[Federal Register Volume 76, Number 13 (Thursday, January 20, 2011)]
[Proposed Rules]
[Pages 3596-3598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1182]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 0907151138-1011-02]
RIN 0648-AY03


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Queen Conch Fishery of Puerto Rico and the U.S. Virgin Islands; Queen 
Conch Management Measures

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would implement measures to address 
overfishing of Caribbean queen conch in the U.S. Caribbean. If 
promulgated, this rule would extend the queen conch seasonal closure 
from 3 months to 5 months, and prohibit fishing for and possession of 
queen conch in or from the Caribbean exclusive economic zone (EEZ) east 
of 64[deg]34' W. longitude, which includes Lang Bank east of St. Croix, 
U.S. Virgin Islands (USVI), when harvest and possession of queen conch 
is prohibited in St. Croix territorial waters as a result of a 
territorial quota closure. The intended effects of this proposed rule 
are to prevent additional fishing pressure on queen conch in the U.S. 
Caribbean, and to improve enforcement of regulations affecting the 
queen conch resource by improving compatibility among Federal and 
territorial regulations.

DATES: Written comments must be received on or before February 22, 
2011.

ADDRESSES: You may submit comments on the proposed rule identified by 
0648-AY03, by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
     Mail: Britni Tokotch, Southeast Regional Office, NMFS, 263 
13th Avenue South, St. Petersburg, FL 33701.
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. All comments received are a part 
of the public record and will generally be posted to http://www.regulations.gov without change. All personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Comments received through means not specified in this rule will not 
be considered.
    Copies of the regulatory amendment, which includes an Environmental 
Assessment (EA), an initial regulatory flexibility analysis (IRFA), a 
regulatory impact review, and a fishery impact statement may be 
obtained from Britni Tokotch, Southeast Regional Office, NMFS, 263 13th 
Avenue South, St. Petersburg, FL 33701 or may be downloaded from the 
Southeast Regional Office Web site at http://sero.nmfs.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Britni Tokotch, 727-824-5305.

SUPPLEMENTARY INFORMATION: The Caribbean queen conch fishery is managed 
under the Fishery Management Plan for Queen Conch Resources of Puerto 
Rico and the USVI (FMP). The FMP was prepared by the Caribbean Fishery 
Management Council (Council), and is implemented through regulations at 
50 CFR part 622 under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act).

Background

    Amendment 1 to the FMP (70 FR 62073, Oct. 28, 2005), prohibited 
fishing for and possession of Caribbean queen

[[Page 3597]]

conch in or from the Caribbean EEZ, except during October through June 
in the area east of 64[deg]34' W. longitude, which includes Lang Bank 
east of St. Croix, USVI (this area will subsequently be referred to as 
Lang Bank). Amendment 1 was intended to reduce fishing mortality and 
help rebuild the overfished stock of Caribbean queen conch.
    According to the NMFS Report on the Status of the U.S. Fisheries 
for 2008, Caribbean queen conch continues to be overfished and is 
undergoing overfishing. Additional management measures are therefore 
needed to prevent additional fishing pressure on the queen conch 
resource.
    In June 2008, the USVI implemented several measures to address 
overfishing of queen conch, including setting an annual quota of 50,000 
lb (28,680 kg) for St. Croix, an annual quota of 50,000 lb (28,680 kg) 
for St. Thomas and St. John, and closing the fishery seasonally from 
June 1 through October 31 each year. In April 2009, the St. Croix quota 
was determined to be reached, and territorial waters off St. Croix were 
closed to queen conch fishing beginning May 1, 2009. In a letter to the 
Council dated April 21, 2009, the USVI government requested the Council 
implement a compatible quota closure for queen conch through an 
emergency rule that would prohibit the harvest and possession of queen 
conch in or from the EEZ when St. Croix closes territorial waters to 
queen conch fishing.
    The Council and NMFS have evaluated this request and have 
determined that an emergency rule to end overfishing of queen conch is 
not warranted at this time. The available data for queen conch landings 
does not distinguish between harvest obtained from Federal vs. 
territorial waters; therefore, it is not clear whether these management 
measures would actually end overfishing of the queen conch resource. 
Instead, the Council and NMFS acted to implement a compatible seasonal 
closure and compatible quota closure for queen conch through a 
regulatory amendment and this rulemaking. These measures would prevent 
additional fishing pressure from occurring, until additional landings 
data are available to determine if these measures would end 
overfishing. Additionally, these measures would aid in enforcement 
efforts because when territorial waters close, Federal waters would 
close as well.

