[Federal Register Volume 70, Number 52 (Friday, March 18, 2005)]
[Proposed Rules]
[Pages 13152-13155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-5351]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 050309066-5066-01; I.D. 030105D]
RIN 0648-AS53


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Coastal Migratory Pelagic Resources of the Gulf of Mexico and South 
Atlantic; Amendment 15

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 15 to 
the Fishery Management Plan for the Coastal Migratory Pelagic Resources 
of the Gulf of Mexico and South Atlantic (FMP). This proposed rule 
would establish a limited access system for the commercial fishery for 
Gulf and Atlantic migratory group king mackerel by capping 
participation at the current level. The proposed rule also would change 
the fishing year for Atlantic migratory group king and Spanish mackerel 
to be March through February. The intended effects of this proposed 
rule are to provide economic and social stability in the fishery by 
preventing speculative entry into the fishery and to mitigate adverse 
impacts associated with potential quota closures.

DATES: Comments must be received no later than 5 p.m., eastern time, on 
May 2, 2005.

ADDRESSES: You may submit comments on the proposed rule by any of the 
following methods:
     E-mail: [email protected]. Include in the 
subject line the following document identifier: 0648-AS53.
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Steve Branstetter, Southeast Regional Office, NMFS, 
9721 Executive Center Drive N., St. Petersburg, FL 33702.
     Fax: From March 22, 2005, through May 2, 2005, 727-824-
5308. Comments cannot be received via fax from March 18 through March 
21, 2005.
    Copies of Amendment 15, which includes an environmental assessment, 
a regulatory impact review (RIR), and an initial regulatory flexibility 
analysis (IRFA), may be obtained from the Gulf of Mexico Fishery 
Management Council, The Commons at Rivergate, 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, 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: Steve Branstetter; telephone: 727-570-
5305; fax: 727-570-5583 (through March 18, 2005), 727-824-5308 (on and 
after March 22, 2005); e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The fisheries for coastal migratory pelagic 
resources are managed under the 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

    Prior to 1998, the commercial king mackerel fishery in the 
exclusive economic zone of the Gulf of Mexico and Atlantic operated 
under open access. Due to concerns about increasing levels of 
participation in these fisheries, the Councils established a commercial 
king mackerel vessel permit moratorium in Amendment 8 to the FMP in 
March 1998. Amendment 12 extended the expiration date of the moratorium 
through October 15, 2005, or until the moratorium could be replaced 
with a license limitation, limited access, and/or individual fishing 
quota or individual transferable quota system, whichever occurred 
earlier. The effects of the existing permit moratorium have been to 
prevent increases in effort, reduce the number of permittees in the 
king mackerel fishery, and help stabilize the economic performance of 
current participants. Under the moratoria, the number of commercial 
king mackerel permits has declined from a peak of 2,172 in July 1998 to 
1,683 in August 2004.
    Current commercial king mackerel fishery participants, especially 
in the Gulf of Mexico, have demonstrated the capability of harvesting 
the applicable quotas well in advance of the end of the various fishing 
seasons, resulting in early closures of the fishery. Allowing the 
fishery to revert to open access 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, possibly 
result in closures of the Atlantic group king mackerel fishery, and 
have an adverse impact on the economic performance of current 
participants. Increased participation would also compound the 
complexity of any future consideration by the Councils to develop a 
more comprehensive controlled access system for this fishery. For these 
reasons, the Councils have concluded that a limited access system to 
continue restrictions on participation levels in these fisheries is 
appropriate.

[[Page 13153]]

Provisions of Amendment 15

Limited Access System

    Amendment 15 would establish a limited access system for the 
commercial fishery for Gulf and Atlantic group king mackerel by capping 
participation at the current level. Under the proposed limited access 
system, an owner of a vessel with a valid commercial vessel permit for 
king mackerel and/or a valid king mackerel gillnet endorsement on the 
date that Amendment 15 is approved (assuming approval) would be issued 
the applicable permits under the limited access system. Commercial 
vessel permits for king mackerel would become limited access permits 
and king mackerel gillnet endorsements would become king mackerel 
gillnet permits, upon their renewal. Other than the changes in the 
terminology, i.e., limited access versus moratorium, there would be no 
changes to the current procedures for application, qualification, 
issuance, renewal, or transferability of these permits.

