[Federal Register Volume 79, Number 53 (Wednesday, March 19, 2014)]
[Proposed Rules]
[Pages 15284-15287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-06067]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 131206999-4206-01]
RIN 0648-BD83


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Coastal Migratory Pelagic Resources in the Gulf of Mexico and Atlantic 
Region; Amendment 20A

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 regulations to implement Amendment 20A to the 
Fishery Management Plan for the Coastal Migratory Pelagic Resources 
(CMP) in the Gulf of Mexico and Atlantic Region (FMP) (Amendment 20A), 
as prepared and submitted by the Gulf of Mexico (Gulf) and South 
Atlantic Fishery Management Councils (Councils). If implemented, this 
rule would restrict sales of king and Spanish mackerel caught under the 
bag limit (those fish harvested by vessels that do not have a valid 
commercial vessel permit for king or Spanish mackerel and are subject 
to the bag limits specified in 50 CFR 622.382) and remove the income 
qualification requirements for king and Spanish mackerel commercial 
vessel permits. The purpose of this rule is to obtain more accurate 
landings data while ensuring the CMP fishery resources are utilized 
efficiently.

DATES: Written comments must be received on or before May 5, 2014.

ADDRESSES: You may submit comments on the proposed rule, identified by 
``NOAA-NMFS-2013-0168'' by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0168, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Susan Gerhart, Southeast 
Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    Electronic copies of the documents supporting this proposed rule, 
which include an environmental assessment, a Regulatory Flexibility Act 
analysis, and a regulatory impact review, may be obtained from the 
Southeast Regional Office Web site at http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_sa/cmp/index.html.
    Comments regarding the burden-hour estimates or other aspects of 
the collection-of-information requirements contained in the proposed 
rule may be submitted in writing to Anik Clemens, Southeast Regional 
Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701; and OMB, 
by email at [email protected], or by fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Susan Gerhart, telephone: 727-824-
5305, or email: [email protected].

SUPPLEMENTARY INFORMATION: The coastal migratory pelagic (CMP) fishery 
in the Gulf of Mexico (Gulf) and the Atlantic is managed under the FMP. 
The FMP was prepared by the Councils and implemented through 
regulations at 50 CFR part 622 under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

Management Measures Contained in the Proposed Rule

    Currently, no Federal permits are required to sell CMP species, 
although commercial vessel permits are required to exceed the bag limit 
for king and Spanish mackerel. All fish harvested in Federal waters 
that are sold are considered commercial harvest and count towards a 
species' commercial quota, whether or not the fisherman has a Federal 
commercial permit. The Councils and NMFS are concerned that landings 
from recreational trips that are sold may contribute to the commercial 
quota and lead to early closures in the commercial sector. Reducing the 
sale of fish caught under the bag limit should improve the accuracy of 
data by reducing ``double counting,'' i.e., harvest from a single trip 
that is counted towards both the commercial quota and recreational 
allocation. This practice occurs when the same catches are reported 
through recreational surveys and commercial trip tickets and logbooks.
    For the Gulf region, this rule proposes to prohibit the sale of 
bag-limit-caught king and Spanish mackerel, except in two limited 
circumstances. First, bag-limit-caught king and Spanish mackerel could 
be sold when harvested during a for-hire trip on a vessel with both a 
Gulf Charter Vessel/Headboat Coastal Migratory Pelagic Fish Permit and 
either a King Mackerel Commercial Permit or a Spanish Mackerel 
Commercial Permit, as appropriate to the species harvested or 
possessed. The purpose of this exception is to preserve a historic 
practice that is important to Gulf charter and headboat businesses. 
Second, king and Spanish mackerel harvested during state-permitted 
tournaments may be donated to a dealer who has a state or Federal 
permit and then sold by that dealer, if the proceeds are donated to 
charity. Dealers receiving such fish must report them as tournament-
caught fish. In the Gulf, sales from dually-permitted vessels or 
tournaments would only occur in Florida, because all other Gulf states 
prohibit the sale of any bag-limit-caught fish.
    Currently, there is no Federal dealer permit for king or Spanish 
mackerel. However, a proposed rule published on January 2, 2014 (79 FR 
81) for the Generic Dealer Amendment includes an action to implement a 
Gulf and South Atlantic dealer permit, which would be required for king 
and Spanish mackerel dealers. Therefore, if the Generic Dealer 
Amendment is approved and a final rule is implemented, there would be a 
Federal dealer permit for king and Spanish mackerel. In addition, the

