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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 

# AGENCY:

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

# ACTION:

Proposed rule; request for comments. 

# 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                               ( print 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                         *Peter.Eldridge@noaa.gov*.                     

# 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                           ( print 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**                    ).                           ( print 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 § 622.18, paragraph (e)(2) is revised to read as follows: 

§ 622.18

* * * * *

(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 § 622.36, paragraph (b)(5) is revised to read as follows: 

§ 622.36

* * * * *

(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 § 622.45(d)(5).                         

4. In § 622.39, paragraphs (d)(1)(vi) and (d)(2) are revised to read as follows: 

§ 622.39

* * * * *

(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 § 622.44, paragraph (c)(4) is added to read as follows: 

§ 622.44

* * * * *

(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 § 622.36(b)(5) applies. 

* * * * *

6. In § 622.45, paragraph (d)(5) is revised and paragraph (d)(7) is added to read as follows: 

§ 622.45

* * * * *

(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 § 622.48, paragraph (f) is revised to read as follows: 

§ 622.48

* * * * *

                            (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                                   ( print 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