Change the Fishing Year

    Amendment 15 would also change the fishing year for Atlantic 
migratory groups of king and Spanish mackerel to March 1 through 
February 28-29. The current fishing year for Atlantic migratory groups 
of both king and Spanish mackerel extends from April 1 through March 
31. The commercial quota for Atlantic group king mackerel has only been 
met three times to date. However, should quotas need to be reduced in 
the future, there is a potential for the commercial quota to be met and 
the fishery to be closed prior to and through the end of the season 
(i.e., in March). A March closure could adversely affect the social and 
economic stability of South Atlantic mackerel fisheries due to the 
compounding effect of established seasonal commercial closures for 
alternative target species during that same month. For example, the red 
porgy fishery is closed January through April, and the gag and black 
grouper fishery is closed in March and April. By changing the opening 
date of the season to March 1, the Councils reduce the possibility of 
multiple overlapping or simultaneous commercial fishery closures.

Classification

    At this time, NMFS has not determined whether Amendment 15, which 
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 periods on Amendment 15 and on 
this proposed rule.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an IRFA, as required by section 603 of the Regulatory 
Flexibility Act. The IRFA describes the economic impact this proposed 
rule, if adopted, would have on small entities. A description of the 
action, why it is being considered, and the legal basis for this action 
are contained at the beginning of this section in the preamble and in 
the SUMMARY section of the preamble. A copy of the full analysis is 
available from the Council office (see ADDRESSES). A summary of the 
analysis follows.
    This proposed rule would establish a limited access system for the 
commercial fishery for Gulf and Atlantic group king mackerel and change 
the Atlantic migratory group king and Spanish mackerel fishing year to 
begin March 1 rather than the current April 1. The purpose of the 
proposed rule is to provide stability in the Southeast commercial king 
mackerel fishery as part of the overall strategy to achieve optimum 
yield and maximize the overall benefits to the Nation provided by the 
fishery and insure that the Atlantic group king mackerel fishery is 
open in March. The Magnuson-Stevens Act provides the statutory basis 
for the proposed rule.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified.
    An estimated 1,740 vessels were permitted to fish for commercial 
king mackerel in 2003, down from 2,172 in 1998. Approximately half of 
the vessels with permits had logbook-reported landings, 1,066 in 1998 
and 951 in 2003. The median annual gross revenue from all logbook-
reported sales of finfish by these vessels ranged from approximately 
$11,000 to $12,000 during this period. The median percentage of gross 
revenues attributable to king mackerel ranged from 22 percent to 33 
percent. Although participation in the fishery has declined since 1998, 
this decline has been voluntary and presumed attributable to economic 
conditions in this fishery and fishing in general and not due to 
regulatory restrictions. Although a permit moratorium has been in place 
in this fishery since 1998, permit transfer is not restricted, and 
those seeking to enter the fishery can purchase a permit from permit 
holders. Such transfers in fact occur, and 309 of the 1,740 permits in 
2003 were permits that had been transferred since 1998. Thus, entry 
into the fishery occurs; however, total participation, in terms of both 
the number of permits and the number of permitted vessels that land 
fish, has consistently declined since 1998, indicating that entry is 
not limited by a lack of available permits.
    The proposed rule would affect all current participants in the 
fishery. The rule would similarly affect all entities interested in 
entering the fishery. No estimate of this number can be provided, 
though it is not expected to be substantial due to the decline in total 
participation in the fishery despite available entry opportunities.
    The proposed rule would not change current reporting, 
recordkeeping, and other compliance requirements under the FMP. These 
requirements include qualification criteria for the commercial vessel 
permit and logbook landing reports. All of the information elements 
required for these processes are standard elements essential to the 
successful operation of a fishing business and should, therefore, 
already be collected and maintained as standard operating practice by 
the business. The requirements do not require professional skills; 
therefore, they are not deemed to be onerous.
    One general class of small business entities would be directly 
affected by the final rule--commercial fishing vessels. The Small 
Business Administration defines a small business that engages in 
commercial fishing as a firm that is independently owned and operated, 
is not dominant in its field of operation, and has annual receipts up 
to $3.5 million per year. Based on the revenue profiles provided above, 
all commercial entities operating in the king mackerel fisheries are 
considered small entities.
    The proposed rule would apply to all entities that operate in the 
commercial king mackerel fishery and those entities interested in or 
seeking to enter the fishery. The proposed rule would, therefore, 
affect a substantial number of small entities.
    Whether a rule has a ``significant economic impact'' can be 
ascertained by examining two issues: disproportionality and 
profitability. The disproportionality question is: Do the regulations 
place a substantial number of small entities at a significant 
competitive disadvantage to large entities? All the vessel operations 
affected by the proposed rule are considered small entities, so the 
issue of disproportionality does not arise in the present case.
    The profitability question is: Do the regulations significantly 
reduce profit for a substantial number of small

