[Federal Register Volume 79, Number 223 (Wednesday, November 19, 2014)]
[Rules and Regulations]
[Pages 68802-68805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27280]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 130805680-4915-02]
RIN 0648-BD58


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Coastal Migratory Pelagic Resources in the Gulf of Mexico and Atlantic 
Region; Framework Action

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 management measures 
described in a framework action to the Fishery Management Plan for the 
Coastal Migratory Pelagic Resources in the Gulf of Mexico and Atlantic 
Region (FMP) (Framework Action), as prepared by the South Atlantic and 
Gulf of Mexico Fishery Management Councils (Councils). This final rule 
allows transfer of Atlantic migratory group Spanish mackerel caught in 
excess of the trip limit with gillnet gear from one vessel with a 
Federal Spanish mackerel commercial permit to another vessel

[[Page 68803]]

with a Federal Spanish mackerel commercial permit that has not yet 
harvested the trip limit; allows the receiving vessel involved in a 
Spanish mackerel transfer-at-sea to have three gillnets onboard instead 
of two; and modifies the commercial trip limits for king mackerel in 
the Florida east coast subzone. This rule also implements an 
administrative change to correct an inadvertent error in a prior 
rulemaking unrelated to this Framework Action. The purpose of this 
final rule is to modify the restrictions on transfer-at-sea and gillnet 
allowances for Atlantic migratory group Spanish mackerel to minimize 
dead discards of Spanish mackerel and modify the king mackerel trip 
limit in the Florida east coast subzone to optimize utilization of the 
resource.

DATES: This rule is effective December 19, 2014.

ADDRESSES: Electronic copies of the Framework Action, which includes an 
environmental assessment and a regulatory impact review, may be 
obtained from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov.

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

SUPPLEMENTARY INFORMATION: The coastal migratory pelagic (CMP) fishery 
of the South Atlantic and the Gulf of Mexico (Gulf), which includes 
Spanish mackerel, king mackerel, and cobia, 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).
    On March 19, 2014, NMFS published a proposed rule for the Framework 
Action and requested public comment (79 FR 15293). The proposed rule 
and Framework Action outline the rationale for the actions contained in 
this final rule. A summary of the actions implemented by this final 
rule is provided below.
    This final rule allows transfer-at-sea of Spanish mackerel in 
gillnets between vessels with Federal Spanish mackerel commercial 
permits that are using gillnet gear and allows vessels engaged in this 
transfer activity to have three gillnets onboard. The transfer-at-sea 
of harvested fish is only allowed if all the following conditions are 
met: (1) The owner or operator of both vessels involved in the transfer 
reports the transfer by telephone to the NOAA Office of Law Enforcement 
in Port Orange, Florida, prior to the transfer; (2) harvesting gear 
must be allowable gillnet gear, as specified in 50 CFR 622.377(b); (3) 
the transfer can only take place in Federal waters between two vessels 
with valid commercial permits for Spanish mackerel; (4) the receiving 
vessel must possess no more than three gillnets after the transfer is 
completed; (5) all Spanish mackerel exceeding the applicable daily 
vessel limit shall remain in the gillnet until transferred; (6) the 
quantity of Spanish mackerel transferred to any single vessel shall not 
exceed the applicable daily trip limit; and (7) transfers of Spanish 
mackerel may only occur once per vessel per trip. This final rule also 
modifies the two gillnet possession restriction in order to account for 
the portion of a third net that is present onboard a vessel that 
receives Spanish mackerel transferred at sea. Only vessels engaged in 
this transfer activity will be allowed to have three gillnets onboard.
    This final rule modifies the Atlantic king mackerel Florida east 
coast subzone trip limit so that during March 1 through March 31, if 70 
percent or more of the quota has been harvested, the trip limit will 
remain at 50 fish per vessel per trip; however, if less than 70 percent 
of the quota has been harvested during that time, the trip limit will 
increase to 75 fish per vessel per trip until March 31. From April 1 
through October 31, the Florida east coast subzone is not part of the 
Gulf migratory group king mackerel area; it is part of the Atlantic 
migratory group king mackerel area.

Additional Changes Contained in This Final Rule

    Drift gillnets for all CMP species were prohibited in the South 
Atlantic exclusive economic zone (EEZ) through the final rule 
implementing Amendment 3 to the FMP (54 FR 29561, July 13, 1989) and 
through the final rule implementing the Resubmission of Disapproved 
Measures in Amendment 3 to the FMP (55 FR 14833, April 19, 1990). Run-
around gillnets for king mackerel were prohibited in the South Atlantic 
EEZ through the final rule implementing Amendment 8 to the FMP (63 FR 
10561, March 4, 1998). However, the regulations currently at 50 CFR 
622.387, which address prevention of gear conflicts between hook-and-
line and gillnet vessels in the South Atlantic EEZ, were inadvertently 
not removed at the time when the final rule for Amendment 8 was 
implemented. This rule corrects this mistake by removing the 
regulations at Sec.  622.387. This revision is unrelated to the 
Framework Action.

