[Federal Register Volume 62, Number 120 (Monday, June 23, 1997)]
[Proposed Rules]
[Pages 33800-33811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16360]
[[Page 33800]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 970606131-7131-01; I.D. 041497C]
RIN 0648-AG25
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Coastal Migratory Pelagic Resources of the Gulf of Mexico and South
Atlantic; Amendment 8
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule, request for comments.
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SUMMARY: NMFS issues this proposed rule to implement Amendment 8 to the
Fishery Management Plan for the Coastal Migratory Pelagic Resources of
the Gulf of Mexico and South Atlantic (FMP). Amendment 8 would revise
the earned income requirement for a commercial vessel permit for king
or Spanish mackerel, establish a moratorium on the issuance of
commercial vessel permits for king mackerel, extend the management area
for cobia to include the exclusive economic zone (EEZ) off the states
of Virginia through New York, specify allowable gear in the fisheries
for coastal migratory pelagic resources, allow the retention of up to
five cut-off king mackerel in excess of an applicable commercial trip
limit, and add to the management measures that may be established or
modified by the FMP's framework procedure. In addition, NMFS proposes
to clarify that a Federal vessel permit is not required for the use of
a sea bass pot north of Cape Hatteras, NC; clarify what constitutes
commercial fishing for the purpose of obtaining a commercial vessel
permit; revise the definition of ``charter vessel'' to conform to a new
definition of charter fishing in the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act); make explicit
the authority of NMFS to reopen a fishery that has been closed
prematurely, i.e., prior to a quota having been reached; and correct
references in the codified text. The intended effects of this rule are
to protect king and Spanish mackerel from overfishing and maintain
healthy stocks while still allowing catches by important commercial and
recreational fisheries and to clarify and correct the regulations.
DATES: Written comments must be received on or before August 7, 1997.
ADDRESSES: Comments on the proposed rule must be sent to Mark
Godcharles, Southeast Regional Office, NMFS, 9721 Executive Center
Drive N., St. Petersburg, FL 33702.
Comments regarding the collection-of-information requirements
contained in this rule should be sent to Edward E. Burgess, Southeast
Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg,
FL 33702, and to the Office of Information and Regulatory Affairs,
Office of Management and Budget (OMB), Washington, DC 20503 (Attention:
NOAA Desk Officer).
Copies of Amendment 8, which includes an environmental assessment,
a regulatory impact review (RIR), and an initial regulatory flexibility
analysis (IRFA), may be obtained from the South Atlantic Fishery
Management Council, Southpark Building, One Southpark Circle, Suite
306, Charleston, SC 29407-4699; Phone: 803-571-4366; Fax: 803-769-4520
or from the Gulf of Mexico Fishery Management Council, Suite 1000, 3018
U.S. Highway 301 North, Tampa, FL 33619; Phone: 813-228-2815; Fax: 813-
225-7015.
FOR FURTHER INFORMATION CONTACT: Mark Godcharles, 813-570-5305.
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) and is implemented under the
authority of the Magnuson-Stevens Act by regulations at 50 CFR part
622.
In Amendment 8, the Councils propose to add two fishery problem
statements to the FMP, increase the minimum earned income requirement
to qualify for a commercial mackerel permit, implement a 5-year
moratorium on issuing new permits for commercial king mackerel fishing
in the EEZ and establish criteria for transferring permits during the
moratorium, specify authorized gears and requirements for testing
experimental gears used to harvest species managed under the FMP,
extend the cobia management area to include the Mid-Atlantic EEZ, and
make major revisions to the FMP's framework procedure for changing
catch specifications.
Earned Income Requirement for Mackerel Permits
Currently, to obtain a commercial king or Spanish mackerel permit,
a vessel owner or operator must document that at least 10 percent of
his/her earned income was derived from the sale of fish during one of
the 3 calendar years preceding the application. The Councils propose to
require that at least 25 percent of earned income, or at least $10,000,
must have been derived from the sale of fish or from charter fishing
during one of the 3 calendar years preceding the application. As
recently defined in the Magnuson-Stevens Act, ``charter fishing''
includes operations of either a charter vessel or a headboat. The
Councils chose this alternative as the least restrictive option to
differentiate more equitably between fishermen subject to bag limits
and fishermen subject to the quotas--the latter being fishermen who are
primarily dependent on king and Spanish mackerel for their livelihoods.
The Councils expect the revised earned income or gross sales
requirement would eliminate from participation under the quotas some
fishermen who currently qualify for commercial permits based on sales
of small amounts of fish. Under the revised requirement, such fishermen
would be restricted to the bag limits.
Effective on the first of the month following the date that is 13
months after the date of publication of the final rule to implement
Amendment 8, the ``revised earned income implementation date,'' only
those vessel permits for king or Spanish mackerel that were issued
under the revised earned income or gross sales requirement would be
valid for king or Spanish mackerel. Under this implementation schedule,
a king or Spanish mackerel permit that is valid on the date of
publication of the final rule would remain valid through the date of
expiration stated on the permit. King and Spanish mackerel permits
issued after the date of publication of the final rule would be valid
for the normal period, generally 1 year, if the revised earned income
or gross sales requirement is met, and would be valid until the revised
earned income implementation date, if the revised earned income or
gross sales requirement is not met.
Moratorium on Commercial Permits for King Mackerel
The Councils propose a moratorium on commercial permits for king
mackerel effective through October 15, 2000. To obtain a king mackerel
permit under the moratorium, a vessel owner must have owned a vessel
with a commercial vessel permit for king mackerel on or before October
16, 1995, the control date for the king mackerel fishery (60 FR 53576,
October 16, 1995).
Under the proposed permit moratorium, separate Federal
[[Page 33801]]
commercial permits for king and Spanish mackerel would be issued
instead of the existing combined Federal commercial permit for king and
Spanish mackerel.
Under the moratorium, a commercial vessel permit for king mackerel
that is not renewed or that is revoked would not be reissued. A permit
is considered to be not renewed when an application for renewal is not
received by the Regional Administrator, Southeast Region, NMFS, within
1 year of the permit expiration date. (The designation ``Regional
Administrator'' appears in the regulatory text as ``Regional Director''
or ``RD''.)
An owner or operator of a vessel that does not have a king mackerel
permit on the date of publication of the final rule to implement
Amendment 8 would have to submit an application for a permit to the
Regional Administrator, postmarked or hand delivered not later than 90
days after the date of publication of the final rule.
Under the moratorium, an owner would not be issued initial
commercial vessel permits in numbers exceeding the number of vessels
permitted in the king mackerel fishery that he/she owned simultaneously
on or before October 16, 1995. For example, an owner who owned two
permitted vessels at one time on or before October 16, 1995, and
currently owns one permitted vessel, would qualify for an additional
permit for a vessel he/she owns. On the other hand, an owner who owned
only one permitted vessel on or before October 16, 1995, but who
currently owns a second permitted vessel, would not qualify for an
additional permit. This would not preclude an owner from acquiring
additional permits through transfers of permits under the moratorium.
An owner would be allowed to transfer a permit to another vessel
owned by the same entity. In addition, an owner whose earned income or
gross sales qualified for a commercial vessel permit would be able to
transfer the permit to the buyer of the permitted vessel or to the
owner of another vessel. Such new owner could receive an initial king
mackerel permit without meeting the earned income or gross sales
requirement and would have 1 full calendar year to meet that
requirement, plus an additional 3 \1/2\ months to document his/her
earned income or gross sales and apply for renewal and for NMFS to
process the application and issue a renewed permit. The new owner,
rather than the vessel operator, would be required to meet the earned
income or gross sales requirement for such renewal. The grace period,
i.e., 1 full calendar year plus 3 \1/2\ months, would also be available
to an owner who loses an earned-income or gross-sales qualifying
operator. Finally, an owner of a vessel whose permit was qualified for
by an operator could transfer the permit to the operator if the
operator buys the vessel.
The Councils propose the moratorium to stabilize participation in
the king mackerel fishery and prevent further increases in effort on
stocks that are currently undergoing rebuilding. For commercial king
mackerel fisheries, the Councils want to prevent speculative entry, and
possibly reduce the number of permitted vessels, while they consider a
limited access program. NMFS's permit records indicate an increase of
102 percent in the number of commercial king mackerel permits issued
from the 1987/88 to the 1993/94 fishing year (1,280 to 2,588). The
Councils believe that continuation of the moratorium through October
15, 2000, would allow ample time to develop a long-range limited access
program that would provide a more equitable distribution of catch among
current participants who have had a historical dependence on the
fishery.