[[Page 13154]]

entities? The proposed rule would continue the limited access system in 
the fishery. Continuation of this system would be expected to increase 
profitability for the entities remaining in the fishery if 
participation continues to decline, as has occurred since 1998. Should 
the decline in participation cease, profits would be expected to 
continue at current levels. Should the fishery revert to open access, 
participation would be expected to increase, and average profit per 
participant would be expected to decline, possibly to the point of 
elimination of all profits from this fishery. The specification of the 
fishing year is essentially an administrative action, because no 
closures of either the Atlantic migratory group king or Spanish 
mackerel fisheries are expected. Thus, change of the start of the 
fishing year is not expected to have any effect on profits of fishery 
participants.
    The proposed rule would continue the requirement to have a vessel 
permit in order to participate in the commercial king mackerel fishery. 
The cost of the permit is $50, and renewal is required every other year 
(the permit is automatically renewed the second year). Because this is 
a current requirement, there would be no additional impacts on 
participant profits as a result of this requirement.
    Three alternatives were considered to establishment of the proposed 
limited access system. The no action alternative would allow the 
fishery to revert to open access. Open access conditions would be 
expected to lead to an increase in the number of permitted vessels 
(1,740 vessels in 2003), or, at least, slow the rate of decline in 
participation that has occurred. Any increase in the number of vessels 
landing king mackerel would lead to an expected decrease in producer 
surplus from that in 2003, estimated at $142,650 to $380,400.
    Two alternatives would continue the current moratorium on issuing 
new king mackerel commercial permits for 5 years or 10 years, 
respectively, compared to the proposed rule which would establish an 
indefinite limited access program. Thus, the fishery would continue as 
a limited access fishery under each of these alternatives. It is not 
possible to distinguish these alternatives from the proposed rule 
empirically in terms of fishery behavior using available data. However, 
it is not unreasonable to assume that fishermen believe that regardless 
of the duration of the program specified, a precedent for indefinite 
use of private market mechanisms to allow entry into the fishery has 
been established, given the history of successfully functioning private 
markets for vessel permits. Thus, the outcomes of these three 
alternatives are expected to be functionally equivalent. As stated 
previously, under the current permit moratorium program, the fishery is 
estimated to have generated $142,650 to $380,400 in producer surplus. 
Assuming the increase in producer surplus mirrors the rate of fleet 
contraction exhibited from 1998 through 2003 (2.2 percent), the 
resultant estimates of producer surplus are approximately $166,000 to 
$443,000 by 2010, and $185,000 to $494,000 by 2015. Each alternative 
would also continue to provide for market-based compensation for 
vessels that exit the fishery, and the permit market would continue to 
provide an economically rational basis for regulating the entry of 
vessels into the commercial king mackerel fishery and allocating access 
to fishery resources among competing users in the commercial fisheries.
    Although the preferred alternative would imply a more permanent 
system than the alternatives, the system established under any 
alternative could be suspended at any time through appropriate 
regulatory action. Establishing an indefinite duration, however, 
eliminates the need for action to continue the system at specific time 
intervals, thereby eliminating the costs associated with the regulatory 
process. The administrative and development cost of the current action 
is estimated to be $200,000. Further, the preferred alternative may 
better address the Councils' purpose of providing stability in the 
commercial and recreational fisheries for king mackerel, preventing 
speculative entry into the commercial fisheries, and achieving optimum 
yield. The status quo alternative would not achieve the Councils' 
objectives.
    Two alternatives are considered relative to the proposed change in 
the fishing year for Atlantic migratory group king and Spanish 
mackerel. The status quo alternative would maintain the current fishing 
year, April 1 through March 31, while a second alternative would 
establish a January 1 through December 31 fishing year. The Councils' 
objective is to insure that the Atlantic group mackerel fisheries are 
open in March, because other fishing opportunities are limited during 
this month. Both the preferred alternative and a January 1 opening 
would reduce the potential of a March closure, however, only the 
preferred alternative would guarantee such, absent a 0-lb (0-kg) quota. 
Thus, the preferred alternative best meets the Councils' objectives.