Comments and Responses

    NMFS received two comment submissions on the Framework Action and 
the proposed rule. One comment was from a government organization that 
stated it had no comment. One comment was from a commercial fishing 
organization that stated it was in support of the Framework Action and 
the proposed rule. NMFS received no other comments related to the 
Framework Action or the proposed rule. Therefore, no changes were made 
to the final rule in response to public comments.

Classification

    The Regional Administrator, Southeast Region, NMFS, has determined 
that this final rule is necessary for the conservation and management 
of CMP species and is consistent with the FMP, the Magnuson-Stevens 
Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared for 
this action. An FRFA incorporates the initial regulatory flexibility 
analysis (IRFA), a summary of the significant economic issues raised by 
public comment, NMFS' responses to those comments, and a summary of the 
analyses completed to support the action. The FRFA uses updated 
information to produce more current estimates of numbers of small 
entities and impacts; however, its conclusions are consistent with the 
IRFA. The FRFA also includes an administrative action to remove 
regulatory text that was not included in the IRFA. The FRFA follows.
    The Magnuson-Stevens Act provides the statutory basis for this 
final rule and the preamble to this final rule provides a statement of 
the need for and objectives of this rule.
    No public comments specific to the IRFA were received and, 
therefore, no public comments are addressed in this FRFA. Moreover, 
there were no comments pertaining to the economic impacts.
    The final rule allows the transfer of Spanish mackerel by gillnet 
in the Atlantic EEZ, modifies existing trip limits for king mackerel in 
the Florida east coast subzone, and removes regulatory text concerning 
prevention of conflicts between hook-and-line and gillnet fishermen 
that is no longer necessary.
    NMFS expects the final rule to directly affect commercial fishermen 
in the CMP fishery, and these fishermen represent businesses in the 
finfish

[[Page 68804]]