[[Page 15285]]

proposed rule for the Generic Dealer Amendment includes a restriction 
stating that a federally permitted dealer must first receive fish only 
from a federally permitted vessel. This provision would be codified at 
Sec.  622.386(c), and provides: ``Coastal migratory pelagic fish 
harvested in or from the Gulf or South Atlantic EEZ may be first 
received by a dealer who has a valid Gulf and South Atlantic dealer 
permit, as required under Sec.  622.370(c)(1), only from a vessel that 
has a valid Federal commercial vessel permit, as required under Sec.  
622.370(a), or a charter vessel/headboat permit for coastal migratory 
pelagic fish, as required under Sec.  622.370(b).''
    Amendment 20A and this proposed rule would allow a federally 
permitted dealer to receive tournament-caught fish and then sell those 
fish as long as the proceeds are donated to a charity. Therefore, if 
the final rule for the Generic Dealer Amendment is implemented, an 
exception to the restriction in Sec.  622.386(c) would be added in the 
final rule for Amendment 20A, allowing dealers to sell tournament-
caught fish and donate the proceeds to a charity. Specifically, 
paragraph Sec.  622.386(e) would be amended to provide: ``Federally 
permitted dealers who accept donated king or Spanish mackerel under 
this section are exempt from the restrictions in section (c) of this 
paragraph, and can accept these fish from non-federally permitted 
vessels.''
    For the Atlantic region, this rule proposes to prohibit the sale of 
all bag-limit-caught king and Spanish mackerel, except those harvested 
during a state-permitted tournament. As in the Gulf, king and Spanish 
mackerel harvested during state-permitted tournaments may be donated to 
a dealer who has a state or Federal permit and then sold by that 
dealer, if the proceeds are donated to charity. Dealers receiving such 
fish must report them as tournament-caught fish.
    In addition, the rule proposes to remove the income qualification 
requirements for king and Spanish mackerel commercial vessel permits. 
Currently, to obtain or renew a king or Spanish mackerel commercial 
vessel permit, a minimum amount of the applicant's earned income must 
be derived from commercial fishing. These requirements are difficult to 
enforce, and have recently been removed as requirements to obtain or 
renew a Gulf reef fish permit. No other Federal permit in the Southeast 
Region has an income qualification requirement except the spiny lobster 
permit, which mirrors requirements by Florida. This action would not 
affect the number of king mackerel permits issued, which are limited 
access, but could increase the number of Spanish mackerel permits 
issued, which are open access. Eliminating the income qualification 
requirements would afford more flexibility to fishermen by allowing 
them to earn a larger portion of income from non-fishing occupations.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
Assistant Administrator has determined that this proposed rule is 
consistent with Amendment 20A, the FMP, 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.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) for 
this rule, as required by section 603 of the Regulatory Flexibility 
Act, 5 U.S.C. 603. The IRFA describes the economic impact that this 
proposed rule, if implemented, would have on small entities. A 
description of the action, why it is being considered, and the 
objectives of and legal basis for this action are contained in the 
preamble. A copy of the full analysis is available from the NMFS (see 
ADDRESSES). A summary of the IRFA follows.
    The purpose of this rule is twofold: (1) to reduce current sales of 
Spanish and king mackerel harvested in Federal waters by vessels 
without Federal commercial permits for those species and by vessels 
with these permits during for-hire fishing trips, and (2) to eliminate 
current income requirements for Federal commercial king and Spanish 
mackerel permits. Another action to reduce the number of Federal 
commercial king mackerel permits, which are limited access, was 
considered but rejected in favor of the status quo.
    Reducing sales of bag-limit-caught king and Spanish mackerel 
harvested in Federal waters of the Gulf and Atlantic Region is needed 
to reduce double-counting of landings. Double-counting occurs because 
landings of for-hire vessels are included in the recreational count 
and, when sold, also count against the commercial quota. Inclusion in 
the commercial count can contribute to earlier closures of the 
commercial sector and erroneous estimates of landings that impact stock 
assessments. Eliminating current income requirements is needed to end 
an unnecessary barrier to entry in the fishery. Presently, a non-owner 
operator of a permitted vessel or any applicant for a new Spanish 
mackerel or transferred king mackerel permit cannot qualify for either 
permit if the applicant's income from fishing is less than $10,000, or 
less than 25 percent of the applicant's income from all sources for 1 
out of the past 3 years. Removing the current income requirements may 
increase participation in this fishery, and would allow permit holders 
greater flexibility in obtaining non-fishery income.
    The Magnuson-Stevens Act provides the statutory basis for the 
proposed action.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified.
    The rule would apply directly to businesses that operate in the 
finfish fishing (NAICS 114111) and scenic sightseeing water 
transportation industries (NAICS 487201), the latter of which includes 
for-hire fishing. The prohibition of bag-limit sales would directly 
affect all businesses: (1) In the finfish and for-hire fishing 
industries that sell king and Spanish mackerel harvested in Federal 
waters of the Gulf and Atlantic Region and landed by vessels without 
valid Federal commercial permits for the species; and (2) in the for-
hire fishing industry that sell king and Spanish mackerel harvested in 
Federal waters of the Atlantic Region and landed by vessels with the 
valid Federal commercial permits. The elimination of the income 
requirements for Federal king and Spanish mackerel commercial permits 
would directly affect businesses in both industries that presently 
possess or aspire to possess at least one of the two permits.
    On June 20, 2013, the SBA issued a final rule revising the small 
business size standards for several industries effective July 22, 2013 
(78 FR 37398). That rule increased the size standard for commercial 
finfish harvesters from $4.0 million to $19.0 million in annual 
receipts. The number of small businesses that operate in the finfish 
fishing industry and own or operate commercial fishing vessels that 
harvest king and Spanish mackerel in Federal waters without the 
respective commercial permits is unknown. Sales of bag-limit quantities 
of king and Spanish mackerel harvested by these vessels would represent 
incidental landings. However, NMFS estimates that a small business in 
the finfish fishing industry without the Federal commercial permits and 
with an average size commercial vessel and 3-person crew could lose up 
to $99 to $149 per trip from the prohibition of bag-limit sales of king 
mackerel and up to $124