The 90-day period for applications for king mackerel permits under
the moratorium for vessels not currently permitted would allow a basis
for planning further management measures. After that 90-day period, the
maximum number of vessels permitted for king mackerel under the
moratorium would be known, rather than being subject to additional
applications/permits. In addition, the 90-day period would limit the
duration of the administrative functions of ascertaining eligibility
for and issuing permits under the moratorium criterion.
Effective on the first of the month following the date that is 13
months after the date of publication of the final rule to implement
Amendment 8, the ``moratorium implementation date,'' only those vessel
permits for king mackerel that were issued under the moratorium
criterion would be valid for king mackerel. (The moratorium
implementation date would be the same date as the revised earned income
implementation date.) Under this implementation schedule, a king
mackerel permit that is valid on the date of publication of the final
rule would remain valid through the date of expiration stated on the
permit. King mackerel permits renewed after the date of publication of
the final rule would be valid for the normal period, generally 1 year,
if the moratorium criterion is met, and would be valid until the
moratorium implementation date, if the moratorium criterion is not met.
Extend the Cobia Management Area
The Councils propose to extend the cobia management area northward
to include the area of authority of the Mid-Atlantic Fishery Management
Council. By repositioning the northern boundary at the New York/
Connecticut boundary, the cobia management area would be expanded to
include the EEZ off the states of Virginia through New York. With this
proposal, the Councils are trying to provide more consistency with
National Standard 3 of the Magnuson-Stevens Act, which requires that,
to the extent practicable, an individual stock of fish be managed as a
unit throughout its range.
The proposal would extend into the Mid-Atlantic EEZ two management
measures for cobia--the recreational/commercial bag limit of 2 fish per
person per day, regardless of the number of trips or duration of a
trip; and the minimum size limit of 33 inches (83.8 cm), fork length.
Authorized Gear
The Councils propose to specify, revise, and clarify the gear
allowed to be used in directed fishing in the EEZ of the Gulf, South
Atlantic, and Mid-Atlantic for all coastal pelagic species.
Accordingly, the proposed rule contains new and revised definitions of
fishing gears. Hook-and-line gear would be defined to include automatic
reel, bandit gear, buoy gear, handline, longline, and rod and reel.
Each of the hook-and-line gears would be defined. (The current
definition of buoy gear would not be changed.) Three types of gillnets,
i.e., long gillnet, stab net, and trammel net, would be defined and the
definition of run-around gillnet would be revised. ``Long gillnet''
would be defined as a gillnet that has a float line that is more than
1,000 yd (914 m) in length. The current regulations at 50 CFR 622.31(d)
contain restrictions on the use of such a gillnet for coastal migratory
pelagic fish in the Gulf, Mid-Atlantic, or South Atlantic EEZ. The term
``long gillnet'' would simplify references to such a gillnet. The
Councils propose the changes to clarify intent, prevent gear conflicts,
and, by specifying possession limits for incidental catch when gear not
authorized in directed fishing is on board, enhance enforceability.
King Mackerel, Atlantic Migratory Group
For the Atlantic migratory group of king mackerel in the area north
of Cape Lookout Light, NC (i.e., north of 34 deg.37.3'
[[Page 33802]]
N. lat.), all gear would be allowed in the directed fishery for this
group except a long gillnet. In that area, the proposal would allow the
use of drift gillnets, which currently is prohibited throughout the
management area for all coastal pelagic species. South of Cape Lookout
Light, NC, proposed authorized gear would be automatic reel, bandit
gear, handline, and rod and reel.
King Mackerel, Gulf Migratory Group
For the Gulf migratory group of king mackerel, the Councils re-
specified that the only authorized gears for directed fishing for this
group would remain hook-and-line gear and run-around gillnet. The use
of unauthorized gears in directed fishing for Gulf migratory group king
mackerel would continue to be prohibited as would the possession of
king mackerel on vessels with a drift gillnet or a long gillnet on
board. Also, the purse seine incidental catch allowance for king
mackerel would remain unaffected. However, fishermen would be allowed
to make multi-species trips with unauthorized gear on board (e.g.,
shrimp trawls, crab and lobster traps) and commercially harvest king
mackerel using authorized gear. Such commercial harvest would be
subject to the existing trip limits. Currently, the regulations do not
allow multi-species trips or the possession of Gulf group king mackerel
on board vessels carrying unauthorized gear. In specifying authorized
gears in Amendment 5 (55 FR 29370, July 19, 1990), the Councils did not
intend to disallow traditional multi-species fishing practices in the
Gulf of Mexico.
Spanish Mackerel, Atlantic Migratory Group
For vessels fishing in the EEZ north of Cape Lookout, NC, the
Councils propose the following authorized gears for the Atlantic
migratory group of Spanish mackerel: Automatic reel, bandit gear,
handline, rod and reel, cast net, run-around gillnet, stab net, and
drift gillnet. South of Cape Lookout, their proposals would allow
automatic reel, bandit gear, handline, rod and reel, cast net, run-
around gillnet, and stab net.
For vessels gillnetting Spanish mackerel in the EEZ off the Florida
east coast north of the Dade/Monroe County, FL, boundary, the Councils
propose additional regulations regarding gillnet construction and
deployment. The float line for a gillnet used for directed Spanish
mackerel fishing could not be longer than 800 yd (732 m). Additionally,
the float line would have to contain a maximum of nine distinctive
floats that would be different from the usual net buoys, spaced
uniformly at a distance of 100 yd (91.44 m) or less, and bear the
official number of the vessel from which the gillnet is deployed.
Under the proposals, a vessel targeting Spanish mackerel could have
two gillnets on board, but only one could be deployed at any one time.
The stretched-mesh sizes of the two gillnets would have to differ by at
least 0.25 inch (0.64 cm); the gillnet used to capture Spanish mackerel
still would have to comply with the current minimum mesh size, i.e.,
3.5 inches (8.9 cm), stretched mesh. The gillnet could not be soaked
for more than 1 hour. The soak period would begin with placement of the
first mesh in the water and end with its retrieval back on board the
vessel in a continuous effort to completely remove the gillnet from the
water. Limiting soak time to no more than 1 hour prevents
indiscriminate use of nets, reduces incidental take of non-targeted
species, and improves the quality of harvested fish.
Spanish Mackerel, Gulf Migratory Group
For the Gulf migratory group of Spanish mackerel, the Councils
proposed no revisions. Consequently, authorized gears would remain all
gears except long gillnets, drift gillnets, and purse seines.
Cero
For cero in the South Atlantic and Gulf EEZ, the Council proposes
to authorize all gears except long gillnets.
Cobia
For cobia in the Mid-Atlantic and South Atlantic EEZ, the proposed
authorized gears are automatic reel, bandit gear, handline, rod and
reel, and pelagic longline. Authorized gears in the Gulf EEZ would be
all gears except long gillnets.
Dolphin
For dolphin in the South Atlantic EEZ, proposed authorized gears
are automatic reel, bandit gear, handline, pelagic longline, and rod
and reel. Authorized gears in the Gulf EEZ would be all gears except
long gillnets.
Little Tunny
For little tunny in the South Atlantic EEZ south of Cape Lookout,
NC, proposed authorized gears are automatic reel, bandit gear,
handline, pelagic longline, and rod and reel. In the South Atlantic EEZ
north of Cape Lookout, the Councils propose to allow all gears except
long gillnets. In the Gulf EEZ, authorized gears would be all gears
except long gillnets.
Bluefish
For bluefish in the Gulf EEZ, authorized gears would be all gears
except long gillnets.
Unauthorized Gear
Under Amendment 8, unauthorized gear could not be used in directed
fishing for any coastal migratory pelagic species. Possession of
coastal migratory pelagic fish would be prohibited for a vessel which
fished in the Gulf, Mid-Atlantic, or South Atlantic EEZ with a long
gillnet on board. The existing prohibition for possessing king or
Spanish mackerel on a vessel that fished in the Gulf EEZ with a drift
gillnet on board would remain in effect. Otherwise, as proposed, for a
vessel with unauthorized gear on board that has fished in the EEZ, the
incidental catch of king and Spanish mackerel and cobia would be
limited to the bag limit and would be unlimited for coastal migratory
pelagic species without bag limits. No changes are proposed for
incidental catch allowances for king and Spanish mackerel taken by
purse seines and for king mackerel taken in a gillnet with a mesh size
less than 4.75 inches (12.1 cm), stretched mesh.
