[Federal Register Volume 70, Number 129 (Thursday, July 7, 2005)]
[Rules and Regulations]
[Pages 39187-39190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13390]



[[Page 39187]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 050309066-5164-02; 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: Final rule.

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SUMMARY: NMFS issues this final 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 final rule 
establishes a limited access system for the commercial fishery for Gulf 
and Atlantic migratory group king mackerel by capping participation at 
the current level. The final rule also changes the fishing year for 
Atlantic migratory group king and Spanish mackerel to March through 
February. The intended effects of this final 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: This final rule is effective August 8, 2005.

ADDRESSES: Copies of the Final Regulatory Flexibility Analyses (FRFA) 
may be obtained from the Southeast Regional Office, NMFS, 263 13\th\ 
Avenue South, St. Petersburg, FL 33701.

FOR FURTHER INFORMATION CONTACT: Steve Branstetter; telephone: 727-551-
5796; fax: 727-824-5308; 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.
    NMFS approved Amendment 15 on May 26, 2005. NMFS published a 
proposed rule (70 FR 13152, March 18, 2005) to implement Amendment 15 
and requested public comment on the proposed rule through May 2, 2005. 
The rationale for the measures in Amendment 15 is provided in the 
preamble to the proposed rule and is not repeated here.

Comment and Response

    Following is a summary of the comment NMFS received on Amendment 15 
and the associated proposed rule, along with NMFS' response.
    Comment: Do not change the Atlantic king mackerel fishing year to 
start March 1. At this time of year, the Gulf stock king mackerel are 
still in the Florida Keys and along the east coast of Florida. A March 
1 opening will incorrectly count Gulf stock king mackerel against the 
Atlantic stock quota.
    Response: The change in the fishing year for Atlantic groups of 
mackerel does not affect the manner in which the fishery is divided for 
management purposes. For management purposes, the Gulf migratory group 
of king mackerel is considered to seasonally migrate out of the Gulf of 
Mexico northward along the east coast of Florida. From November 1 
through March 31, king mackerel found in the exclusive economic zone 
off the east coast of Florida between the Miami-Dade/Monroe County 
boundary and the Volusia/Flagler County boundary are considered to be 
Gulf migratory group fish. King mackerel north of the Volusia/Flagler 
boundary are considered to be Atlantic migratory group fish all year.
    The change of the fishing year for Atlantic groups of king and 
Spanish mackerel does not affect the times that these subzone 
designations would change. From March 1 through March 31, the fishing 
year change would only apply to Atlantic migratory group king mackerel 
caught north of the Volusia/Flagler boundary. King mackerel caught 
south of the Volusia/Flagler boundary would still be considered Gulf 
migratory group fish. Beginning April 1, when the subzones are 
redesignated, king mackerel caught south of the Volusia/Flagler 
boundary would also be counted as Atlantic migratory group fish.

Classification

    The Administrator, Southeast Region, NMFS, has determined Amendment 
15 is necessary for the conservation and management of the coastal 
migratory pelagics fishery and is consistent with the national 
standards of the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a FRFA for this action. The FRFA incorporates the 
IRFA and a summary of the analyses completed to support the action. No 
comments were received in response to the IRFA. A copy of the FRFA is 
available from NMFS (see ADDRESSES). Following is a summary of the 
analysis.
    This final rule will 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 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 rule.
    No significant issues were raised by the public comment about the 
IRFA or the economic impacts of the rule. Therefore, no changes were 
made in the final rule as a result of such comments.
    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 vessels 
in 1998 and 951 vessels 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,

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indicating that entry is not limited by a lack of available permits.
    This rule will affect all current participants in the fishery. The 
rule will 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.
    This rule will 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. Because these 
compliance requirements are unchanged under this rule, the requirements 
are not deemed to be onerous.
    One general class of small business entities will be directly 
affected by this 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.
    This rule will apply to all entities that operate in the commercial 
king mackerel fishery and those entities interested in or seeking to 
enter the fishery. This rule will, 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 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 entities? This rule 
will continue the limited access system in the fishery. Continuation of 
this system is 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.
    This rule will 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 will be no additional impacts on participant 
profits as a result of this requirement.
    Three alternatives were considered to establishment of the limited 
access system defined by the final rule. 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, which was 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 final rule that will 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 final rule 
empirically in terms of fishery behavior using available data. However, 
it is reasonable 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 final rule may imply a more permanent system than the 
other 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 final rule 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.
    Three alternatives were considered for the 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 fishing year established by the final rule and a January 1 opening 
would reduce the potential of a March closure. However, only the final 
rule would guarantee that the fishery is open in March, absent a 0-lb 
(0-kg) quota. Thus, the final rule best meets the Councils' objectives.
    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

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the rule, and shall designate such publications as ``small entity 
compliance guides.'' As part of this rulemaking process, NMFS prepared 
a fishery bulletin, which also serves as a small entity compliance 
guide. The fishery bulletin will be sent to all permit holders for the 
coastal migratory pelagic fishery.

List of Subjects in 50 CFR Part 622

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

    Dated: June 30, 2005.
Rebecca Lent
Deputy Assistant Administrator for Regulatory Programs, 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.  622.4, 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) * * *
    (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 permits 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

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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.
* * * * *

0
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.
* * * * *

0
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. 05-13390 Filed 7-6-05; 8:45 am]
BILLING CODE 3510-22-S