Provisions Contained in This Proposed Rule

    The USVI seasonal closure is a 5-month closure, from June 1 through 
October 31 each year. To be compatible with this territorial seasonal 
closure, this rule would extend the current 3-month (July 1 through 
September 30) closure in Federal waters at Lang Bank to a 5-month 
closure, from June 1 through October 31 each year.
    This rule would also implement a compatible queen conch harvest 
quota closure for Federal waters. Under this rule, when the USVI closes 
territorial waters off St. Croix to the harvest and possession of queen 
conch, NMFS would concurrently close the queen conch harvest in Lang 
Bank. NMFS would notify the public of the closure by filing a notice 
with the Office of the Federal Register. During the closure, fishing 
for or possession of Caribbean queen conch on board a fishing vessel, 
in or from Lang Bank would be prohibited. Closure of Lang Bank would be 
in effect until the next fishing season for territorial waters opens 
November 1, each year.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the regulatory amendment, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An IRFA was prepared, 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 summary of the analysis follows. 
A copy of this analysis is available from the Council (see ADDRESSES).
    The purpose of this proposed rule is to relieve fishing pressure on 
queen conch and enhance enforcement of regulatory measures to protect 
queen conch by prohibiting fishing for and possession of queen conch in 
or from Lang Bank, when harvest of queen conch is prohibited in St. 
Croix territorial waters as a result of a either quota or seasonal 
closure. The Magnuson-Stevens Act provides the statutory basis for this 
proposed rule.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified.
    This proposed rule, if adopted, would directly apply to and may 
directly affect commercial fishermen and for-hire vessels in St. Croix 
that harvest queen conch. The Small Business Administration (SBA) has 
established size criteria for all major industry sectors in the U.S., 
including commercial fish harvesters and for-hire operations. A 
business involved in fish harvesting is classified as a small business 
if it is independently owned and operated, is not dominant in its field 
of operation (including its affiliates), and has combined annual 
receipts not in excess of $4.0 million (NAICS code 114111, finfish 
fishing) for all its affiliated operations worldwide. For for-hire 
vessels, the other qualifiers apply and the revenues threshold is $7.0 
million (NAICS code 713990, recreational industries).
    All commercial fishermen who may be affected by this proposed rule 
are determined, for the purpose of this analysis, to be small entities. 
Federal permits are not required to fish in the U.S. Caribbean. The 
USVI, however, requires a commercial fishing permit to harvest marine 
species for commercial purposes. In 2008, there were 383 permitted 
fishermen in the USVI, of which 223 were in St. Croix and 160 were in 
St. Thomas and St. John. The ex-vessel value of total harvests by USVI 
fishermen in 2008 was approximately $8.8 million, or approximately 
$23,000 per fisherman. This estimate is substantially lower than the 
SBA small entity threshold. Comparable values for just St. Croix 
fishermen are not available. However, if all revenues for the USVI are 
attributed to St. Croix fishermen, the appropriate average revenue per 
entity would be only approximately $39,000. Even this value, as an 
extreme upper bound for average revenues for St. Croix fishermen, is 
significantly lower than the SBA threshold.
    The number of for-hire dive operations in the USVI is unknown. 
However, 27 for-hire vessels were identified in the USVI in 2000. 
Information on the economic profile of these vessels is not available. 
However, for-hire vessels have been determined to be small business 
entities in all Federal fishery-related regulatory actions to date in 
the Gulf of Mexico and South Atlantic. Therefore, all for-hire 
businesses that may be affected by this proposed rule are determined, 
for the purpose of this analysis, to be small business entities.
    This proposed rule would not establish any new reporting, 
recordkeeping, or other compliance requirements.
    It is unknown whether this proposed rule, if adopted, would have 
any direct