Experimental Gears
The Councils also propose certain specifications and criteria for
the use of experimental gear to harvest coastal migratory pelagic fish
in the South Atlantic and Mid-Atlantic. Use of experimental gear, i.e.,
gear not authorized by the regulations, would constitute exempted
fishing when conducted under a permit issued pursuant to regulations on
exempted fishing, contained in 50 CFR 600.745(b). Those regulations
adequately address the Councils' concerns related to the development
and testing of experimental gear in directed coastal migratory pelagic
fisheries. Consequently, no additional regulations are proposed.
Exemption to King Mackerel Trip Limits
To minimize waste, the Councils propose to allow the retention on a
vessel holding a commercial king mackerel permit of five cut-off king
mackerel per trip (i.e., king mackerel that have been damaged/severed
by predators, such as barracuda or sharks, during capture). Such
damaged king mackerel would not be counted against commercial vessel
trip limits, could not be sold or purchased, and would be exempt from
the requirement that fish be landed with heads and fins intact.
[[Page 33803]]
Atlantic Group King Mackerel Trip Limits
Under another regulatory action, NMFS implemented the trip limits
proposed in Amendment 8 for commercial vessels fishing for Atlantic
group king mackerel. They became effective September 23, 1996 (61 FR
48848; September 17, 1996). Accordingly, this proposed rule does not
include those trip limits.
Additional Measures in Amendment 8
Amendment 8 contains several measures that do not require changes
in 50 CFR part 622.
Problems in the Fishery
To the ten fishery problems already identified in the FMP, the
Councils propose to add two more, namely:
11. Localized reduction in abundance of fish due to high fishing
pressure; and
12. Disruption of markets.
The proposals identify the Councils' concerns that increased
fishing effort for some species (e.g., dolphin) could reduce
availability in some areas, negatively impact markets, and cause user
conflicts.
Revise the FMP Annual Framework Adjustment Process
Annual Stock Assessment Procedure
The Councils propose the following revisions regarding the
development of the annual report by the Mackerel Stock Assessment Panel
(Panel). They would clarify that stock condition would be assessed in
alternate, even-numbered years. For fish groups that can be managed
separately, the Councils also would require estimates of the spawning
potential ratio (SPR) and fishing mortality rates (F) relative to 20,
30, and 40 percent SPRs (F20%SPR,
F30%SPR,
F40%SPR). The additional information
would help determine and avoid overfished conditions and overfishing
and provide information necessary for rebuilding stocks to maximum
sustainable yield (MSY). The Councils also propose to remove the
requirement that the Panel calculate allowable biological catch (ABC)
separately for eastern and western groups of Gulf group king mackerel
when stock identification data support division.
The Councils also would require the Panel to estimate the current
mixing rate of Atlantic and Gulf migratory groups of king mackerel in
the south Florida mixing zone. That estimate would help in tracking
quotas, determining the impacts of changing seasonal boundary lines now
separating these groups, and evaluating the impacts of establishing a
permanent boundary to separate the two groups. The information also
could aid the Councils in their considerations regarding development of
separate FMPs for coastal migratory pelagic species. That possibility
would be explored in a Council staff report to be prepared after next
year's stock assessment.
Optimum Yield, Overfishing Definitions, and Rebuilding Programs
The Councils propose to revise the definitions of overfished and
overfishing, and to restructure rebuilding programs. The proposals,
initially recommended by the SPR Management Strategy Committee, have
been endorsed by the Panel. The proposed definitions would specify that
a mackerel group would be considered overfished if its transitional SPR
is below 20 percent; the current FMP definition specifies a higher SPR
of 30 percent. Based on these definitions and SPR estimates generated
for the 1997 stock assessment, no mackerel groups would currently be
considered to be overfished. Consequently, if the proposals are
approved, no rebuilding programs would be immediately necessary.
However, the Councils' proposals would, for overfished stocks, require
recovery above overfished levels within a specified time frame, as well
as continued rebuilding to the new optimum yield (OY) targets. The
Councils propose to specify long-term OY at 30 and 40 percent SPRs,
respectively, for the Gulf and Atlantic migratory groups of king and
Spanish mackerel.
For stocks that are not overfished, that is, stocks whose
transitional SPR is equal to or greater than 20 percent, the act of
overfishing would be defined as harvesting at a level which exceeds the
fishing mortality rate associated with the threshold static SPR of 20
percent (F20%SPR). When such
overfishing occurs, the stock may become overfished and, therefore, a
program to reduce fishing mortality rates toward management target
levels, i.e., OY, would be implemented, even if the stock or migratory
group is not in an overfished condition.
The Councils also propose a definition of overfishing for a stock
or migratory group for which insufficient information is available to
determine if it is overfished, based on its transitional SPR. For those
species or groups, overfishing would be defined as a fishing mortality
rate in excess of the fishing mortality rate corresponding to a default
threshold static SPR of 30 percent. Again, if such overfishing occurs,
a program to reduce fishing mortality rates to at least the level
corresponding to management target levels would be implemented.
Councils' Review of Annual Assessment Report
In addition to proposing changes to the procedure for the annual
review of the stock assessment report, the Councils propose an
alternative for considering information received separately from the
annual assessment report. In either instance, the Councils would
consult with their Advisory Panels and Scientific and Statistical
Committees to review the Panel's annual report or other information,
respectively, and provide advice before taking final action. Currently,
the FMP states that the Councils may convene such advisory groups for
these purposes. The requirement to hold a public hearing at the time
and place where the Councils consider the Panel's report, or
information received separately, would apply in either instance.
FMP Framework Management Options Available to the Councils
The Councils would revise five of the nine management measures in
the FMP that may be adjusted under the annual framework process and add
two more. They propose to add the ability to change overfishing levels
and reallocate total allowable catch (TAC) between the commercial and
recreational sectors of the Atlantic group Spanish mackerel fishery.
The proposed revisions would allow the Councils to recommend zero
quotas and bag limits, gear prohibitions, reopenings of closed seasons
or areas, and closures or reopenings of spawning seasons or areas.
The Councils recommend the proposals to clarify the range of
options available and to allow for more timely implementation of
management measures than is possible through the FMP amendment process.
For example, the Councils would be able to respond more quickly to new
information and rapid changes in the stocks indicating a need to adjust
overfishing levels or establish zero bag limits and quotas to avoid
rapid stock depletion. The Councils also want the option of prohibiting
certain gears under the framework process in order to respond quickly
to loopholes in the regulations that frustrate their intent, such as
have occurred in the construction and use of drift gillnets for king
mackerel off the east coast of Florida. The modification to the option
regarding seasons or area closures and reopenings would clarify that
measures to protect spawning fishes could be included as part of the
framework adjustment process.
[[Page 33804]]
Timely reallocation of TAC for Atlantic group Spanish mackerel
would allow for adjustment of quotas in response to recent harvest
information and changes in the fishery. Yearly adjustment would help
mitigate the negative social and economic impacts that either the
commercial or recreational sector might experience given periodic
shifts in effort.
The Councils would further modify the FMP in that the South
Atlantic Fishery Management Council (South Atlantic Council) would
propose regulations for the commercial fishery for Gulf group king
mackerel in the Florida east coast subzone (Dade through Volusia
Counties from November 1 through March 31, yearly). In that area, the
South Atlantic Council would be responsible for setting vessel trip
limits, closing seasons or areas, or adjusting gear restrictions.
Otherwise, no other changes are proposed to revise the FMP provision,
which now requires that the South Atlantic Council and the Gulf of
Mexico Fishery Management Council (Gulf Council) be responsible,
respectively, for the Atlantic and Gulf migratory groups of king and
Spanish mackerel. This proposal would increase administrative
efficiency and reduce costs and burdens to fishermen in this area who
desire to participate in the management process, but now have to
interact with both Councils.
Regulatory Changes That May Be Implemented by NMFS
The Councils' proposed modification of the FMP mirrors those
previously discussed above under the heading FMP Framework Management
Options Available to Councils. The changes would allow NMFS to
implement any of the options that could be adjusted annually by the
Councils. However, under the new authority that would be granted to
NMFS, any reallocation of TAC for Atlantic group Spanish mackerel could
not exceed 10 percent of the recreational allocation or the commercial
quota in any given year. The Councils chose the 10-percent limitation
to ensure that allocations/quotas would be changed gradually and, thus,
minimize social and economic impacts on recreational and commercial
fisheries. Also, any proposed adjustment could be implemented over
several years to reach a desired goal, but would have to be assessed
each year relative to changes in TAC and the potential social and
economic impacts to either sector of the fishery.
The proposed modifications would explicitly authorize NMFS to
reopen a commercial mackerel fishery that was closed prematurely, i.e.,
before the quota was taken. Excessive harvesting capacities in
commercial mackerel fisheries and smaller sub-quotas for gears/
geographical areas have increased the likelihood that premature
closures may occur, especially when adverse weather conditions reduce
harvest rates immediately preceding a projected closure date. The
ability to reopen a commercial fishery would ensure the full economic
benefit of commercial quotas without adversely affecting the resource.
