[Federal Register Volume 65, Number 106 (Thursday, June 1, 2000)]
[Proposed Rules]
[Pages 35040-35043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13572]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 000511131-0131-01; I.D. 021500A]
RIN 0648-AM75


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Coastal Migratory Pelagic Resources of the Gulf of Mexico and South 
Atlantic; 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 proposes to implement Amendment 12 to the Fishery 
Management Plan for the Coastal Migratory Pelagic Resources of the Gulf 
of Mexico and South Atlantic (Amendment 12). This rule would extend the 
current moratorium on the issuance of commercial vessel permits for 
king mackerel through October 15, 2005. The intended effects of this 
proposed rule are to prevent speculative entry into the fishery and 
provide stability in the fishery.

DATES: Comments must be received no later than 5 p.m., eastern standard 
time, on July 3, 2000.

ADDRESSES: Written comments on the proposed rule must be sent to Dr. 
Steve Branstetter, Southeast Regional Office, NMFS, 9721 Executive 
Center Drive N., St. Petersburg, FL 33702. Comments also may be sent 
via fax to 727-570-5583. Comments will not be accepted if submitted via 
e-mail or Internet.
    Comments regarding the collection-of-information requirements 
contained in this rule should be sent to Edward E. Burgess, Southeast 
Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, 
FL 33702, and to the Office of Information and Regulatory Affairs, 
Office of Management and Budget (OMB), Washington, DC 20503 (Attention: 
NOAA Desk Officer).
    Copies of Amendment 12, which includes an environmental assessment 
and a regulatory impact review (RIR), may be obtained from the Gulf of 
Mexico Fishery Management Council, Suite 1000, 3018 U.S. Highway 301 
North, Tampa, FL 33619; telephone: 813-228-2815; fax: 813-225-7015; e-
mail: [email protected]; or from the South Atlantic Fishery 
Management Council, Southpark Building, One Southpark Circle, Suite 
306, Charleston, SC 29407-4699; telephone: 843-571-4366; fax: 843-769-
4520; e-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Dr. Steve Branstetter; telephone: 727-
570-5305; fax: 727-570-5583; e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The fisheries for coastal migratory pelagic 
resources are managed under the Fishery Management Plan for the Coastal 
Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic 
(FMP). The FMP was prepared jointly by the Gulf of Mexico Fishery 
Management Council and the South Atlantic Fishery Management Council 
(Councils), approved by NMFS, and implemented under the authority of 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) by regulations at 50 CFR part 622.

Background

    Amendment 8 to the FMP, implemented in March 1998 (63 FR 10561, 
March 4, 1998), established a moratorium on commercial king mackerel 
permits through October 15, 2000. To obtain a king mackerel permit 
under the moratorium, a vessel owner must have owned a vessel with a 
commercial vessel permit for king mackerel on or before October 16, 
1995, the control date for the king mackerel fishery (60 FR 53576, 
October 16, 1995). The intent of the moratorium is to prevent further 
increases in effort, to stabilize the economic performance of current 
participants, and possibly to reduce the number of permittees in the 
king mackerel fishery. The Councils noted that the number of commercial 
vessel permits for mackerel had increased from 1,280 to 2,754 between 
the 1987-88 and 1997-98 fishing years. As of March 25, 1999, the number 
of king and Spanish mackerel permits has declined to 2,109.
    Under section 303(d)(1)(A) of the Magnuson-Stevens Act, the 
Councils are

