[Federal Register Volume 70, Number 2 (Tuesday, January 4, 2005)]
[Rules and Regulations]
[Pages 300-301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28749]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 041104307-4356-02; I.D. 102904B]
RIN 0648-AS56


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of Puerto Rico and the U.S. Virgin Islands; Seasonal 
Closure of Grammanik Bank

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

ACTION: Temporary final rule.

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

SUMMARY: NMFS issues this temporary final rule to implement interim 
measures recommended by the Caribbean Fishery Management Council 
(Council). This rule prohibits fishing for or possessing any species of 
fish, except highly migratory species, within the Grammanik Bank closed 
area on a temporary basis (see DATES). The intended effect of this rule 
is to protect a yellowfin grouper spawning aggregation and to reduce 
overfishing.

DATES: This temporary final rule is effective February 1, 2005, through 
April 30, 2005.

ADDRESSES: Copies of documents supporting this action may be obtained 
from NMFS, Southeast Regional Office, 9721 Executive Center Drive N., 
St. Petersburg, FL 33702.

FOR FURTHER INFORMATION CONTACT: Joe Kimmel, 727-570-5752.

SUPPLEMENTARY INFORMATION: The reef fish fishery of Puerto Rico and of 
the U.S. Virgin Islands is managed under the Fishery Management Plan 
for the Reef Fish Fishery of Puerto Rico and of the U.S. Virgin Islands 
(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.
    On November 16, 2004, NMFS published a proposed rule (69 FR 67104) 
to implement the interim measures specified in this temporary final 
rule as requested by the Caribbean Fishery Management Council for 
Grammanik Bank and to request comments on the proposed actions. The 
rationale for the interim measures is provided in the preamble to the 
proposed rule and is not repeated here. No public comments were 
received during the comment period on the proposed rule. Therefore, the 
proposed rule is adopted as final.

Classification

    The Administrator, Southeast Region, NMFS, determined that the 
interim measures that this temporary final rule implements are 
necessary for the conservation and management of the yellowfin grouper 
fishery in the Caribbean and that they are consistent with the 
Magnuson-Stevens Act and other applicable laws.
    This temporary final rule has been determined to be not significant 
for purposes of Executive Order 12866.
    NMFS prepared a final regulatory flexibility analysis (FRFA). The 
FRFA incorporates the initial regulatory flexibility analysis (IRFA) 
and a summary of the analyses completed to support the action. No 
public comments were received on the economic impacts of this rule. A 
summary of the analysis follows.
    The rule is intended to protect an important spawning aggregation 
of yellowfin grouper, to help arrest the decline in the resource, and 
to support its recovery. The Magnuson-Stevens Act, as amended, provides 
the statutory basis for the rule.
    The rule is intended to implement, on an interim basis, an action 
currently included in the draft Sustainable Fisheries Act (SFA) 
Amendment. The SFA Amendment is expected to be implemented prior to the 
2006 fishing year. This rule will be an interim action providing 
protection to an important yellowfin grouper spawning aggregation 
during the 2005 spawning season and will expire prior to the 
implementation of the SFA Amendment. No duplicate, overlapping, or 
conflicting rules have been identified.
    No issues were raised by public comments in response to the IRFA. 
Therefore, no changes were made in the FRFA.
    There are two general classes of small business entities that will 
be directly affected by the rule: commercial fishing vessels and for-
hire fishing vessels. The Small Business Administration defines a small 
business that engages in commercial fishing as a firm that is 
independently owned and operated, that is not dominant in its field of 
operation, and that has annual receipts up to $3.5 million per year. 
The revenue benchmark for a small business that engages in charter 
fishing is a firm with receipts up to $6.0 million.
    There are an estimated 342 registered commercial fishing vessels in 
the U.S. Virgin Islands. The majority of participants are part-time 
fishermen. Total annual average dockside revenues from commercial 
fishing activity are estimated at $1.72 million, or an average of 
$5,000 per registered vessel. Given the average revenue estimates of 
the fleet, all commercial entities are determined to be small business 
entities. It cannot be precisely determined how many of the commercial 
vessels that operate in the U.S. Virgin Islands would be affected by 
the rule, though the rule will apply to all commercial fishing vessels. 
NMFS assumes that indirect impacts would be incurred industry-wide, and 
that all the commercial fishing entities that will be affected by the 
rule are small entities.
    An estimated 27 year-round charter fishing operations operate in 
the U.S. Virgin Islands, with an unknown