NMFS's existing authority to effect quota closures and the added
authority to reopen would also apply to recreational fisheries if, in
the future, the Councils take action to control recreational harvest by
quotas in addition to, or as a substitute for, bag limits. As is the
case with closures, reopenings would be accomplished through
notification in the Federal Register.
Optimum Yield
The Councils propose to revise the definition of OY to conform with
the proposed overfishing definitions and SPR targets. The South
Atlantic Council's and Gulf Council's targets would be set at OYs of 40
and 30 percent static SPR, respectively. ABCs would be calculated based
on each Council's chosen OY target.
Currently, the OY definition in the FMP states that the long-term
OY goal for mackerels and cobia is MSY. The Councils believe that this
definition may drive spawning stock levels toward the overfished level.
They consider the newly proposed definition to be more risk-averse,
i.e., revising and resetting OY targets at SPRs of 30 and 40 percent
would decrease the risks of overfishing more than setting them at MSY.
Availability of and Comments on Amendment 8
Additional background and rationale for the measures discussed
above are contained in Amendment 8, the availability of which was
announced in the Federal Register on April 23, 1997 (62 FR 19733).
Written comments on Amendment 8 are solicited and must be received by
June 23, 1997. Comments that are received by June 23, 1997, whether
specifically directed to the amendment or the proposed rule, will be
considered in the approval/disapproval decision on Amendment 8.
Comments received after that date will not be considered in the
approval/disapproval decision. All comments received on Amendment 8 or
on this proposed rule during their respective comment periods will be
addressed in the preamble to the final rule.
Additional Changes Proposed by NMFS
In accordance with the northern limit of the regulations on sea
bass in the South Atlantic EEZ, NMFS proposes to clarify, at
Secs. 622.4(a)(2)(vi), 622.6(b)(1), and 622.40(b)(3)(i), that the
permitting, marking, and construction requirements for the use of a sea
bass pot apply in the EEZ between the latitudes of Cape Hatteras, NC,
and Cape Canaveral, FL.
To clarify what constitutes commercial fishing for the purpose of
obtaining a commercial vessel permit, NMFS proposes to replace the
phrase ``sale of fish from the applicant's vessels,'' where it appears
in Sec. 622.4(a)(2), with the phrase ``harvest and first sale of
fish.'' Literal application of the replaced language would preclude a
crew member of a fishing vessel from using salary or shares from
fishing to meet an earned income from fishing requirement for a permit
if such crew member became a vessel owner or operator. Such application
was not intended by the Councils. The revised language would, however,
preclude a person from using the income from fish purchased and resold
to meet an earned income from fishing or gross sales requirement for a
permit.
A recent amendment to the Magnuson-Stevens Act defines the term
``charter fishing'' as ``fishing from a vessel carrying a passenger for
hire * * * who is engaged in recreational fishing.'' To ensure
compatibility with this newly defined term, NMFS proposes to revise the
definition of ``charter vessel'' in Sec. 622.4 and to substitute the
words ``charter fishing'' for the words ``charter or headboat
operations'' where they appear in Sec. 622.4(a)(2)(v) and (vi). As
newly defined, ``charter fishing'' encompasses operations of both
charter vessels and headboats.
As noted above, the Councils propose to make explicit the authority
of NMFS to reopen a commercial mackerel fishery that has been closed
prematurely. NMFS recently approved similar action proposed by the Gulf
Council in Amendment 14 to the Fishery Management Plan for the Reef
Fish Fishery of the Gulf of Mexico. The rationale for these actions
generally applies to all fisheries in which there are quota closures.
Accordingly, for standardization among fisheries, NMFS proposes to add
the explicit authority to reopen the following fisheries in which there
are provisions for quota closures, if they are prematurely closed: Gulf
and South Atlantic allowable octocoral (50 CFR 622.42(b)(1)); and royal
red shrimp in the Gulf (50 CFR 622.42(d)).
To conform with the proposed new definition of ``hook-and-line
gear,''
[[Page 33805]]
NMFS proposes clarifying language where that phrase is used in
connection with authorized or prohibited gears in the snapper-grouper
fishery off the southern Atlantic states (50 CFR 622.35(e)(2)(i) and
622.41(d)(1) and (3)).
NMFS also proposes to make technical corrections to references in
the codified text as follows: In the definition of ``Dealer'' at
Sec. 622.2, the reference would be revised to read ``Sec. 622.10''; in
the description of the reef fish longline and buoy gear restricted area
at Sec. 622.34(c), the reference to figures 1 and 2 would be removed;
in the description of the reef fish stressed area at Sec. 622.34(g),
the reference to figures 3 and 4 would be removed; and in the
restrictions regarding purchase of South Atlantic snapper-grouper at
Sec. 622.45(d)(2), the reference would be revised to read
``Sec. 622.4(a)(2)(vi)''.
As discussed above, Amendment 8 proposes additional marking
requirements for gillnets used for Atlantic group Spanish mackerel.
Inclusion of that new requirement would necessitate restructuring the
existing regulations at 50 CFR 622.6(b), (c), and (d). For ease of
understanding and for clarity, this proposed rule restates the existing
gear identification requirements for traps, pots, and their associated
buoys without substantive change.
Classification
At this time, NMFS has not determined that the amendment that this
rule would implement is consistent with the national standards of the
Magnuson-Stevens Act and other applicable laws. NMFS, in making that
determination, will take into account the data, views, and comments
received during the comment period on Amendment 8.
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
The Councils prepared an IRFA, based on the RIR, that describes the
impact this proposed rule, if adopted, would have on small entities.
Based on the IRFA, NMFS has concluded that Amendment 8, if approved and
implemented through final regulations, would have significant economic
impacts on a substantial number of small entities. A summary of the
IRFA's assessment of the significant impacts on small entities, as
supplemented by NMFS where necessary, follows.
The Councils intend that the proposed management measures continue
the recovery of the stocks, limit the introduction of new gear, and
provide a more flexible and responsive regulatory system. Increasing
entry of participants in the fishery has resulted in shorter seasons to
fill quotas. Uncertainty of stock identification of migratory groups of
king mackerel continues to complicate management of this species. While
the proposed management measures relate to all eight major objectives
of the FMP, the objectives to recover and stabilize the stocks, to
provide for flexible management, to provide for management of the
specific migratory groups, and to optimize the social and economic
benefits of the coastal migratory pelagic fisheries are the most
germane. The Magnuson-Stevens Act provides the legal basis for the
rule.
Amendment 8 will affect most of the 3,819 vessels from Atlantic and
Gulf states (1,722 and 2,097 vessels, respectively) that have permits
to operate in mackerel fisheries in the EEZ. For Atlantic states, 1,093
vessels possess commercial permits, 393 possess charter/headboat
permits, and 236 vessels possess both permits. For Gulf states, 1,266
vessels possess commercial permits, 613 possess charter/headboat
permits, and 218 vessels possess both permits. All of the commercial
fishing and charter/headboat businesses that would be affected by
Amendment 8 are considered small entities for the purposes of the
Regulatory Flexibility Act. There are no data that describe the precise
average or range of operating costs or annual gross revenues. A
substantial number of small entities are expected to be affected for
purposes of the Regulatory Flexibility Act.
The Councils concluded that no single proposed measure in Amendment
8 would significantly affect revenues of the small entities expected to
be impacted by the proposed rule. However, the Councils also concluded
that the cumulative effect of the amendment's 21 proposed management
measures (not including a number of proposed ``no action'' measures)
could change annual revenues in excess of 5 percent. The RIR and
associated IRFA contain an analysis, largely qualitative, of the
economic impacts of the 21 proposed management measures and their
rejected alternatives. Management measures that should result in the
greatest revenue changes for small entities include the moratorium on
new entrants, changes in income qualifications for commercial fishing
permits, and changed commercial trip limits for Atlantic group king
mackerel. Further, the proposed increase in the income requirement for
obtaining a king or Spanish mackerel commercial permit may eliminate as
many as 5 percent of the currently permitted vessels from participation
in the mackerel fisheries. Whether these vessels would cease business
operations entirely is not known, but switching to a higher reliance on
alternative fisheries may significantly reduce their overall incomes
and/or increase their costs of fishing.
