[Federal Register Volume 76, Number 83 (Friday, April 29, 2011)]
[Rules and Regulations]
[Pages 23907-23909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10446]
[[Page 23907]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 0907151138-1235-03]
RIN 0648-AY03
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Queen Conch Fishery of Puerto Rico and the U.S. Virgin Islands; Queen
Conch Management Measures
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule implements measures to address overfishing of
Caribbean queen conch in the U.S. Caribbean. This rule extends the
queen conch seasonal closure from 3 months to 5 months, and prohibits
fishing for and possession of queen conch in or from the Caribbean
exclusive economic zone (EEZ) east of 64[deg]34' W. longitude, which
includes Lang Bank east of St. Croix, U.S. Virgin Islands (USVI), when
harvest and possession of queen conch is prohibited in St. Croix
territorial waters as a result of a territorial quota closure. The
intended effects of this final rule are to prevent additional fishing
pressure on queen conch in the U.S. Caribbean, and to improve
enforcement of regulations affecting the queen conch resource by
improving compatibility among Federal and territorial regulations.
DATES: This rule is effective May 31, 2011.
ADDRESSES: Copies of the regulatory amendment, which includes an
Environmental Assessment (EA), and the final regulatory flexibility
analysis (FRFA) may be obtained from Britni Tokotch, Southeast Regional
Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701 or may be
downloaded from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Britni Tokotch, 727-824-5305.
SUPPLEMENTARY INFORMATION: The Caribbean queen conch fishery is managed
under the Fishery Management Plan for Queen Conch Resources of Puerto
Rico and the USVI (FMP). The FMP was prepared by the Caribbean Fishery
Management Council (Council), and is implemented through regulations at
50 CFR part 622 under the authority of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act).
This final rule extends the current 3-month (July 1 through
September 30) closure in Federal waters in the area east of 64[deg]34'
W. longitude, which includes Lang Bank east of St. Croix, USVI (Lang
Bank), to a 5-month closure, from June 1 through October 31 each year.
This final rule also implements a compatible queen conch harvest quota
closure for Federal waters. Under this rule, when the USVI closes
territorial waters off St. Croix to the harvest and possession of queen
conch, NMFS will concurrently close the queen conch harvest in Lang
Bank. NMFS will notify the public of the closure by filing a notice
with the Office of the Federal Register. During the closure, fishing
for or possession of Caribbean queen conch on board a fishing vessel,
in or from Lang Bank is prohibited. Closure of Lang Bank is in effect
until the next fishing season for territorial waters opens November 1,
each year.
Comments and Responses
The following is a summary of the comments NMFS received on the
proposed rule and the queen conch regulatory amendment, and NMFS'
respective responses. During the comment period, NMFS received four
comments on the proposed rule. The submissions included one letter from
a Federal agency, which was in agreement with the actions in this
proposed rule. The remaining submissions were unique letters from
individuals, one of which is unrelated to the actions contained in the
regulatory amendment and, therefore, is not addressed; the other two
comments are addressed below.
Comment 1: One commenter questioned why a 4-month seasonal closure
was not considered as an alternative to the existing 3-month closure
and the proposed 5-month closure.
Response: The intent of the regulatory amendment and this proposed
rule is to establish consistent regulations between the USVI and U.S.
Federal waters. The USVI territorial government requested the Council
and NMFS implement compatible regulations, including a compatible
seasonal closure and a compatible quota closure, to simplify
enforcement efforts. The lack of compatible regulations makes
enforcement difficult, which inhibits resource protection. A 4-month
closure was not considered because it would not be consistent with USVI
regulations, and would not alleviate the concerns about enforcement
that prompted this action.
Comment 2: One commenter expressed concern regarding Federal
consistency with the 50,000-lb (28,680-kg) quota set by the USVI.
Specifically, the commenter expressed concern regarding the possibility
the USVI territorial government could increase the queen conch quota in
the future.
Response: The queen conch regulatory amendment and this proposed
rule do not address a Federal quota for queen conch. This proposed rule
recognizes the quota already established by the USVI. The intent of
this proposed rule is to establish consistency between Federal
regulations and those already established by the USVI territorial
government to prevent additional fishing pressure when the USVI quota
is met and to enhance enforcement efforts.
