson-Stevens Act requires the 
Council to take action to resolve the overfished status of the stock. 
The Magnuson-Stevens Act provides the legal basis for all the actions 
proposed by the Council. The actions having an economic impact on small 
entities would restrict commercial landings of red porgy to a maximum 
of 50 lb (22.7 kg) per trip, close the commercial red porgy fishery 
from January through April, reduce the recreational bag limit from 5 to 
1 red porgy per angler per day or per trip (whichever is more 
restrictive), and allow the owner of a vessel having a 225-lb (102-kg) 
trip-limited permit for snapper-grouper to transfer the permit to a 
larger vessel under the same ownership.
    Other measures would define MSY and OY for red porgy and would 
change some framework provisions in the FMP, including providing the 
Council with more latitude under the framework to suggest additional 
regulatory actions designed to protect EFH and HAPCs. These other 
measures would not have any immediate economic impacts, but future 
actions to implement management measures associated with the new 
framework measures or to achieve MSY or OY may have economic impacts 
and would be analyzed at the time that they are implemented.
    There are about 1,200 fishing craft (boats and vessels combined) 
that are operated by entities that hold permits for commercial snapper 
grouper fishing, and all such entities are considered to represent 
small business entities. The Council and NMFS are aware that some small 
entities may control more than one harvesting unit, so the number of 
small entities impacted is likely to be slightly lower than the number 
of craft involved in the legal harvest of snapper grouper species. 
About 330 of the fishing craft have a history of red porgy landings, 
and, of these, about 270 are determined to be directly impacted by the 
proposed actions. The average (vessels and boats combined) length is 
37.2 ft (11.4 m), and investment in these craft is estimated at $53,000 
for those using bottom hook-and-line gear and at $237,000 for those 
using bottom longline gear. The fishing craft generate annual average 
gross revenues of about $42,000 and have net operating revenues (gross 
revenues minus trip costs) of about $29,000 per year. Most of the 
revenue is generated from species other than red porgy.
    In addition to the effects on enterprises that are engaged in the 
commercial harvest of snapper grouper species, the proposal for a 1-
fish recreational bag limit will affect the operations of some headboat 
operations that are also defined as small business entities. NMFS 
estimates that about one third of the headboat fleet or about 33 
vessels in South Atlantic waters have enough red porgy landings to be 
potentially affected by the bag limit action, but there is no 
definitive information available from which to quantify this impact. 
The headboats have an average length of 63 ft (19 m), a total capital 
investment of $220,000 and generate annual average gross revenue of 
about $123,000.
    No additional reporting, record keeping, or other compliance costs 
related to the proposals were identified, and no duplicative, 
overlapping, or conflicting Federal rules were identified.
    The Council defined the red porgy actions, including the commercial 
trip limit, the commercial closed season, and the recreational bag 
limit, as a single action and considered three alternatives to the 
action. One alternative was the status quo. Although the status quo 
would have no short-term negative economic impacts on small entities, 
it was rejected because the Magnuson-Stevens Act specifically requires 
the Council to take actions to rebuild this severely overfished 
fishery. Another rejected alternative would prohibit all commercial and 
recreational fishing for red porgy. The Council rejected this 
alternative because of the increased short-term negative impacts of a 
total and indefinite prohibition on all fishing for red porgy. The 
Council also noted that, while the rejected alternative would rebuild 
the red porgy stocks at a higher rate than under the proposed 
alternative, the proposed alternative would still result in stock 
rebuilding. The Council expressed an intent to review the status of the 
red porgy stock every 2 years and to take additional actions in the 
future, if necessary. The other rejected alternative was to adopt the 
commercial trip limit of 50 lb (22.7 kg), but not to have a commercial 
closure or a reduction in the recreational bag limit. The Council 
rejected this alternative because the biological analyses indicated 
that a more restrictive approach, such as the proposed alternative, was 
necessary to meet the specific goal of rebuilding the red porgy stock 
within an 18-year period. The status quo was considered as an 
alternative to the action to allow the owner of a vessel with a trip-
limited permit for snapper-grouper to transfer the permit to a larger 
vessel under the same ownership. The status quo was rejected because it 
was not the Council's original intent to have the transfer restriction 
apply to a vessel owner who desires to transfer the permit to another 
vessel owned by the same small entity.
    Copies of the IRFA are available (see ADDRESSES).