harvesting industry. A business (including subsidiaries and affiliates) 
involved in finfish harvesting is classified as a small business if its 
total annual revenue is no greater than the Small Business 
Administration (SBA) size standard for that industry. SBA adjusted the 
size standard for finfish fishing (NAICS 114111) from $19 million to 
$20.5 million to account for inflation and the adjusted size standard 
went into effect on July 14, 2014.
    Presently, there are 1,759 commercial fishing vessels with a valid 
commercial Spanish mackerel permit (as of April 21, 2014). It is 
unknown how many of those 1,759 vessels may volunteer to participate in 
a transfer by gillnet. Consequently, all of the businesses that hold at 
least one of the 1,736 commercial vessel permits for Spanish mackerel 
(as of November 5, 2013) are presumed to be small businesses. However, 
22 vessels with a valid commercial Spanish mackerel gillnet permit have 
a valid or renewable king mackerel gillnet permit. Hence, it is 
estimated that at least 22 vessels that harvest Spanish mackerel will 
be directly affected by the rule. The above 22 gillnet fishing vessels 
are owned and/or operated by 18 businesses in the finfish fishing 
industry and each of these businesses is expected to be small.
    In the proposed rule, NMFS estimated that there were 1,658 
commercial fishing vessels with a valid or renewable permit for king 
mackerel, all of which were presumed to be small businesses. This 
number was updated on April 21, 2014, at which time we estimated that 
there were 1,483 commercial fishing vessels with a valid or renewable 
king mackerel permit. From this number, NMFS narrowed the number of 
impacted entities to those permit holders who reside in Florida in 
Miami/Dade County up through Volusia County, as these entities are the 
most likely to fish in the Florida east coast subzone. NMFS estimated 
that those residents totaled approximately 55 percent of all permit 
holders. Some number of additional entities living outside Miami/Dade 
County through Volusia County may also travel to and harvest from the 
Florida east coast subzone, but the inclusion of these entities in the 
analysis would not likely materially affect the assessment of the 
expected economic effects. Based on the 55 percent calculated above, we 
estimate that 816 of the 1,483 vessels with a valid or renewable permit 
will be directly affected by the action to modify trip limits in the 
Florida east coast subzone. Although commercial vessels that land king 
mackerel harvest other species, it is presumed that all of the 
businesses that own and/or operate one or more of the above 816 vessels 
are small.
    Since implementation of the gillnet prohibitions, the relevance of 
regulations at 50 CFR 622.387, which address prevention of gear 
conflicts between hook-and-line and gillnet vessels in the South 
Atlantic EEZ, has been zero. This is because the regulations 
implementing Amendment 3 and Amendment 8 to the FMP prohibited drift 
gillnets and run-around gillnets in the South Atlantic EEZ, 
respectively; however, the regulations implementing Amendment 8 
inadvertently did not remove the provision at 50 CFR 622.387 at that 
time.
    This final rule will end the prohibition on gillnet transfers of 
Atlantic migratory group Spanish mackerel in the EEZ, allow a vessel 
with a commercial Spanish mackerel permit to possess three gillnets in 
the Atlantic EEZ, and establish a new reporting requirement. The 
operator(s) of the two vessels engaged in a transfer will be required 
to report the transfer by telephone to the NOAA Office of Law 
Enforcement in Port Orange, Florida, prior to the transfer. Because any 
transfer would be voluntary, any of the 18 or more small businesses 
that own and/or operate gillnet fishing vessels would likely 
participate in a transfer only if it has a net economic benefit. 
Because transfers would allow at least 22 vessels to catch more than 
the trip limit if they transfer the amount of catch in excess of the 
trip limit to another permitted vessel, up to the trip limit, this 
action may increase the rate of landings. Vessels may engage in such 
transfers especially along Florida's east coast after the trip limit is 
reduced, as vessels that would not have previously reached the trip 
limit may now receive additional fish, up to the trip limit. NMFS 
considered one alternative, the no action alternative, to the proposed 
action of eliminating the prohibition on the transfer of Spanish 
mackerel by gillnet. The status quo alternative was rejected because it 
would not provide the potential economic benefit to small businesses as 
described above.
    This final rule will change the commercial trip limit for king 
mackerel in the Florida east coast subzone without changing any current 
reporting or recordkeeping requirements. Under this final rule, any 
vessel that currently lands up to 50 fish per trip in February would 
experience no loss of landings or ex-vessel (dockside) revenues. For 
trips that have historically harvested more than 50 fish per trip in 
February, this final rule is expected to reduce the king mackerel 
harvest by as much as 25 fish weighing 375 lb (170 kg) and with a 
dockside value of $829 per trip per vessel in February of each year. 
Any vessel that currently lands up to 50 fish in March would experience 
no loss of landings and dockside revenues. Those that currently land 
more than 50 fish per trip in March are expected to reduce the king 
mackerel harvest by as much as 25 fish weighing 375 kg and with a 
dockside value of $829 per trip per vessel in March. Consequently, 
vessels that have consistently landed less than 50 fish per trip in 
February and March would experience no adverse economic impact. Those 
vessels that have landed more than 50 fish per trip during those months 
would experience losses of dockside revenue up to $829 per trip. If the 
rate of landings in the first 3 months of the 5-month season were such 
that the quota could be reached weeks before March 31, the lower trip 
limit in February could increase both the length of the open season and 
number of trips when ex-vessel price of king mackerel is typically at 
its highest in March. However, since the 2012-2013 season, there have 
been no early closures despite increases in the trip limit in February 
and March, and the final rule's lower expected trip limits in February 
and March could result in lower annual landings.
    This rule also modifies the commercial trip limit for king mackerel 
in the Florida east coast subzone. Among the actions in this rule, only 
this action is expected to potentially result in any adverse economic 
effect on any small entities. NMFS considered three alternatives, 
including the status quo alternative, to this action. The status quo 
commercial trip limit in the Florida east coast subzone is 50 fish from 
November 1 through January 31 each year. Then, beginning on February 1, 
and continuing through March 31, if 75 percent or more of the Florida 
east coast subzone quota has been taken by January 31, the trip limit 
remains 50 fish. However, if less than 75 percent of the quota has been 
taken by January 31, the trip limit increases to 75 fish. This 
alternative was not selected because it could result in a season that 
closes while the increased demand for king mackerel that occurs during 
the Lenten season is still high.
    The second alternative would set the king mackerel commercial trip 
limit in the Florida east coast subzone at 50 fish for the entire 
fishing season. This alternative was not adopted because it would not 
provide the flexibility to allow small businesses to increase landings 
of king mackerel when demand increases during the Lenten season.