The proposed management measures will not create any changed or
increased compliance costs related to reporting and record keeping
other than those resulting from the gear marking requirements. Refer to
the discussion below concerning this rule's collection-of-information
requirements that are subject to approval under the Paperwork Reduction
Act (PRA). However, there will be increased compliance costs associated
with the restrictions on the use of gillnets and the additional marking
requirement for gillnets, each applicable to the harvest of Atlantic
group Spanish mackerel in a portion of the EEZ off the east coast of
Florida. These costs were not formally addressed in the RIR. The
proposal to limit lengths of gillnets used for Spanish mackerel and to
require special buoys marked with the owner's permit number on such
gillnets used in the prescribed area will require small compliance
costs to modify the gear so that it will be legal under the preferred
alternative. Additionally, the management measures to limit the types
of commercial gear in the fishery to a specified number of gear types
will have a compliance cost to the extent that some fishermen may be
currently using non-conforming gear and would have to undergo costs of
switching to an alternative gear. There are no estimates available of
the amount of the compliance costs related to the preferred gear
measures. The operators will not have to acquire new skills to meet the
additional requirements.
There are no existing Federal rules which may duplicate, overlap,
or conflict with the proposed rule.
The Councils considered significant alternatives for most of the
proposed management measures. The rejected alternative for the
moratorium on new entrants was the status quo. It was rejected on the
basis that new entrants would tend to contribute to an increase in
overall effort. The result would be increased costs that would offset
revenue increases expected from stock improvements and subsequent
increases in the commercial quota. The proposed moratorium will result,
based on the October 16, 1995, control date, in some 141 vessel owners
becoming ineligible for renewal of their king mackerel permits. These
individuals will, however, be eligible for new king mackerel permits
through the permit
[[Page 33806]]
transfer measures of Amendment 8 and for Spanish mackerel permits.
Alternatives to the newly proposed permit requirement of a minimum
of 25 percent of gross annual income or at least $10,000 in sales
derived from commercial or for-hire business included the status quo of
a single requirement of 10 percent of income from fishing and other,
more restrictive requirements. The status quo has less of an effect on
small businesses than the proposed alternative because an estimated 145
fishermen will lose their permits with the proposed change. This level
of impact was deemed to be acceptable, because most of the 145 permit
holders who will be disqualified are fishermen who are more correctly
identified as recreational fishermen who sell their catch. The more
restrictive alternatives would have mandated a larger dependence on
fishing as a source of income and would have eliminated an unacceptably
large number of historical commercial fishermen.
No alternatives were considered for the more restrictive trip
limits for Atlantic migratory group king mackerel, with the exception
of an alternative to have more restrictive trip limits in the Florida
Keys. Even though the status quo was not considered, the proposed
regulation would reduce overall revenues by restricting overall catches
relative to the status quo, particularly in the area where a 500 pound
daily limit is proposed. In this area, an estimated 24 percent of
commercial king mackerel revenues will be foregone, with an unknown
effect on the ability of certain fishermen to remain in the fishery.
The Councils considered the negative effect on small business
acceptable because the restriction could potentially lengthen the
season while slowing catch rates and increasing seasonal prices.
Although not mentioned among the proposed measures that would
significantly affect revenues of small entities, the proposal to limit
gear to specified gear types was contrasted with the rejected
alternative of maintaining the status quo. While the status quo would
not entail additional compliance costs (in meeting new allowable gear
specifications) and new gear innovation and development would not be
possible, the Councils rejected the status quo as not offering
resolution of the current enforcement problems in differentiating
between legal and non-legal gear and not providing the opportunity to
develop new, beneficial gears for the Mid-Atlantic and South Atlantic
fisheries.
Other proposed measures include the identification of an additional
problem of localized fishing, a continuation of regulations governing
the at-sea transfer of Spanish mackerel, a rejection of dealer permits
and a moratorium on new charter vessel permits, decisions to make no
major changes in the management for cobia and dolphin, and other
measures largely of a technical nature. Rejected alternatives were
considered for all of these, but since most of the decisions involved
maintaining the status quo, there are only minor effects on small
entities from all these other proposals considered jointly.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall a person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the PRA unless that collection of information displays a currently
valid OMB Control Number.
The proposed rule contains a new collection-of-information
requirement subject to the PRA--namely, the requirement that the float
line of a gillnet used or possessed in the EEZ off Florida north of
25 deg.20.4' N. lat. be marked with distinctive floats bearing the
official number of the vessel using or possessing it. This requirement
has been submitted to OMB for approval. The public reporting burden for
this new collection of information is estimated at 20 minutes per
float.
This rule involves the collection of information on applications
for commercial vessel permits. That collection is currently approved
under OMB Control No. 0648-0205 and its public reporting burden is
estimated at 20 minutes per response. This rule also involves the
collection of information on fishing records of vessels permitted in
the commercial king or Spanish mackerel fisheries. That collection is
currently approved under OMB Control No. 0648-0016 and its public
reporting burden is estimated at 15 minutes per response. Finally, this
rule restates without significant change the collection of information
for the marking of traps, pots, and associated buoys in the Caribbean,
Gulf of Mexico, and South Atlantic EEZ. That collection is currently
approved under OMB Control No. 0648-0305 and its public reporting
burden is estimated at 7 minutes per trap, pot, or buoy. These
reporting burden estimates include the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collections of information.
Public comment is sought regarding: whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information will
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these, or any other aspects of the collection of information, to NMFS
and OMB (see ADDRESSES).
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
Dated: June 17, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Services.
For the reasons set out in the preamble, 50 CFR part 622 is
proposed to be amended as follows:
PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC
1. The authority citation for part 622 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 622.1, footnote 2 to Table 1 is revised to read as
follows:
Sec. 622.1 Purpose and scope.
* * * * *
Table 1.--FMPs Implemented Under Part 622
* * * * * * *
2 Only king and Spanish mackerel and cobia are managed
under the FMP in the Mid-Atlantic.
* * * * * * *
3. In Sec. 622.2, in the definition of ``Dealer'', the reference
``Sec. 600.15'' is revised to read ``Sec. 600.10''; definitions of
``Automatic reel'', ``Bandit gear'', ``Handline'', ``Hook-and-line
gear'', ``Long gillnet'', ``Longline'', ``Rod and reel'', ``Stab net'',
and ``Trammel net'' are added in alphabetical order; and the
definitions of ``Charter vessel'' and ``Run-around gillnet'' are
revised to read as follows:
Sec. 622.2 Definitions.
* * * * *
Automatic reel means a reel that remains attached to a vessel when
in use from which a line and attached hook(s) are deployed. The line is
payed out from and retrieved on the reel electrically or hydraulically.
Bandit gear means a rod and reel that remain attached to a vessel
when in use
[[Page 33807]]
from which a line and attached hook(s) are deployed. The line is payed
out from and retrieved on the reel manually, electrically, or
hydraulically.
* * * * *
Charter vessel means a vessel less than 100 gross tons (90.8 mt)
that meets the requirements of the USCG to carry six or fewer
passengers for hire and that engages in charter fishing at any time
during the calendar year. A charter vessel with a commercial permit, as
required under Sec. 622.4(a)(2), is considered to be operating as a
charter vessel when it carries a passenger who pays a fee or when there
are more than three persons aboard, including operator and crew.
* * * * *
Handline means a line with attached hook(s) that is tended directly
by hand.
* * * * *
Hook-and-line gear means automatic reel, bandit gear, buoy gear,
handline, longline, and rod and reel.
* * * * *
Long gillnet means a gillnet that has a float line that is more
than 1,000 yd (914 m) in length.
Longline means a line that is deployed horizontally to which
gangions and hooks are attached. A longline may be a bottom longline,
i.e., designed for use on the bottom, or a pelagic longline, i.e.,
designed for use off the bottom. The longline hauler may be manually,
electrically, or hydraulically operated.
* * * * *
Rod and reel means a rod and reel unit that is not attached to a
vessel, or, if attached, is readily removable, from which a line and
attached hook(s) are deployed. The line is payed out from and retrieved
on the reel manually, electrically, or hydraulically.
Run-around gillnet means a gillnet, other than a long gillnet,
that, when used, encloses an area of water.
* * * * *
Stab net means a gillnet, other than a long gillnet, or trammel net
whose weight line sinks to the bottom and submerges the float line.
* * * * *
Trammel net means two or more panels of netting, suspended
vertically in the water by a common float line and a common weight
line, with one panel having a larger mesh size than the other(s), to
entrap fish in a pocket of netting.
* * * * *
4. In Sec. 622.4, in paragraph (d), the reference
``Sec. 622.6(b)(1)(i)'' is revised to read ``Sec. 622.6(b)(1)(i)(B)'';
paragraphs (a)(2)(iv) through (vi) and (g) are revised; and paragraphs
(a)(2)(iii) and (q) are added to read as follows:
Sec. 622.4 Permits and fees.