[[Page 35041]]

precluded from submitting to NMFS, prior to October 1, 2000, an 
individual fishing quota (IFQ) program or an individual transferable 
quota (ITQ) program for agency review, approval, and implementation. 
The Gulf Council's development of Amendment 8 to the Fishery Management 
Plan for the Reef Fish Resources of the Gulf of Mexico, which was to 
establish a limited entry program for the commercial red snapper 
fishery in the Gulf (i.e., an ITQ system), required more than one year 
to complete. Based on this experience, the Councils have concluded that 
there would be insufficient time to develop a limited access program 
for the commercial king mackerel fishery prior to the expiration of the 
current moratorium.
    Currently, the commercial king mackerel fisheries of both the South 
Atlantic and Gulf of Mexico are valued at approximately $7 million 
annually and are subject to closures when the quotas are filled. For 
the western Gulf zone, the fishery is open for approximately 6 weeks, 
beginning on July 1 of each year. For the eastern Gulf zone, the 
Florida west coast gillnet fishery closes in a matter of days after the 
fishery begins in January; the Florida west coast hook-and-line fishery 
for Gulf group king mackerel has usually closed in February or March, 
after a July 1 opening. The Florida east coast fishery for Gulf group 
king mackerel has usually closed in March after a November 1 opening; 
and the commercial hook-and-line fishery for Atlantic group king 
mackerel has reached its quota in two of the last 3 years. These annual 
closures indicate that fleet size and fishery effort are still 
excessive to harvest the allowable quotas.
    The Atlantic stocks of king mackerel have rebounded from an 
overfished status and are no longer considered overfished and 
overfishing is not occurring. This upturn in status is the result of 
recent restrictions on fishing effort (i.e., adjustment of size, bag, 
and trip limits; the prohibition of net gear in Florida state waters; 
and the imposition of a moratorium on the number of permits issued in 
the fishery.) In response to the current status of the Atlantic king 
mackerel stock the South Atlantic Council has recommended a modest 
quota increase for this group, giving fishers the opportunity to 
harvest more fish and realize an increased economic benefit. This 
increase in quota is within the range recommended by the Mackerel Stock 
Assessment Panel and the Scientific and Statistical Committee. Such a 
relaxation of restrictions on the harvest, and thus the insurance of 
the increased availability of long term benefits for users, can be 
achieved by maintaining other measures currently in place.
    Both the Gulf and South Atlantic Councils agree that allowing the 
moratorium to expire would result in an increased number of 
participants in these mackerel fisheries, most likely negating any 
reductions in effort that have been achieved as a result of the current 
moratorium. Any increase in participants would: Exacerbate the current 
derby fisheries that occur in the western Gulf zone and in the Florida 
west coast gillnet fishery, lead to even earlier closures, probably 
result in closures of the Atlantic group king mackerel fishery, and 
have an impact on the economic performance of the current participants. 
Increased participation would also compound the complexity of the 
Council's future actions to develop a controlled access system for this 
fishery. For example, new entrants may lose a good part of their new 
investments if the future assignment of fishing privileges is weighted 
more toward historical rather than current participation.
    The Councils concluded that an extension of the existing moratorium 
on the issuance of commercial vessel permits for king mackerel is 
necessary to avoid these negative impacts and to provide adequate time 
for the Councils to evaluate and develop an alternative limited access 
or limited entry program. Therefore, this proposed rule would extend 
the expiration date of the existing moratorium from October 16, 2000, 
through October 15, 2005, or to the date of implementation of a license 
limitation, limited access, and/or IFQ or ITQ program that replaces the 
moratorium, whichever occurs first.

Changes Proposed by NMFS

    To simplify the regulations, NMFS proposes to delete language in 
Sec. 622.4 regarding implementation of the original moratorium on 
issuance of commercial vessel permits for king mackerel that is no 
longer pertinent.
    Consistent with a recent change of the name of Dade County, FL, to 
Miami-Dade County, FL, NMFS proposes to revise all references to Dade 
County, FL, to read Miami-Dade County, FL, throughout 50 CFR part 622.