[[Page 68805]]

    The third alternative would set the king mackerel trip limit in the 
Florida east coast subzone at 75 fish for the entire fishing season. 
This alternative was not adopted because it would likely increase the 
king mackerel harvest prior to the Lenten season, reduce landings of 
king mackerel and associated revenues when demand is high during the 
Lenten season, and result in earlier closure, potentially even before 
the period of heightened demand.
    Finally, this rule also removes language in the codified text 
regarding prevention of gear conflicts between hook-and-line and 
gillnet vessels in the South Atlantic EEZ. This change corrects an 
inadvertent error in the text, as discussed in the preamble. The 
regulation contained in Sec.  622.387 was necessary before separate 
quotas, trip limits, and gillnet permits were implemented for the 
harvest of king mackerel off Florida. Since implementation of those 
management measures, the impact and relevance of Sec.  622.387 have 
been zero. Consequently, its removal would have no impact on small 
businesses.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as small entity compliance 
guides. As part of the rulemaking process, NMFS prepared a fishery 
bulletin, which also serves as a small entity compliance guide. The 
fishery bulletin will be sent to all CMP vessel permit holders in the 
Atlantic region.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Gillnet, Mackerel, Reporting and recordkeeping 
requirements, South Atlantic, Trip limits.

    Dated: November 12, 2014,
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 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.  622.377, paragraph (b)(2)(iii) is revised and paragraph 
(b)(2)(vi) is added to read as follows:


Sec.  622.377  Gillnet restrictions.

* * * * *
    (b) * * *
    (2) * * *
    (iii) No more than two gillnets, including any net in use, may be 
possessed at any one time, except for a vessel with a valid commercial 
vessel permit for Spanish mackerel engaged in a transfer as specified 
in paragraph (b)(2)(vi) of this section. If two gillnets, including any 
net in use, are possessed at any one time, they must have stretched 
mesh sizes (as allowed under the regulations) that differ by at least 
.25 inch (.64 cm), except for a vessel with a valid commercial vessel 
permit for Spanish mackerel engaged in a transfer as specified in 
paragraph (b)(2)(vi) of this section, in which case the vessel may 
possess two gillnets of the same mesh size provided that one of the 
nets is transferred to that vessel.
* * * * *
    (vi) A portion of a gillnet may be transferred at sea only in the 
EEZ and only from a vessel with a valid commercial vessel permit for 
Spanish mackerel that has exceeded a trip limit specified in Sec.  
622.385 (b) to another vessel with a valid commercial vessel permit for 
Spanish mackerel that has not yet reached the trip limit (the receiving 
vessel). Only one such transfer is allowed per vessel per day. In 
addition, to complete a legal transfer at sea, all of the following 
must apply:
    (A) All fish exceeding the applicable commercial trip limit may not 
be removed from the gillnet until the transfer is complete (i.e., the 
gillnet is onboard the receiving vessel). The fish transferred to the 
receiving vessel may not exceed the applicable commercial trip limit.
    (B) The receiving vessel may possess no more than three gillnets on 
board after the transfer is complete.
    (C) Prior to cutting the gillnet and prior to any transfer of 
Spanish mackerel from one vessel to another, the owner or operator of 
both vessels must contact NMFS Office for Law Enforcement, Port Orange, 
Florida, phone: 1-386-492-6686.


0
3. In Sec.  622.385, the third sentence in the introductory text and 
paragraph (a)(2)(i) are revised to read as follows:


Sec.  622.385  Commercial trip limits.

    * * * Except for Atlantic migratory group Spanish mackerel 
harvested by gillnet, as specified in Sec.  622.377(b)(2)(vi), a 
species subject to a trip limit specified in this section taken in the 
EEZ may not be transferred at sea, regardless of where such transfer 
takes place, and such species may not be transferred in the EEZ. * * *
* * * * *
    (a) * * *
    (2) * * *
    (i) Eastern zone--Florida east coast subzone. In the Florida east 
coast subzone, king mackerel in or from the EEZ may be possessed on 
board at any time or landed in a day from a vessel with a commercial 
permit for king mackerel as required under Sec.  622.370(a)(1) as 
follows:
    (A) From November 1 through the end of February--not to exceed 50 
fish.
    (B) Beginning on March 1 and continuing through March 31--
    (1) If 70 percent or more of the Florida east coast subzone quota 
as specified in Sec.  622.384(b)(1)(i)(A) has been taken--not to exceed 
50 fish.
    (2) If less than 70 percent of the Florida east coast subzone quota 
as specified in Sec.  622.384(b)(1)(i)(A) has been taken--not to exceed 
75 fish.
* * * * *


Sec.  622.387  [Removed and Reserved]

0
4. Remove and reserve Sec.  622.387.

[FR Doc. 2014-27280 Filed 11-18-14; 8:45 am]
BILLING CODE 3510-22-P