(a) * * *
(2) * * *
(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 valid through the end of the month that is 13
months after the date of publication of the final rule that contains
this paragraph (a)(2)(iii), at least 10 percent of the applicant's
earned income must have been derived from commercial fishing (i.e.,
harvest and first sale of fish) during one of the 3 calendar years
preceding the application. To obtain or renew a commercial vessel
permit for king mackerel valid after the end of the month that is 13
months after the date of publication of the final rule that contains
this paragraph (a)(2)(iii), 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 3 calendar years preceding the
application. See paragraph (q) of this section regarding a moratorium
on commercial vessel permits for king mackerel, initial permits under
the moratorium, transfers of permits during the moratorium, and limited
exceptions to the earned income or gross sales requirement for a
permit.
(iv) Spanish mackerel. For a person aboard a vessel to be eligible
for exemption from the bag limits and to fish under a quota for Spanish
mackerel in or from the Gulf, Mid-Atlantic, or South Atlantic EEZ, a
commercial vessel permit for Spanish mackerel must have been issued to
the vessel and must be on board. To obtain or renew a commercial vessel
permit for Spanish mackerel valid through the end of the month that is
13 months after the date of publication of the final rule that contains
this paragraph (a)(2)(iv), at least 10 percent of the applicant's
earned income must have been derived from commercial fishing (i.e.,
harvest and first sale of fish) during one of the 3 calendar years
preceding the application. To obtain or renew a commercial vessel
permit for Spanish mackerel valid after the end of the month that is 13
months after the date of publication of the final rule that contains
this paragraph (a)(2)(iv), 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 3 calendar years preceding the
application.
(v) Gulf reef fish. For a person aboard a vessel to be eligible for
exemption from the bag limits, to fish under a quota, or to sell Gulf
reef fish in or from the Gulf EEZ, a commercial vessel permit for Gulf
reef fish must have been issued to the vessel and must be on board. To
obtain or renew a commercial vessel permit for Gulf reef fish, more
than 50 percent of the applicant's earned income must have been derived
from commercial fishing (i.e., harvest and first sale of fish) or from
charter fishing during either of the 2 calendar years preceding the
application. See paragraph (m) of this section regarding a moratorium
on commercial vessel permits for Gulf reef fish and limited exceptions
to the earned income requirement for a permit.
(vi) South Atlantic snapper-grouper. For a person aboard a vessel
to be eligible for exemption from the bag limits for South Atlantic
snapper-grouper in or from the South Atlantic EEZ, to engage in the
directed fishery for tilefish in the South Atlantic EEZ, to use a
longline to fish for South Atlantic snapper-grouper in the South
Atlantic EEZ, or to use a sea bass pot in the South Atlantic EEZ
between 35 deg.15.3' N. lat. (due east of Cape Hatteras Light, NC) and
28 deg.35.1' N. lat. (due east of the NASA Vehicle Assembly Building,
Cape Canaveral, FL), a commercial vessel permit for South Atlantic
snapper-grouper must have been issued to the vessel and must be on
board. A vessel with longline gear and more than 200 lb (90.7
kilograms) of tilefish on board is considered to be in the directed
fishery for tilefish. It is a rebuttable presumption that a fishing
vessel with more than 200 lb of tilefish on board harvested such
tilefish in the EEZ. To obtain or renew a commercial vessel permit for
South Atlantic snapper-grouper, more than 50 percent of the applicant's
earned income must have been derived from commercial fishing (i.e.,
harvest and first sale of fish) or from charter fishing, or gross sales
of fish harvested from the owner's, operator's, corporation's, or
partnership's vessels must have been greater than $20,000, during one
of the 3 calendar years preceding the application.
* * * * *
(g) Transfer. A vessel permit or endorsement or dealer permit
issued under this section is not transferable or assignable, except as
provided in
[[Page 33808]]
paragraph (m) of this section for a commercial vessel permit for Gulf
reef fish, paragraph (n) of this section for a fish trap endorsement,
paragraph (p) of this section for a red snapper endorsement, or
paragraph (q) of this section for a king mackerel permit. A person who
acquires a vessel, transferred permit or endorsement, or dealership who
desires to conduct activities for which a permit or endorsement is
required must apply for a permit 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.
* * * * *
(q) Moratorium on commercial vessel permits for king mackerel. This
paragraph (q) is effective through October 15, 2000.
(1) Effective on the date of publication of the final rule that
contains this paragraph (q)(1), an initial commercial vessel permit for
king mackerel will be issued only if the vessel owner was the owner of
a vessel with a commercial vessel permit for king mackerel on or before
October 16, 1995. A king mackerel permit for a vessel whose owner does
not meet this moratorium criterion may be renewed only through the end
of the month that is 13 months after the date of publication of the
final rule that contains this paragraph (q)(1).
(2) To obtain a commercial vessel permit for king mackerel under
the moratorium, an owner or operator of a vessel that does not have a
king mackerel permit on the date of publication of the final rule that
contains this paragraph (q)(2) must submit an application to the RD
postmarked or hand delivered not later than 90 days after the date of
publication of the final rule that contains this paragraph (q)(2).
Other than applications for renewals of commercial vessel permits for
king mackerel, no applications for commercial vessel permits for king
mackerel will be accepted after the date that is 90 days after the date
of publication of the final rule that contains this paragraph (q)(2).
Application forms are available from the RD.
(3) An owner will not be issued initial commercial vessel permits
for king mackerel under the moratorium in numbers exceeding the number
of vessels permitted in the king mackerel fishery that he/she owned
simultaneously on or before October 16, 1995. If a vessel with a
commercial vessel permit for king mackerel on or before October 16,
1995, has been sold since that date, the owner on or before that date
retains the right to the commercial vessel permit for king mackerel
unless there is a written agreement that such right transfers to the
new owner.
(4) An owner of a permitted vessel may transfer the commercial
vessel permit for king mackerel issued under this moratorium to another
vessel owned by the same entity.
(5) An owner whose percentage of earned income or gross sales
qualified for the commercial vessel permit for king mackerel issued
under the moratorium may 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.
(6) 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 transfer the permit to the
income-qualifying operator when such operator becomes an owner of a
vessel.
(7) 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 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 RD with an application for the changed permit.
(8) A commercial vessel permit for king mackerel 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 RD within 1 year of the expiration date of the permit.
5. In Sec. 622.5, paragraph (a)(1)(i) is revised to read as
follows:
Sec. 622.5 Recordkeeping and reporting.
* * * * *
(a) * * *
(1) * * *
(i) Coastal migratory pelagic fish. The owner or operator of a
vessel that fishes for or lands coastal migratory pelagic fish for sale
in or from the Gulf, Mid-Atlantic, or South Atlantic EEZ or adjoining
state waters, or whose vessel is issued a commercial permit for king or
Spanish mackerel, as required under Sec. 622.4(a)(2)(iii) or (iv), who
is selected to report by the SRD, must maintain a fishing record on a
form available from the SRD and must submit such record as specified in
paragraph (a)(2) of this section.
* * * * *
6. In Sec. 622.6, paragraphs (c) and (d) are removed and paragraph
(b) is revised to read as follows:
Sec. 622.6 Vessel and gear identification.
* * * * *
(b) Gear identification--(1) Traps/pots and associated buoys--(i)
Traps or pots--(A) Caribbean EEZ. A fish trap or spiny lobster trap
used or possessed in the Caribbean EEZ must display the official number
specified for the vessel by Puerto Rico or the U.S. Virgin Islands so
as to be easily identified.
(B) Gulf and South Atlantic EEZ. A fish trap used or possessed in
the Gulf EEZ and a sea bass pot used or possessed in the South Atlantic
EEZ between 35 deg.15.3' N. lat. (due east of Cape Hatteras Light, NC)
and 28 deg.35.1' N. lat. (due east of the NASA Vehicle Assembly
Building, Cape Canaveral, FL), or a fish trap or sea bass pot on board
a vessel with a commercial permit for Gulf reef fish or South Atlantic
snapper-grouper, must have a valid identification tag issued by the RD
attached. A golden crab trap used or possessed in the South Atlantic
EEZ or on board a vessel with a commercial permit for golden crab must
have the commercial vessel permit number permanently affixed so as to
be easily distinguished, located, and identified; an identification tag
issued by the RD may be used for this purpose but is not required.
(ii) Associated buoys. A buoy that is attached to a trap or pot
must display the assigned number and color code so as to be easily
distinguished, located, and identified as follows:
[[Page 33809]]
(A) Caribbean EEZ. Each buoy must display the official number and
color code specified for the vessel by Puerto Rico or the U.S. Virgin
Islands, whichever is applicable.