List of Subjects in 50 CFR Part 622

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

    Dated: March 14, 2005.
Rebecca Lent
Deputy Assistant Administrator for Regulatory Programs, 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, paragraphs (a)(2)(ii), (a)(2)(iii), (g)(1), (o), 
and (q) are revised to read as follows:


Sec.  622.4  Permits and fees.

    (a) * * *
    (2) * * *
    (ii) Gillnets for king mackerel in the southern Florida west coast 
subzone. For a person aboard a vessel to use a run-around gillnet for 
king mackerel in the southern Florida west coast subzone (see Sec.  
622.42(c)(1)(i)(A)(3)), a commercial vessel permit for king mackerel 
and a king mackerel gillnet permit must have been issued to the vessel 
and must be on board. See paragraph (o) of this section regarding a 
limited access system applicable to king mackerel gillnet permits and 
restrictions on transferability of king mackerel gillnet permits.
    (iii) King mackerel. For a person aboard a vessel to be eligible 
for exemption from the bag limits and to fish under a quota for king 
mackerel in or from the Gulf, Mid-Atlantic, or South Atlantic EEZ, a 
commercial vessel permit for king mackerel must have been issued to the 
vessel and must be on board. 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 three calendar years preceding the application. See 
paragraph (q) of this section regarding a limited access system 
applicable to commercial vessel permits for king mackerel, transfers of 
permits under the limited access system, and limited exceptions to the 
earned income or gross sales requirement for a permit.
* * * * *
    (g) * * *

[[Page 13155]]