[[Page 15286]]

per trip from the prohibition of bag-limit sales of Spanish mackerel. 
To avoid the losses of sales of Spanish mackerel, a small commercial 
fishing business could purchase a Federal commercial Spanish mackerel 
permit for $25 each year. To avoid losses of sales of king mackerel, 
the same small business in the finfish fishing industry would have to 
acquire a Federal commercial king mackerel permit from an existing 
permit holder. A query of transferred king mackerel permits from 
January 1, 2008, through June 2013, was conducted and reported costs of 
acquiring a permit were found to range from $0 to $10,000 per 
transferred permit, with a median of $3,625 and average of $2,860. 
Given that cost, a small business in the finfish fishing industry that 
incidentally catches king mackerel in Federal waters likely would not 
choose to purchase a permit that is used to commercially target the 
species.
    The small business size standard for the scenic sightseeing water 
transportation industry is $7.0 million in annual receipts. For-hire 
fishing vessels that harvest king and Spanish mackerel in Federal 
waters of the Gulf and Atlantic Region are required to have Federal 
Gulf CMP and South Atlantic CMP charter/headboat permits, respectively. 
NMFS estimates that up to 79 percent (1,153) of the for-hire vessels 
that have a Federal South Atlantic charter/headboat CMP permit, and up 
to 91 percent (1,234) of the for-hire vessels that have a Federal Gulf 
CMP permit, lack valid Federal commercial king mackerel permits and may 
land and sell king mackerel in bag-limit quantities. From that, NMFS 
estimates that as many as to 2,387 small for-hire fishing businesses 
could be adversely affected by the prohibition on sales of king 
mackerel caught without a valid Federal commercial king mackerel 
permit. NMFS expects that significantly less than 2,387 small 
businesses could be adversely affected by the prohibition on sales of 
Spanish mackerel without a valid Federal commercial Spanish mackerel 
permit, because it is an open access permit. As many as 307 small for-
hire fishing businesses with a Federal Atlantic charter/headboat CMP 
permit could lose sales of king and Spanish mackerel that were 
harvested during a for-hire trip.
    NMFS estimates that a small for-hire fishing business without valid 
Federal commercial king and Spanish mackerel permits could lose 
revenues from sales of king mackerel of as much as $33 to $49.5 per 
angler onboard, and of Spanish mackerel as much as $41.25 per angler 
onboard, per for-hire trip., Presuming then an average of 3 anglers on 
aboard, NMFS estimates a for-hire fishing vessel could lose, on 
average, as much as $99 to $149 per trip from the prohibition of bag-
limit sales of king mackerel and $124 per trip from the prohibition of 
bag-limit sales of Spanish mackerel. Those figures would also apply to 
small for-hire fishing businesses with the valid Federal commercial 
permits that operate in Federal waters of the Atlantic Region. The 
figures, however, presume anglers catch and land marketable sizes and 
the maximum amount allowed, do not take any mackerel home with them 
and, instead, give all to the vessel's crew who, in turn, sell it. 
Small for-hire fishing businesses that operate and sell king and 
Spanish mackerel in the Gulf Council's jurisdiction could avoid those 
losses by acquiring the Federal commercial permits for the species, 
while those that operate and sell the species in the South Atlantic 
Council's jurisdiction could not, although some may be able to reduce 
losses by relocating to the Gulf Council's jurisdiction.
    Eliminating the income requirements for the Federal commercial king 
and Spanish mackerel permits would apply to all of the small businesses 
that presently possesses or seek to possess one of the 1,658 valid 
Federal commercial king mackerel permits, and any that presently 
possesses one of the 1,285 Spanish mackerel permits or seeks to acquire 
one. Eliminating the income requirements would generate a beneficial 
economic impact because it would eliminate the time and other costs 
currently incurred by small businesses to demonstrate that they meet 