Classification

    At this time, NMFS has not determined that the amendment this rule 
would implement 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 not significant for 
purposes of E.O. 12866.
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall a person be subject to a penalty for failure 
to comply with, a collection-of-information subject to the requirements 
of the Paperwork Reduction Act (PRA) unless that collection of 
information displays a currently valid OMB control number.
    This rule includes collection-of-information requirements that are 
subject to the PRA. The first collection-of-information pertains to 
applications for commercial vessel permits. That collection is 
currently approved under OMB Control No. 0648-0205 and its public 
reporting burden is estimated at 20 minutes per response. The second 
collection-of-information pertains to fishing records of vessels 
permitted in the commercial king or Spanish mackerel fisheries. That 
collection is currently approved under OMB Control No. 0648-0016 and 
its public reporting burden is estimated at 15 minutes per response. 
These burden estimates include the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Send comments regarding these burden estimates, or any other aspect of 
this data collection, including suggestions for reducing the burden, to 
NMFS and OMB (see ADDRESSES).
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities 
as follows:

    The proposed rule contains a single provision to extend the 
commercial king mackerel permit moratorium from its current 
expiration date of October 15, 2000, to October 15, 2005, or until 
replaced with a license limitation, limited access, and/or 
individual fishing quota or individual transferable quota system, 
whichever occurs earlier. The action covers both the Gulf of Mexico 
and South Atlantic Federal waters. The moratorium on new permits was 
first instituted in March 1998 and will expire on October 15, 2000. 
There is a need to extend the current moratorium on new permits 
because progress toward designing and implementing the intended 
limited access system has not been as rapid as originally 
envisioned. Comprehensive limited access systems are difficult to 
develop and implement; at this point, there is insufficient

[[Page 35042]]