(B) Gulf and South Atlantic EEZ. Each buoy must display the number
and color code assigned by the RD. In the Gulf EEZ, a buoy must be
attached to each trap, or each end trap if traps are connected by a
line. In the South Atlantic EEZ, buoys are not required to be used,
but, if used, each buoy must display the number and color code.
However, no color code is required on a buoy attached to a golden crab
trap.
(iii) Presumption of ownership. A Caribbean spiny lobster trap, a
fish trap, a golden crab trap, or a sea bass pot in the EEZ will be
presumed to be the property of the most recently documented owner. This
presumption will not apply with respect to such traps and pots that are
lost or sold if the owner reports the loss or sale within 15 days to
the RD.
(iv) Unmarked traps, pots, or buoys. An unmarked Caribbean spiny
lobster trap, a fish trap, a golden crab trap, a sea bass pot, or a
buoy deployed in the EEZ where such trap, pot, or buoy is required to
be marked is illegal and may be disposed of in any appropriate manner
by the Assistant Administrator or an authorized officer.
(2) Gillnet buoys. On board a vessel with a valid Spanish mackerel
permit that is fishing for Spanish mackerel in, or that possesses
Spanish mackerel in or from, the South Atlantic EEZ off Florida north
of 25 deg.20.4' N. lat., which is a line directly east from the Dade/
Monroe County, FL, boundary, the float line of each gillnet possessed,
including any net in use, must have a maximum of nine distinctive
floats, i.e., different from the usual net buoys, spaced uniformly at a
distance of 100 yd (91.44 m) or less. Each such distinctive float must
bear the official number of the vessel.
Sec. 622.31 [Amended]
7. In Sec. 622.31, paragraph (d) is removed and paragraphs (e)
through (k) are redesignated as paragraphs (d) through (j)
respectively.
8. In Sec. 622.32, paragraph (c)(1) is revised to read as follows:
Sec. 622.32 Prohibited and limited-harvest species.
* * * * *
(c) * * *
(1) Cobia. No person may possess more than two cobia per day in or
from the Gulf, Mid-Atlantic, or South Atlantic EEZ, regardless of the
number of trips or duration of a trip.
* * * * *
Sec. 622.34 [Amended]
9. In Sec. 622.34, in the last sentence of paragraph (c), the
phrase ``and shown in Figures 1 and 2'' is removed and in paragraph (g)
introductory text, the phrase ``and shown in Figures 3 and 4'' is
removed.
10. In Sec. 622.35, paragraph (e)(2)(i) is revised to read as
follows:
Sec. 622.35 South Atlantic EEZ seasonal and/or area closures.
* * * * *
(e) * * *
(2) * * *
(i) In SMZs specified in paragraphs (e)(1)(i) through (xviii) and
(e)(1)(xxii) through (xxix) of this section, the use of a gillnet or a
trawl is prohibited, and fishing may be conducted only with handline,
rod and reel, and spearfishing gear.
* * * * *
11. In Sec. 622.37, paragraph (c)(1) is revised to read as follows:
Sec. 622.37 Minimum sizes.
* * * * *
(c) * * *
(1) Cobia in the Gulf, Mid-Atlantic, or South Atlantic--33 inches
(83.8 cm), fork length.
* * * * *
12. In Sec. 622.38, paragraph (a) is revised and paragraph (h) is
added to read as follows:
Sec. 622.38 Landing fish intact.
* * * * *
(a) The following must be maintained with head and fins intact:
Cobia, king mackerel, and Spanish mackerel in or from the Gulf, Mid-
Atlantic, or South Atlantic EEZ, except as specified for king mackerel
in paragraph (g) of this section; South Atlantic snapper-grouper in or
from the South Atlantic EEZ; yellowtail snapper in or from the
Caribbean EEZ; and finfish in or from the Gulf EEZ, except as specified
in paragraphs (c), (d), and (e) of this section. Such fish may be
eviscerated, gilled, and scaled, but must otherwise be maintained in a
whole condition.
* * * * *
(h) A maximum of five cut-off (damaged) king mackerel may be
possessed in the Gulf, Mid-Atlantic, or South Atlantic EEZ on, and
offloaded ashore from, a vessel that is operating under a trip limit
for king mackerel specified in Sec. 622.44(a). Such cut-off (damaged)
king mackerel are not counted against the trip limit and may not be
sold or purchased.
13. In Sec. 622.40, the first sentence of paragraph (b)(3)(i)
introductory text is revised to read as follows:
Sec. 622.40 Limitation on traps and pots.
* * * * *
(b) * * *
(3) * * *
(i) A sea bass pot that is used or possessed in the South Atlantic
EEZ between 35 deg.15.3' N. lat. (due east of Cape Hatteras Light, NC)
and 28 deg.35.1' N. lat. (due east of the NASA Vehicle Assembly
Building, Cape Canaveral, FL) is required to have on at least one side,
excluding top and bottom, a panel or door with an opening equal to or
larger than the interior end of the trap's throat (funnel). * * *
* * * * *
14. In Sec. 622.41, paragraphs (c), (d)(1), and (d)(3) are revised
to read as follows:
Sec. 622.41 Species-specific limitations.
* * * * *
(c) Coastal migratory pelagic fish--(1) Authorized gear. Subject to
the prohibitions on gear/methods specified in Sec. 622.31, the
following are the only fishing gears that may be used in the Gulf, Mid-
Atlantic, and South Atlantic EEZ in directed fisheries for coastal
migratory pelagic fish:
(i) King mackerel, Atlantic migratory group--
(A) North of 34 deg.37.3' N. lat., the latitude of Cape Lookout
Light, NC--all gear except a long gillnet.
(B) South of 34 deg.37.3' N. lat.--automatic reel, bandit gear,
handline, and rod and reel.
(ii) King mackerel, Gulf migratory group--hook-and-line gear and
run-around gillnet.
(iii) Spanish mackerel, Atlantic migratory group--
(A) North of 34 deg.37.3' N. lat., the latitude of Cape Lookout
Light, NC--automatic reel, bandit gear, handline, rod and reel, cast
net, run-around gillnet, stab net, and drift gillnet.
(B) South of 34 deg.37.3' N. lat.--automatic reel, bandit gear,
handline, rod and reel, cast net, run-around gillnet, and stab net.
(iv) Spanish mackerel, Gulf migratory group--all gear except long
gillnet, drift gillnet, and purse seine.
(v) Cobia in the Mid-Atlantic and South Atlantic EEZ, dolphin in
the South Atlantic EEZ, and little tunny in the South Atlantic EEZ
south of 34 deg.37.3' N. lat.--automatic reel, bandit gear, handline,
rod and reel, and pelagic longline.
(vi) Cero in the South Atlantic EEZ and little tunny in the South
Atlantic EEZ north of 34 deg.37.3' N. lat.--all gear except a long
gillnet.
[[Page 33810]]
(vii) Bluefish, cero, cobia, dolphin, and little tunny in the Gulf
EEZ--all gear except a long gillnet.
(2) Unauthorized gear. The following possession limitations apply
when fishing gears other than those specified in paragraph (c)(1) of
this section are on board:
(i) Long gillnets. A vessel with a long gillnet on board in, or
that has fished on a trip in, the Gulf, Mid-Atlantic, or South Atlantic
EEZ may not have on board on that trip a coastal migratory pelagic
fish.
(ii) Drift gillnets. A vessel with a drift gillnet on board in, or
that has fished on a trip in, the Gulf EEZ may not have on board on
that trip a king or Spanish mackerel.
(iii) Other unauthorized gear. Except as specified in paragraphs
(c)(2)(iv) of this section, a vessel with other unauthorized gear on
board in, or that has fished in, the EEZ where such gear is not
authorized in paragraph (c)(1) of this section is limited to the bag
limit for king and Spanish mackerel specified in Sec. 622.39(c)(1)(ii)
and to the limit on cobia specified in Sec. 622.32(c)(1).
(iv) Exception for king mackerel in the Gulf EEZ. Paragraph
(c)(2)(iii) of this section notwithstanding, a vessel in or from the
Gulf EEZ that has a valid commercial permit for king mackerel is not
limited on a trip to the bag limit for king mackerel when it has on
board on that trip other unauthorized gear. Thus, with respect to king
mackerel in or from the Gulf EEZ, a vessel that has a commercial permit
for king mackerel may use no unauthorized gear in a directed fishery
for king mackerel. If such a vessel has a long gillnet or a drift
gillnet on board, no king mackerel may be possessed. If such a vessel
has other unauthorized gear on board, the possession of king mackerel
taken incidentally is not restricted. See also paragraph (c)(4) of this
section regarding the purse seine incidental catch allowance of king
mackerel.