[[Page 301]]

number of seasonal operations. No information exists on the business 
profile of this fleet. However, the average gross revenue for charter 
vessels operating in Florida is estimated at $68,000, and ranges from 
$26,000 (South Carolina) to $82,000 (Alabama) for other areas in the 
southeastern United States. No information exists to suggest the 
revenue profile of charter vessels operating in the U.S. Virgin Islands 
is substantially different from these estimates, so NMFS concludes that 
all charter vessels operating in the U.S. Virgin Islands are small 
business entities. It cannot be determined how many of the charter 
vessels that operate in the U.S. Virgin Islands will be affected by the 
rule, though the rule will apply to all charter vessels. NMFS assumes 
that indirect effects will be incurred industry-wide, and that all the 
charter fishing entities that will be affected by the rule are small 
entities.
    The rule does not impose any reporting or recordkeeping 
requirements.
    No precise estimates of the profits of either the commercial 
fishing vessels or the charter vessels that are expected to be affected 
by the rule are available. However, even though not all water habitat 
is equally productive, the rule will affect only approximately 3 
percent of the available water area in the less than 100-fathom (183-m) 
depth range and close the area to fishing for only 25 percent of the 
year. Thus, less than 1 percent of available fishing area and time will 
be affected. Although harvests from this area during this time period 
will likely exceed 1 percent because it is a spawning site, the 
restriction is expected to be sufficiently small so as to not 
significantly affect the profits of a substantial number of small 
entities.
    Including the no-action alternative (Alternative 1), five 
alternatives were considered in addition to the rule (that is, the 
preferred Alternative 2). The no-action alternative and Alternatives 3 
through 6 provided insufficient spawning protection or failed to 
minimize the significant economic impacts on small entities. The no-
action alternative would not impose any closure in the target area, 
thereby allowing all current fishing practices. This would eliminate 
all short-term adverse impacts expected to result from the closure. 
However, spawning protection of yellowfin grouper would not be 
provided, thereby forgoing the benefits of rebuilding the stock, and 
the action would, therefore, not be consistent with the Council's 
intent. The remaining four alternatives differ in the geographic size 
and time duration of the closure. Alternative 3 would establish closure 
over a larger geographic area than the rule, 17.5 nm\2\ (60 km\2\) vs. 
6.88 nm\2\ (28.60 km\2\), but would not encompass the entire period 
during which yellowfin grouper are known to spawn, thereby potentially 
negating the purpose and effectiveness of the closure. Alternatives 4 
and 6 would only establish closure in a 1 nm\2\ (3.4 km\2\) area, an 
area insufficient to afford the necessary protection. Alternative 4 
would additionally not encompass the full spawning period and may allow 
fishing pressure to significantly impact an aggregation that is still 
present in the latter half of April. Alternative 6 would encompass the 
entire spawning period, but would continue the closure longer than is 
believed necessary. Alternative 5 would encompass 5 nm\2\ (17.2 km\2\), 
an area smaller than that in Alternative 2 but possibly affording 
sufficient geographic scope. However, Alternative 5 would also extend 
the closure for an additional month, which is longer than necessary and 
would, therefore, impose unnecessary adverse impacts.
    Among the alternatives, only the preferred action (i.e., this rule) 
meets the geographic and temporal scope necessary to meet the 
management objectives. The fishing restriction described in the 
preferred action will affect less than 1 percent of available fishing 
area and time and therefore is expected to be sufficiently small so as 
to not significantly affect the profits of a substantial number of 
small entities. A copy of this analysis is available from NMFS (see 
ADDRESSES).
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit holders that also serves as 
small entity compliance guide (the guide) was prepared. Copies of this 
final rule are available from the Southeast Regional Office (see 
ADDRESSES), and the guide, i.e., permit holder letter, will be sent to 
all holders of permits for the reef fish fishery. The guide and this 
final rule will be available upon request.

List of Subjects in 50 CFR Part 622

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

    Dated: December 28, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
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

0
1. The authority citation for part 622 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq.

0
2. In Sec.  622.33, paragraph (a)(4) is added to read as follows:


Sec.  622.33  Caribbean EEZ seasonal and/or area closures.

    (a) * * *
    (4) Grammanik Bank closed area. (i) The Grammanik Bank closed area 
is bounded by rhumb lines connecting, in order, the following points:

------------------------------------------------------------------------
 Point              North lat.                      West long.
------------------------------------------------------------------------
A        18[deg]12.40'                    64[deg]59.00'
------------------------------------------------------------------------
B        18[deg]10.00'                    64[deg]59.00'
------------------------------------------------------------------------
C        18[deg]10.00'                    64[deg]56.10'
------------------------------------------------------------------------
D        18[deg]12.40'                    64[deg]56.10'
------------------------------------------------------------------------
A        18[deg]12.40'                    64[deg]59.00'
------------------------------------------------------------------------

    (ii) From February 1, 2005, through April 30, 2005, no person may 
fish for or possess any species of fish, except highly migratory 
species, within the Grammanik Bank closed area. For the purpose of 
paragraph (a)(4) of this section, ``fish'' means finfish, mollusks, 
crustaceans, and all other forms of marine animal and plant life other 
than marine mammals and birds. ``Highly migratory species'' means 
bluefin, bigeye, yellowfin, albacore, and skipjack tunas; swordfish; 
sharks (listed in appendix A to 50 CFR part 635); white marlin, blue 
marlin, sailfish, and longbill spearfish.
* * * * *
[FR Doc. 04-28749 Filed 12-29-04; 2:49 pm]
BILLING CODE 3510-22-S