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]

Download as PDF 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: VerDate jul<14>2003 16:00 Jul 06, 2005 Jkt 205001 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. PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 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, E:\FR\FM\07JYR1.SGM 07JYR1 39188 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 VerDate jul<14>2003 16:00 Jul 06, 2005 Jkt 205001 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, PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 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 E:\FR\FM\07JYR1.SGM 07JYR1 Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Rules and Regulations 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 VerDate jul<14>2003 16:00 Jul 06, 2005 Jkt 205001 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 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 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 E:\FR\FM\07JYR1.SGM 07JYR1 39190 Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Rules and Regulations 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). VerDate jul<14>2003 16:00 Jul 06, 2005 Jkt 205001 [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. PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 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