the income requirements to obtain a permit. It would also benefit any 
small business, such as a new business, that cannot satisfy the income 
requirements because its income from fishing is either less than 
$10,000 or less than 25 percent of its income from all sources during 
one of the three calendar years preceding the application.
    The above prohibitions on sales of king and Spanish mackerel would 
have an indirect effect on small businesses that operate in the fish 
and seafood merchant wholesales industry (NAICS 424460), which has a 
small business size standard of 100 employees. It is unknown how many 
of these small businesses could be indirectly affected, because a 
Federal dealer license is not required to purchase king and Spanish 
mackerel harvested and landed by vessels operating in Federal waters. 
However, 573 fish and seafood wholesale establishments were located in 
the Gulf and South Atlantic States in 2011.
    The alternative to allow sales of king and Spanish mackerel caught 
by anglers aboard for-hire fishing vessels with Federal commercial king 
and Spanish mackerel permits in the South Atlantic Council's 
jurisdiction was considered, but rejected, although it would have a 
smaller adverse economic impact on small businesses in the for-hire 
fishing industry than the preferred alternative. However, this rejected 
alternative would not reduce double-counting of landings, and therefore 
would not meet the Council's objective of improving landings data.
    The status quo alternative that allows sales of king and Spanish 
mackerel harvested by commercial vessels without Federal commercial 
king and Spanish mackerel permits was considered, but rejected, because 
the South Atlantic Council chose to prohibit all sales of king and 
Spanish mackerel harvested by vessels without the above Federal 
commercial permits. The status quo alternative, however, would have a 
smaller adverse economic impact on small businesses in the finfish 
fishing industry than the preferred alternative.
    The alternative to prohibit sales of king and Spanish mackerel by 
anglers aboard for-hire fishing vessels with Federal commercial king 
and Spanish mackerel permits in the Gulf Council's jurisdiction was 
considered, but rejected because it would have a larger adverse 
economic impact on small businesses in the for-hire fishing industry 
than the preferred alternative.
    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 Office of Management and Budget 
(OMB) control number.
    This proposed rule contains collection-of-information requirements 
subject to the PRA. NMFS is revising the collection-of-information 
requirements under OMB control number 0648-0205. NMFS estimates the 
removal of the income qualification requirements for commercial king 
and Spanish mackerel permit holders will result in a net decrease in 
the time to complete the Federal Permit Application (for all 
applicants). In addition, the current burden estimate of 40 minutes per 
applicant to complete the application form would decrease to 30 minutes 
per applicant, because the application instructions have been 
simplified and reorganized so that there are half as many pages of 
instructions to read when filling out the application. These

[[Page 15287]]

estimates of the public reporting burden include the time for reviewing 
instructions, gathering and maintaining the data needed, and completing 
and reviewing the collection-of-information.
    These requirements have been submitted to OMB for approval. NMFS 
seeks public comment regarding: Whether this proposed collection-of-
information is necessary for the proper performance of the functions of 
the agency, including whether the information will have practical 
utility; the accuracy of the burden estimate; ways to enhance the 
quality, utility, and clarity of the information to be collected; and 
ways to minimize the burden of the collection-of-information, including 
through the use of automated collection techniques or other forms of 
information technology. Send comments regarding the burden estimate or 
any other aspect of the collection-of-information requirements, 
including suggestions for reducing the burden, to NMFS and to OMB (see 
ADDRESSES).