[[Page 3598]]

adverse economic effect on any small entities. Available queen conch 
harvest data do not distinguish between queen conch harvested from 
territorial waters and from Lang Bank. Incompatible Federal and St. 
Croix territorial water seasonal closures only began in 2008, and the 
first quota closure of St. Croix territorial waters occurred in 2009. 
It is unknown whether landings, originating from Lang Bank, continued 
after closure of the territorial waters in these years, or whether the 
territorial closure resulted in fishermen ceasing harvest activity in 
Lang Bank. If the territorial possession prohibition resulted in 
fishermen stopping all harvest activity, including activity that 
historically occurred in the Lang Bank, then the proposed rule would 
not have any direct effect on harvest activity or associated revenues 
from Lang Bank, because no such harvest activity would be expected to 
continue to occur. As a result, the only direct effect of the proposed 
action on fishery participants would be the benefits of regulatory 
simplicity.
    If, however, harvest activity in Lang Bank continues during the 
period when the territorial waters closed, this proposed rule would 
result in a reduction in the short-term revenues associated with these 
harvests. As previously stated, available data do not allow 
quantification of any harvests from Lang Bank that may be affected. In 
general, however, because queen conch are distributed in habitats where 
water depth is less than 100 fathoms (183 m), and the majority of the 
benthos at that depth around St. Croix is located in territorial 
waters, it is assumed that the majority of queen conch in the USVI are 
harvested from territorial waters. As a result, any reduction in 
harvests, and associated revenues, from Lang Bank that might occur as a 
result of compatible closures is expected to be minimal. However, 
because of the absence of location-specific harvest data, public 
comment is solicited on the validity of these conclusions.
    Only one alternative to the proposed rule was considered. This 
alternative, the no action alternative (status quo), would not 
implement compatible closures and, as a result, would not achieve the 
Council's objectives.

List of Subjects in 50 CFR Part 622

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

    Dated: January 13, 2011.
Samuel D. Rauch III,
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.  622.32, paragraph (b)(1)(iv) is revised to read as 
follows:
    Sec.  622.32 Prohibited and limited harvest species.
* * * * *
    (b) * * *
    (1) * * *
    (iv) No person may fish for, or possess on board a fishing vessel, 
a Caribbean queen conch in or from the Caribbean EEZ, in the area east 
of 64[deg]34[min] W. longitude which includes Lang Bank east of St. 
Croix, U.S. Virgin Islands, except during November 1 through May 31.
* * * * *
    3. In Sec.  622.33, paragraph (d) is added to read as follows:
    Sec.  622.33 Caribbean EEZ seasonal and/or area closures.
* * * * *
    (d) Queen conch closure in the Caribbean EEZ. (1) Pursuant to the 
procedures and criteria established in the FMP for Queen Conch 
Resources of Puerto Rico and the U.S. Virgin Islands, when the U.S. 
Virgin Islands closes territorial waters off St. Croix to the harvest 
and possession of queen conch, the Regional Administrator will 
concurrently close the Caribbean EEZ, in the area east of 
64[deg]34[min] W. longitude which includes Lang Bank, east of St. 
Croix, U.S. Virgin Islands, by filing a notification of closure with 
the Office of the Federal Register. Closure of the adjacent EEZ will be 
effective until the next fishing season for territorial waters opens 
November 1.
    (2) During the closure, as specified in paragraph (c)(1) of this 
section, no person may fish for or possess on board a fishing vessel, a 
Caribbean queen conch, in or from the Caribbean EEZ, in the area east 
of 64[deg]34[min] W. longitude which includes Lang Bank, east of St. 
Croix, U.S. Virgin Islands.

[FR Doc. 2011-1182 Filed 1-19-11; 8:45 am]
BILLING CODE 3510-22-P