Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; Amendment 15, 39187-39190 [05-13390]
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Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Rules and Regulations
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.
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
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
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 13th
Avenue South, St. Petersburg, FL 33701.
FOR FURTHER INFORMATION CONTACT:
Steve Branstetter; telephone: 727–551–
5796; fax: 727–824–5308; e-mail:
Steve.Branstetter@noaa.gov.
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 MagnusonStevens 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
SUPPLEMENTARY INFORMATION:
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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 MiamiDade/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 MagnusonStevens Act and other applicable laws.
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39187
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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Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Rules and Regulations
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
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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,
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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.
For the reasons set out in the preamble,
50 CFR part 622 is amended as follows:
I
PART 622—FISHERIES OF THE
CARIBBEAN, GULF, AND SOUTH
ATLANTIC
1. The authority citation for part 622
continues to read as follows:
I
Authority: 16 U.S.C. 1801 et seq.
2. In § 622.4, paragraphs (a)(2)(ii),
(a)(2)(iii), (g)(1), (o), and (q) are revised
to read as follows:
I
§ 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 § 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
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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 § 622.17(c) for a commercial vessel
permit for golden crab, in § 622.18(e) for
a commercial vessel permit for South
Atlantic snapper-grouper, or in
§ 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
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39189
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 incomequalifying 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.
*
*
*
*
*
I 3. In § 622.30, paragraph (b)(2) is
revised, and paragraph (b)(3) is added to
read as follows:
§ 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.
*
*
*
*
*
I 4. In § 622.44, paragraph (a)(2)(ii)(A) is
revised to read as follows:
§ 622.44
*
*
*
*
(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
§ 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
§ 622.34(p) or § 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 § 622.42(c)(1)(i)(A)(2)(i).
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[FR Doc. 05–13390 Filed 7–6–05; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 050331089–5172–02; I.D.
031005A]
RIN 0648–AS74
Fisheries of the Northeastern United
States; Northeast Multispecies
Fishery; Total Allowable Catches for
Georges Bank Cod, Haddock, and
Yellowtail Flounder in the U.S./Canada
Management Area for Fishing Year
2005
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
Commercial trip limits.
*
(iii) King mackerel in or from the EEZ
harvested with gear other than runaround 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.
*
*
*
*
*
SUMMARY: The following Total
Allowable Catches (TACs) in the U.S./
Canada Management Area are
implemented for the 2005 fishing year
(FY): 260 mt of Georges Bank (GB) cod,
7,590 mt of GB haddock, and 4,260 mt
of yellowtail flounder. This action is
intended to meet the conservation and
management requirements of the
Magnuson-Stevens Fishery
Conservation and Management Act.
DATES: This rule is effective July 7,
2005, through April 30, 2006.
ADDRESSES: Copies of the
Transboundary Management Guidance
Committee’s (TMGC) 2004 Guidance
Document and copies of the
Environmental Assessment of the 2005
TACs (including the Regulatory Impact
Review and Regulatory Flexibility
Analysis (FRFA)) may be obtained from:
Sustainable Fisheries Division, National
Marine Fisheries Service, One
Blackburn Drive, Gloucester, MA 01930;
telephone (978) 281–9315.
NMFS prepared a summary of the
FRFA, which is contained in the
Classification section of this final rule.
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FOR FURTHER INFORMATION CONTACT:
Thomas Warren, Fishery Policy Analyst,
(978) 281–9347, fax (978) 281–9135, email Thomas.Warren@NOAA.gov.
A
proposed rule for this action was
published on April 14, 2005 (70 FR
19724), with public comments accepted
through May 16, 2005. A detailed
description of the administrative
process used to develop the TACs was
contained in the preamble of the
proposed rule and is not repeated here.
The Northeast (NE) Multispecies
Fishery Management Plan (FMP)
specifies a procedure for setting annual
hard (i.e., the fishery or area closes
when a TAC is reached) TAC levels for
GB cod, GB haddock, and GB yellowtail
flounder. The regulations governing the
annual development of TACs
(§ 648.85(a)(2)) were implemented by
Amendment 13 to the FMP (69 FR
22906; April 27, 2004) in order to be
consistent with the U.S./Canada
Resource Sharing Understanding
(Understanding), which is an informal
understanding between the United
States and Canada that outlines a
process for the management of the
shared GB groundfish resources. The
Understanding specifies an allocation of
TAC for these three stocks for each
country, based on a formula that
considers historical catch percentages
and current resource distribution. The
TACs apply to the shared GB groundfish
resources. The shared stocks of GB cod
and haddock in U.S. waters represent
portions (subsets) of the stocks of GB
cod and haddock managed in the U.S.
Exclusive Economic Zone under the
FMP. The shared stock of GB yellowtail
flounder in U.S. waters represents the
entire stock of GB yellowtail flounder
managed by the FMP.
On September 16, 2004, the New
England Fishery Management Council
recommended the following U.S. TACs
for FY 2005: 260 mt of GB cod, 7,590 mt
of GB haddock, and 4,260 mt of GB
yellowtail flounder. These 2005 TACs
are based upon stock assessments
conducted in June 2004 by the
Transboundary Resource Assessment
Committee (TRAC). The 2005 cod and
yellowtail flounder TACs represent a
decrease from 2004 TAC levels, and the
2005 haddock TAC represents an
increase from the 2004 TAC. The
percentage shares of these stocks for
2004 and 2005 between the U.S. and
Canada are presented in the following
tables:
SUPPLEMENTARY INFORMATION:
E:\FR\FM\07JYR1.SGM
07JYR1
Agencies
[Federal Register Volume 70, Number 129 (Thursday, July 7, 2005)]
[Rules and Regulations]
[Pages 39187-39190]
From the Federal Register Online via the Government Printing 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: Steve.Branstetter@noaa.gov.
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,
[[Page 39188]]
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
[[Page 39189]]
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
[[Page 39190]]
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