List of Subjects in 50 CFR Part 622

    Atlantic, Coastal Migratory Pelagic Resources, Fisheries, Fishing, 
Gulf, King mackerel, Spanish mackerel.

    Dated: March 13, 2014.
Eileen Sobeck,
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 OF MEXICO, 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.  622.370, paragraphs (a)(1) and (a)(3) are revised to read 
as follows:


Sec.  622.370  Permits

    (a) * * *
    (1) King mackerel. For a person aboard a vessel to be eligible for 
exemption from the bag limits, to fish under a quota, or to sell 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. See Sec.  622.371 regarding a limited 
access system applicable to commercial vessel permits for king mackerel 
and transfers of permits under the limited access system.
* * * * *
    (3) Spanish mackerel. For a person aboard a vessel to be eligible 
for exemption from the bag limits, to fish under a quota, or to sell 
Spanish mackerel in or from the Gulf, Mid-Atlantic, or South Atlantic 
EEZ, a commercial vessel permit for Spanish mackerel must have been 
issued to the vessel and must be on board.
* * * * *


Sec.  622.371  [Amended]

0
3. In Sec.  622.371, remove paragraphs (c), (d), and (e), and 
redesignate paragraph (f) as paragraph (c).
0
4. In Sec.  622.386, paragraph (a) is revised and paragraphs (d) and 
(e) are added to read as follows:


Sec.  622.386   Restrictions on sale/purchase.

* * * * *
    (a) King and Spanish mackerel. A king or Spanish mackerel harvested 
or possessed in the EEZ on board a vessel that does not have a valid 
commercial vessel permit for king mackerel, as required under Sec.  
622.370(a)(1), or a valid commercial vessel permit for Spanish 
mackerel, as required under Sec.  622.370(a)(3), or a king or Spanish 
mackerel harvested in the EEZ or possessed under the bag limits 
specified in Sec.  622.382, may not be sold or purchased, except when 
harvested under the bag limits on board a vessel operating in the Gulf 
as a charter vessel or headboat and that vessel has both a valid 
Federal charter vessel/headboat permit for Gulf coastal migratory 
pelagic fish, as required under Sec.  622.370(b)(1), and a valid 
commercial vessel permit for king mackerel or Spanish mackerel, as 
required under Sec.  622.370(a)(1), as appropriate to the species 
harvested or possessed.
* * * * *
    (d) Cut-off (damaged) king or Spanish mackerel. A person may not 
sell or purchase a cut-off (damaged) king or Spanish mackerel that does 
not comply with the minimum size limits specified in Sec.  622.380(b) 
or (c), respectively, or that is in excess of the trip limits specified 
in Sec.  622.385(a) or (b), respectively.
    (e) State-permitted tournaments. King or Spanish mackerel harvested 
in a state-permitted tournament in the South Atlantic, Mid-Atlantic, or 
the Gulf may not be sold for profit but may be donated to a state 
dealer or Federal dealer. Dealers accepting these tournament-caught 
king or Spanish mackerel must be permitted and must comply with all 
transfer and reporting requirements. Specifically, dealers must donate 
the monetary value (sale price or cash equivalent of value received for 
the landings) from the sale of tournament-caught fish to a charitable 
organization, as determined by the state. The monetary value received 
from the sale of tournament-caught fish may not be used to pay for 
tournament expenses. In addition, the fish must be handled and iced 
according to the Hazard Analysis Critical Control Point (HACCP) 
standards, and dealers must report tournament caught king and Spanish 
mackerel as ``tournament catch'' and comply with all Federal and state 
reporting requirements.

[FR Doc. 2014-06067 Filed 3-18-14; 8:45 am]
BILLING CODE 3510-22-P