time to institute a new limited access system for the king mackerel 
fishery by October 15, 2000. Hence, the current action is being 
proposed to provide the Councils with additional time to develop a 
new limited access system and to ensure that the current permit 
moratorium does not lapse before they have completed this task.
    The entities that could be affected by changes in the current 
system governing the ability of individual firms to engage in the 
lawful harvest of king mackerel in the Gulf of Mexico and the South 
Atlantic consist of those firms holding commercial harvest permits. 
There are currently about 2,100 commercial permit holders and all 
could be potentially affected by the proposed action. Also, all the 
firms holding the permits qualify as small business entities per the 
definition used by the Small Business Administration. Hence, a 
substantial number of small business entities could be affected by 
the action.
    The concept of status quo has a somewhat unusual context in 
terms of this particular proposed action. Specifically, the status 
quo (taking no action) means that the current permit moratorium 
would expire, the fishery would revert to open access, and the 
number of permitted fishermen would likely increase. Conversely, 
under the proposed action, the permit moratorium, which has existed 
since 1998, would remain in effect until replaced by a new limited 
access system.
    If the status quo alternative (let the current permit moratorium 
expire) is taken, then there would be a number of economic effects 
related to a reversion of the fishery to open access. For example, 
given that there were over 2,600 permitted entities based on the 
original control date for the fishery, and about 2,100 currently, it 
is obvious that additional vessel owners would apply for and receive 
permits if the moratorium is lifted. While some of these new 
entrants would likely obtain a permit with the intention of only 
establishing fishing rights in the king mackerel fishery and would 
not actively participate in the fishery, other new entrants would 
likely participate in the fishery for one or more reasons. Some new 
entrants might land a minimum quantity of king mackerel on the basis 
that having a permit, in combination with a history of at least some 
level of landings, would further enhance their claim to future 
fishery participation rights. Other new entrants would likely become 
active participants in the fishery. This is probable based on the 
fact that a number of permit transfers occur each year, and a market 
has developed for these transferable king mackerel permits. The 
price range associated with an existing permit is not known, but 
permits for other species in the Gulf of Mexico and South Atlantic 
are known to be valued at several thousand dollars. With the 
moratorium lifted, new entry would be possible by paying only the 
administrative permit fee, currently $50 for a new permit or $20 for 
a king mackerel endorsement to an existing permit for another 
species. The value conferred on current permits by the moratorium 
will be lost.
    It is noted that at the present time under the permit 
moratorium, the entity giving up a permit by transfer must exit the 
fishery, and current exit behavior is clearly influenced by a number 
of factors, including the current value of a permit. Recently 
available logbook data for this fishery indicates that some of the 
current participants do not land a large amount of king mackerel on 
an annual basis. These are the participants who are most likely to 
sell their existing permits to new entrants under the continuing 
condition of a permit moratorium. The reasoning is that the expected 
net present value of their profits (net revenues) derived from their 
small catches are exceeded by the current market value of their king 
mackerel permit. As such, the permit moratorium has resulted in a 
reduction in the number of permits in the king mackerel fishery.
    New entrants in the king mackerel fisheries will not necessarily 
result in a large overall increase in catch. This is because the 
commercial king mackerel fishery operates under an annual quota that 
is enforced through fishery closures. The quota for the Gulf of 
Mexico fishery has typically been met each year. Although not met in 
recent years, the quota for the South Atlantic fishery historically 
has been met. However, even if the new entrants do not result in a 
significant increase in overall landings, an increase in the rate at 
which king mackerel is harvested should result, particularly in the 
Gulf of Mexico fishery. This scenario would exacerbate the existing 
derby fishery in the Gulf and would tend to lead to lower overall 
exvessel prices because the quota would be landed in a shorter 
period of time.
    In summary, maintaining the status quo and thereby allowing the 
permit moratorium to expire would result in an increase in the 
number of permits, a possible increase in the annual catch, a likely 
decrease in exvessel prices, and a loss of the existing transfer 
value of existing permits. The result would be a negative economic 
impact on all the current permit holders, including those permit 
holders who might otherwise be expected to sell their permits and 
exit the fishery under the current system. There would also be 
positive impacts for at least some of the new entrants because they 
could obtain a permit for $20 to $50 instead of paying the existing 
higher market price for a permit. Some of these new entrants would 
be expected to participate in the fishery at a significant and 
profitable level. In addition to these rather straightforward 
impacts on current and potential new entrants, the increase in the 
rate at which king mackerel are harvested, especially in the Gulf 
where a restrictive quota pertains, would intensify the existing 
derby fishery and the attendant loss in economic benefits typically 
associated with such fisheries. Reverting to an open access fishery 
also means that the Councils would once again have to undertake the 
preliminary steps necessary to establish a comprehensive limited 
access system. It is likely that repeating these steps would have 
additional negative economic impacts on at least some of those 
participants who are currently permitted. For example, they may have 
to reestablish a fishing history or take other actions necessary to 
continue fishing under any new limited access system.
    The overall conclusion is that if the status quo alternative was 
chosen and the permit moratorium allowed to expire on October 15, 
2000, there would be a number of negative impacts on existing 
participants in the king mackerel fishery in Federal waters of the 
Gulf of Mexico and South Atlantic. While there would likely be some 
positive economic impacts for a portion of any new entrants, the 
negative impacts of the status quo action are expected to exceed the 
positive impacts. An increased number of king mackerel permits would 
likely create a derby fishery, particularly in the Gulf where 
current annual quotas constrain harvests. Taking action to extend 
the current permit moratorium means that the likely negative 
economic impacts of the status quo alternative will not occur. In 
other words, the proposed action of extending the permit moratorium 
until October 15, 2005, should forestall adverse economic changes 
and impacts associated with the status quo scenario of letting the 
moratorium expire. For these reasons, it follows that the proposed 
action will not result in a significant economic impact on a 
substantial number of small business entities.

    As a result, a regulatory flexibility analysis was not required. A 
copy of the RIR is available from the Council (see ADDRESSES).

List of Subjects in 50 CFR Part 622

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

    Dated: May 24, 2000.
Andrew A. Rosenberg,
Deputy 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. 622.4, the last two sentences of paragraph (a)(2)(iii), 
the last sentence of paragraph (a)(2)(iv), and paragraph (q) are 
revised to read as follows:


Sec. 622.4  Permits and fees.