    (1) Vessel permits, licenses, and endorsements and dealer permits. 
A vessel permit, license, or endorsement or a dealer permit issued 
under this section is not transferable or assignable, except as 
provided in paragraph (m) of this section for a commercial vessel 
permit for Gulf reef fish, in paragraph (n) of this section for a fish 
trap endorsement, in paragraph (o) of this section for a king mackerel 
gillnet permit, in paragraph (p) of this section for a red snapper 
license, in paragraph (q) of this section for a commercial vessel 
permit for king mackerel, in paragraph (r) of this section for a 
charter vessel/headboat permit for Gulf coastal migratory pelagic fish 
or Gulf reef fish, in Sec.  622.17(c) for a commercial vessel permit 
for golden crab, in Sec.  622.18(e) for a commercial vessel permit for 
South Atlantic snapper-grouper, or in Sec.  622.19(e) for a commercial 
vessel permit for South Atlantic rock shrimp. A person who acquires a 
vessel or dealership who desires to conduct activities for which a 
permit, license, or endorsement is required must apply for a permit, 
license, or endorsement in accordance with the provisions of this 
section. If the acquired vessel or dealership is currently permitted, 
the application must be accompanied by the original permit and a copy 
of a signed bill of sale or equivalent acquisition papers.
* * * * *
    (o) Limited access system for king mackerel gillnet permits 
applicable in the southern Florida west coast subzone. Except for 
applications for renewals of king mackerel gillnet permits, no 
applications for king mackerel gillnet endorsements will be accepted. 
Application forms for permit renewal are available from the RA.
    (1) An owner of a vessel with a king mackerel gillnet permit issued 
under this limited access system may transfer that permit upon a change 
of ownership of a permitted vessel with such permit from one to another 
of the following: Husband, wife, son, daughter, brother, sister, 
mother, or father. Such permit also may be transferred to another 
vessel owned by the same entity.
    (2) A king mackerel gillnet permit that is not renewed or that is 
revoked will not be reissued. A permit is considered to be not renewed 
when an application for renewal is not received by the RA within one 
year after the expiration date of the permit.
* * * * *
    (q) Limited access system for commercial vessel permits for king 
mackerel. (1) No applications for additional commercial vessel permits 
for king mackerel will be accepted. 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 the commercial 
vessel permit for king mackerel issued under this limited access system 
to another vessel owned by the same entity.
    (3) An owner whose percentage of earned income or gross sales 
qualified him/her for the commercial vessel permit for king mackerel 
issued under this limited access system 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. Such owner of 
another vessel, or new owner, may receive a commercial vessel permit 
for king mackerel for his or her vessel, and renew it through April 15 
following the first full calendar year after obtaining it, without 
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 transfer takes place.
    (4) An owner of a permitted vessel, the permit for which is based 
on an operator's earned income and, thus, is valid only when that 
person is the operator of the vessel, may request that NMFS transfer 
the permit to the income-qualifying operator when such operator becomes 
an owner of a vessel.
    (5) An owner of a permitted vessel, the permit for which is based 
on an operator's earned income and, thus, is valid only when that 
person is the operator of the vessel, may have the operator 
qualification on the permit removed, and renew it without such 
qualification through April 15 following the first full calendar year 
after removing it, without 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 the operator qualification is removed. To have an 
operator qualification removed from a permit, the owner must return the
    original permit to the RA with an application for the changed 
permit.
    (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 one year of the permit's expiration 
date.
* * * * *
    3. In Sec.  622.30, paragraph (b)(2) is revised, and paragraph 
(b)(3) is added to read as follows:


Sec.  622.30  Fishing years.

* * * * *
    (b) * * *
    (2) Gulf migratory group Spanish mackerel - April through March.
    (3) South Atlantic migratory group king and Spanish mackerel - 
March through February.
* * * * *
    4. In Sec.  622.44, paragraph (a)(2)(ii)(A) is revised to read as 
follows:


Sec.  622.44  Commercial trip limits.

* * * * *
    (a) * * *
    (2) * * *
    (ii) * * *
    (A) Gillnet gear. (1) In the southern Florida west coast subzone, 
king mackerel in or from the EEZ may be possessed on board or landed 
from a vessel for which a commercial vessel permit for king mackerel 
and a king mackerel gillnet permit have been issued, as required under 
Sec.  622.4(a)(2)(ii), in amounts not exceeding 25,000 lb (11,340 kg) 
per day, provided the gillnet fishery for Gulf group king mackerel is 
not closed under Sec.  622.34(p) or Sec.  622.43(a).
    (2) In the southern Florida west coast subzone:
    (i) King mackerel in or from the EEZ may be possessed on board or 
landed from a vessel that uses or has on board a run-around gillnet on 
a trip only when such vessel has on board a commercial vessel permit 
for king mackerel and a king mackerel gillnet permit.
    (ii) King mackerel from the southern west coast subzone landed by a 
vessel for which a commercial vessel permit for king mackerel and a 
king mackerel gillnet permit have been issued will be counted against 
the run-around gillnet quota of Sec.  622.42(c)(1)(i)(A)(2)(i).
    (iii) King mackerel in or from the EEZ harvested with gear other 
than run-around gillnet may not be retained on board a vessel for which 
a commercial vessel permit for king mackerel and a king mackerel 
gillnet permit have been issued.
* * * * *
[FR Doc. 05-5351 Filed 3-17-05; 8:45 am]
BILLING CODE 3510-22-S