[[Page 35880]]

    The President has directed Federal agencies to use plain language 
in their communications with the public, including regulations. To 
comply with this directive, we seek public comment on any ambiguity or 
unnecessary complexity arising from the language used in this interim 
rule. Such comments should be directed to NMFS Southeast Regional 
Office (see ADDRESSES).

List of Subjects in 50 CFR Part 622

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

    Dated: May 31, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, 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. 622.18, paragraph (e)(2) is revised to read as follows:


Sec. 622.18  South Atlantic snapper-grouper limited access.

* * * * *
    (e) * * *
    (2) Trip-limited permits. An owner of a vessel with a trip-limited 
permit may request that the RA transfer the permit to another vessel 
owned by the same entity.
* * * * *
    3. In Sec. 622.36, paragraph (b)(5) is revised to read as follows:


Sec. 622.36  Seasonal harvest limitations.

* * * * *
    (b) * * *
    (5) Red porgy. During January, February, March, and April, each 
year, the possession of red porgy in or from the South Atlantic EEZ and 
in the South Atlantic on board a vessel for which a valid Federal 
commercial or charter vessel/headboat permit for South Atlantic 
snapper-grouper has been issued, without regard to where such red porgy 
were harvested, is limited to one per person per day or one per person 
per trip, whichever is more restrictive. Such red porgy are subject to 
the prohibition on sale or purchase, as specified in Sec. 622.45(d)(5).
    4. In Sec. 622.39, paragraphs (d)(1)(vi) and (d)(2) are revised to 
read as follows:


Sec. 622.39  Bag and possession limits.

* * * * *
    (d) * * *
    (1) * * *
    (vi) Red porgy--1.
* * * * *
    (2) Possession limits. (i) Provided each passenger is issued and 
has in possession a receipt issued on behalf of the vessel that 
verifies the duration of the trip--
    (A) A person aboard a charter vessel or headboat on a trip that 
spans more than 24 hours may possess no more than two daily bag limits 
of species other than red porgy.
    (B) A person aboard a headboat on a trip that spans more than 48 
hours and who can document that fishing was conducted on at least 3 
days may possess no more than three daily bag limits of species other 
than red porgy.
    (ii) A person aboard a vessel may not possess red porgy in or from 
the EEZ in excess of one per day or one per trip, whichever is more 
restrictive.
* * * * *
    5. In Sec. 622.44, paragraph (c)(4) is added to read as follows:


Sec. 622.44  Commercial trip limits.

* * * * *
    (c) * * *
    (4) Red porgy. (i) From May 1 through December 31, 50 lb (22.7 kg).
    (ii) From January 1 through April 30, the seasonal harvest limit 
specified in Sec. 622.36(b)(5) applies.
* * * * *
    6. In Sec. 622.45, paragraph (d)(5) is revised and paragraph (d)(7) 
is added to read as follows:


Sec. 622.45  Restrictions on sale/purchase.

* * * * *
    (d) * * *
    (5) During January, February, March, and April, no person may sell 
or purchase a red porgy 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 January through April does not apply to red porgy that 
were harvested, landed ashore, and sold prior to January 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 red porgy 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 red porgy;
    (iii) The port and date of offloading from the vessel harvesting 
the red porgy; and
    (iv) A statement signed by the dealer attesting that the red porgy 
was harvested from an area other than the South Atlantic.
* * * * *
    (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.
* * * * *
    7. In Sec. 622.48, paragraph (f) is revised to read as follows:


Sec. 622.48  Adjustment of management measures.

* * * * *
    (f) South Atlantic snapper-grouper and wreckfish. For species or 
species groups: Biomass levels, age-structured analyses, target dates 
for rebuilding overfished species, MSY, ABC, TAC, quotas, trip limits, 
bag limits, minimum sizes, gear restrictions (ranging from regulation 
to complete prohibition), seasonal or area closures, definitions of 
essential fish habitat, essential fish habitat, essential fish habitat 
HAPCs or Coral HAPCs, and restrictions on gear

[[Page 35881]]

and fishing activities applicable in essential fish habitat and 
essential fish habitat HAPCs.
* * * * *
[FR Doc. 00-14197 Filed 6-5-00; 8:45 am]
BILLING CODE 3510-22-F