(3) Gillnets--(i) King mackerel. The minimum allowable mesh size
for a gillnet used to fish in the Gulf, Mid-Atlantic, or South Atlantic
EEZ for king mackerel is 4.75 inches (12.1 cm), stretched mesh. A
vessel in such EEZ, or having fished on a trip in such EEZ, with a
gillnet on board that has a mesh size less than 4.75 inches (12.1 cm),
stretched mesh, may not possess on that trip an incidental catch of
king mackerel that exceeds 10 percent, by number, of the total lawfully
possessed Spanish mackerel on board.
(ii) Spanish mackerel. (A) The minimum allowable mesh size for a
gillnet used to fish in the Gulf, Mid-Atlantic, or South Atlantic EEZ
for Spanish mackerel is 3.5 inches (8.9 cm), stretched mesh. A vessel
in such EEZ, or having fished on a trip in such EEZ, with a gillnet on
board that has a mesh size less than 3.5 inches (8.9 cm), stretched
mesh, may not possess on that trip any Spanish mackerel.
(B) On board a vessel with a valid Spanish mackerel permit that is
fishing for Spanish mackerel in, or that possesses Spanish mackerel in
or from, the South Atlantic EEZ off Florida north of 25 deg.20.4' N.
lat., which is a line directly east from the Dade/Monroe County, FL,
boundary--
(1) No person may fish with, set, place in the water, or have on
board a gillnet with a float line longer than 800 yd (732 m).
(2) No person may fish with, set, or place in the water more than
one gillnet at any one time.
(3) No more than two gillnets, including any net in use, may be
possessed at any one time; provided, however, that if two gillnets,
including any net in use, are possessed at any one time, they must have
stretched mesh sizes that differ by at least .25 inch (.64 cm).
(4) No person may soak a gillnet for more than 1 hour. The soak
period begins when the first mesh is placed in the water and ends
either when the first mesh is retrieved back on board the vessel or the
gathering of the gillnet is begun to facilitate retrieval on board the
vessel, whichever occurs first; providing that, once the first mesh is
retrieved or the gathering is begun, the retrieval is continuous until
the gillnet is completely removed from the water.
(5) The float line of each gillnet possessed, including any net in
use, must have the distinctive floats specified in Sec. 622.6(b)(2).
(4) Purse seine incidental catch allowance. A vessel in the EEZ, or
having fished in the EEZ, with a purse seine on board will not be
considered as fishing, or having fished, for king or Spanish mackerel
in violation of a prohibition of purse seines under paragraph (c)(2) of
this section, in violation of the possession limits under paragraph
(c)(2)(iii) of this section, or, in the case of king mackerel from the
Atlantic migratory group, in violation of a closure effected in
accordance with Sec. 622.43(a), provided the king mackerel on board
does not exceed 1 percent, or the Spanish mackerel on board does not
exceed 10 percent, of all fish on board the vessel. Incidental catch
will be calculated by number and/or weight of fish. Neither calculation
may exceed the allowable percentage. Incidentally caught king or
Spanish mackerel are counted toward the quotas provided for under
Sec. 622.42(c) and are subject to the prohibition of sale under
Sec. 622.43(a)(3)(iii).
(d) * * *
(1) Authorized gear. Subject to the gear restrictions specified in
Sec. 622.31, the following are the only gear types authorized in
directed fishing for snapper-grouper in the South Atlantic EEZ: Bandit
gear, bottom longline, buoy gear, handline, rod and reel, sea bass pot,
and spearfishing gear.
* * * * *
(3) Use of sink nets off North Carolina. A vessel that has on board
a commercial permit for South Atlantic snapper-grouper, excluding
wreckfish, that fishes in the EEZ off North Carolina on a trip with a
sink net on board, may retain otherwise legal South Atlantic snapper-
grouper taken on that trip with bandit gear, buoy gear, handline, rod
and reel, or sea bass pot. For the purpose of this paragraph (d)(3), a
sink net is a gillnet with stretched mesh measurements of 3 to 4.75
inches (7.6 to 12.1 cm) that is attached to the vessel when deployed.
* * * * *
15. In Sec. 622.42, the first sentence of paragraph (c)
introductory text is revised to read as follows:
Sec. 622.42 Quotas.
* * * * *
(c) * * * King and Spanish mackerel quotas apply to persons who
fish under commercial vessel permits for king or Spanish mackerel, as
required under Sec. 622.4(a)(2)(iii) or (iv). * * *
* * * * *
16. In Sec. 622.43, paragraph (a)(3)(i) and (ii) are revised and
paragraph (c) is added to read as follows:
Sec. 622.43 Closures.
(a) * * *
(3) * * *
(i) A person aboard a vessel for which a commercial permit for king
or Spanish mackerel has been issued, as required under
Sec. 622.4(a)(2)(iii) or (iv), may not fish for king or Spanish
mackerel in the EEZ or retain fish in or from the EEZ under a bag or
possession limit specified in Sec. 622.39(c) for the closed species,
migratory group, zone, subzone, or gear, except as provided for under
paragraph (a)(3)(ii) of this section.
(ii) A person aboard a vessel for which the permit indicates both
charter vessel/headboat for coastal migratory pelagic fish and
commercial king or Spanish mackerel may continue to retain fish under a
bag and possession limit specified in Sec. 622.39(c), provided the
vessel is operating as a charter vessel or headboat.
* * * * *
[[Page 33811]]
(c) Reopening. When a fishery has been closed based on a projection
of the quota specified in Sec. 622.42 being reached and subsequent data
indicate that the quota was not reached, the Assistant Administrator
may file a notification to that effect with the Office of the Federal
Register. Such notification may reopen the fishery to provide an
opportunity for the quota to be reached.
17. In Sec. 622.44, paragraphs (a)(2)(i) introductory text and
(a)(2)(ii)(B) introductory text are revised to read as follows:
Sec. 622.44 Commercial trip limits.
* * * * *
(a) * * *
(2) * * *
(i) Florida east coast subzone. In the Florida east coast subzone,
king mackerel in or from the EEZ may be possessed on board or landed
from a vessel for which a commercial permit for king mackerel has been
issued, as required under Sec. 622.4(a)(2)(iii)--
* * * * *
(ii) * * *
(B) Hook-and-line gear. In the Florida west coast subzone, king
mackerel in or from the EEZ may be possessed on board or landed from a
vessel with a commercial permit for king mackerel, as required by
Sec. 622.4(a)(2)(iii), and operating under the hook-and-line gear quota
in Sec. 622.42(c)(1)(i)(A)(2)(i):
* * * * *
18. In Sec. 622.45, in paragraph (d)(2), the reference
``Sec. 622.4(a)(2)(iv)'' is revised to read ``Sec. 622.4(a)(2)(vi)''
and paragraph (h) is added to read as follows:
Sec. 622.45 Restrictions on sale/purchase.
* * * * *
(h) Cut-off (damaged) king mackerel. A cut-off (damaged) king
mackerel lawfully possessed or offloaded ashore, as specified in
Sec. 622.38(g), may not be sold or purchased.
19. In Sec. 622.48, in paragraph (d)(1), the phrase ``reopening of
a fishery prematurely closed'' is removed, and paragraph (c) is revised
to read as follows:
Sec. 622.48 Adjustment of management measures.
* * * * *
(c) Coastal migratory pelagic fish. For cobia or for a migratory
group of king or Spanish mackerel: MSY, overfishing level, TAC, quota
(including a quota of zero), bag limit (including a bag limit of zero),
minimum size limit, vessel trip limits, closed seasons or areas, gear
restrictions (ranging from regulation to complete prohibition),
reallocation of the commercial/recreational allocation of Atlantic
group Spanish mackerel, and permit requirements.
* * * * *
Secs. 622.4 and 622.44 [Amended]
20. The words ``and Spanish'' are removed in the following places:
(a) In Sec. 622.4, in the first sentence of paragraph (a)(2)(ii),
in the heading of paragraph (o), in the first sentence of paragraph
(o)(1), and in the second and third sentences of paragraph (o)(2).
(b) In Sec. 622.44, in paragraph (a)(2)(ii)(A)(2)(i).
Sec. 622.44 [Amended]
21. The words ``king and'' are removed in Sec. 622.44(b)(1)(i) and
(b)(1)(ii) introductory text.
[FR Doc. 97-16360 Filed 6-20-97; 8:45 am]
BILLING CODE 3510-22-F
