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

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