    (a) * * *
    (2) * * *
    (iii) * * * To obtain or renew a commercial vessel permit for king 
mackerel, at least 25 percent of the applicant's earned income, or at 
least $10,000, must have been derived from commercial fishing (i.e., 
harvest and first sale of fish) or from charter fishing during one of 
the 3 calendar years preceding the application. See paragraph (q) of 
this section regarding a moratorium on commercial vessel permits for 
king mackerel, transfers of permits during the moratorium, and

[[Page 35043]]

limited exceptions to the earned income or gross sales requirement for 
a permit.
    (iv) * * * To obtain or renew a commercial vessel permit for 
Spanish mackerel, at least 25 percent of the applicant's earned income, 
or at least $10,000, must have been derived from commercial fishing 
(i.e., harvest and first sale of fish) or from charter fishing during 
one of the 3 calendar years preceding the application.
* * * * *
    (q) Moratorium on commercial vessel permits for king mackerel. This 
paragraph (q) is effective through October 15, 2005.
    (1) NMFS will not accept applications for additional commercial 
vessel permits for king mackerel. Existing vessel permits may be 
renewed, are subject to the restrictions on transfer or change in 
paragraphs (q)(2) through (q)(5) of this section, and are subject to 
the requirement for timely renewal in paragraph (q)(6) of this section.
    (2) An owner of a permitted vessel may transfer a commercial vessel 
permit for king mackerel to another vessel owned by the same entity.
    (3) An owner whose percentage of earned income or gross sales 
qualified him/her for a commercial vessel permit for king mackerel may 
request that NMFS transfer that permit to the owner of another vessel, 
or to the new owner when he or she transfers ownership of the permitted 
vessel. NMFS may issue a commercial vessel permit for king mackerel to 
such owner of another vessel, or new owner. NMFS may renew the permit 
through April 15 following the first full calendar year after the 
permit is transferred, without the owner meeting the percentage of 
earned income or gross sales requirement of paragraph (a)(2)(iii) of 
this section. However, to further renew the commercial vessel permit, 
the owner of the other vessel, or new owner, must meet the earned 
income or gross sales requirement not later than the first full 
calendar year after the permit is transferred.
    (4) If a permit is based on an operator's earned income and, thus, 
is valid only when that person is the operator of the vessel, the owner 
of the vessel may request that NMFS transfer the permit to the income-
qualifying operator if such operator becomes an owner of a vessel.
    (5) If a permit is based on an operator's earned income and, thus, 
is valid only when that person is the operator of the vessel, the owner 
of the vessel may request that NMFS remove the operator qualification 
on the permit by returning the original permit to the RA with an 
application for the changed permit. NMFS may renew the permit without 
such qualification through April 15 following the first full calendar 
year after NMFS removes the operator qualification, without the owner 
meeting the earned income or gross sales requirement of paragraph 
(a)(2)(iii) of this section. However, to further renew the commercial 
vessel permit, the owner must meet the earned income or gross sales 
requirement not later than the first full calendar year after NMFS 
removes the operator qualification.
    (6) NMFS will not reissue a commercial vessel permit for king 
mackerel if the permit is revoked or if the RA does not receive an 
application for renewal within 1 year of the permit's expiration date.


Secs. 622.2, 622.6, 622.41, 622.44  [Amended]

    3. In addition to the amendments set forth above, in 50 CFR part 
622, remove the word ``Dade'' and add, in its place, the words ``Miami-
Dade'' in the following places:
    (a) Section 622.2, in paragraph (2) of the definition of 
``Migratory group'';
    (b) Section 622.6(b)(2);
    (c) Section 622.41(c)(3)(ii)(B); and
    (d) Section 622.44(a)(1)(iii).

[FR Doc. 00-13572 Filed 5-31-00; 8:45 am]
BILLING CODE 3510-22-F