In Amendment 2 to the Fishery Management Plan for Queen Resources
of Puerto Rico and the USVI and Amendment 5 to the Reef Fish Fishery
Management Plan of Puerto Rico and the USVI (2010 Caribbean ACL
Amendment), the Council is considering actions that establish annual
catch limits (ACLs) and accountability measures (AMs) to ensure the
ACLs are not exceeded. The Council's preferred alternative is to set
the ACL for queen conch at 50,000 lb (28,680 kg). Once the ACL is
reached or projected to be reached, Lang Bank would be closed to the
harvest and possession of queen conch. The 2010 Caribbean ACL Amendment
is expected to be implemented in the near future. When this amendment
is implemented, the ACLs and AMs will apply even if the USVI
territorial government increases the territorial quota in the future.
Classification
The Regional Administrator, Southeast Region, NMFS, determined that
the regulatory amendment is necessary for the conservation and
management of the queen conch fishery and that it is consistent with
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 an FRFA, as required by section 604 of the Regulatory
Flexibility Act. The FRFA describes the economic impact this final rule
is expected to have on small entities. A description of the action
implemented through this final rule, the need for and objectives of
this final rule, and the legal basis for this final rule are contained
in the preamble of the proposed rule, and are not repeated here. A copy
of this analysis is available from the Council
[[Page 23908]]
(see ADDRESSES). A summary of the analysis follows.
No significant issues associated with the economic analysis
contained in the proposed rule were raised through public comment. A
summary of the comments received is provided in the previous section of
this preamble. No changes were made in this final rule as a result of
these comments.
No duplicative, overlapping, or conflicting Federal rules have been
identified. Additionally, this final rule would not establish any new
reporting, recordkeeping, or other compliance requirements.
This final rule will directly apply to and may directly affect
commercial fishermen and for-hire vessels in St. Croix that harvest
queen conch. The Small Business Administration (SBA) has established
size criteria for all major industry sectors in the U.S., including
commercial fish harvesters and for-hire operations. A business involved
in fish harvesting is classified as a small business if it is
independently owned and operated, is not dominant in its field of
operation (including its affiliates), and has combined annual receipts
not in excess of $4.0 million (NAICS code 114111, finfish fishing) for
all its affiliated operations worldwide. For for-hire vessels, the
other qualifiers apply and the revenues threshold is $7.0 million
(NAICS code 713990, recreational industries).
All commercial fishermen who may be affected by this final rule are
determined, for the purpose of this analysis, to be small entities.
Federal permits are not required to fish in the U.S. Caribbean. The
USVI, however, requires a commercial fishing permit to harvest marine
species for commercial purposes. In 2008, there were 383 permitted
fishermen in the USVI, of which 223 were in St. Croix and 160 were in
St. Thomas and St. John. The ex-vessel value of total harvests by USVI
fishermen in 2008 was approximately $8.8 million, or approximately
$23,000 per fisherman. This estimate is substantially lower than the
SBA small entity threshold. Comparable values for St. Croix fishermen
are not available. However, if all revenues from marine species for the
USVI are attributed to St. Croix fishermen, the appropriate average
revenue per entity would be only approximately $39,000. Even this
value, as an extreme upper bound for average revenues for St. Croix
fishermen, is significantly lower than the SBA threshold.
The number of for-hire dive operations in the USVI is unknown.
However, 27 for-hire vessels were identified in the USVI in 2000.
Information on the economic profile of these vessels is not available.
However, for-hire vessels have been determined to be small business
entities in all Federal fishery-related regulatory actions to date in
the Gulf of Mexico and South Atlantic. Therefore, all for-hire
businesses that may be affected by this final rule are determined, for
the purpose of this analysis, to be small business entities.
It is unknown whether this final rule will have any direct adverse
economic effects on any small entities. Available queen conch harvest
data do not distinguish between queen conch harvested from territorial
waters and from Lang Bank. Incompatible Federal and St. Croix
territorial water seasonal closures only began in 2008, and the first
quota closure of St. Croix territorial waters occurred in 2009. It is
unknown whether landings originating from Lang Bank continued after
closure of the territorial waters in these years, or whether the
territorial closure resulted in fishermen ceasing harvest activity in
Lang Bank. If the territorial possession prohibition resulted in
fishermen stopping all harvest activity, including activity that
historically occurred in the Lang Bank, then this final rule will not
have any direct effect on harvest activity or associated revenues from
Lang Bank, because no such harvest activity would be expected to
continue to occur. As a result, the only direct effect of this action
on fishery participants will be the benefits of regulatory simplicity.
If, however, queen conch has traditionally continued to be
harvested in Lang Bank during the period when the territorial waters
closed, this final rule will result in a reduction in the revenues
associated with these harvests. As previously stated, available data do
not allow quantification of any harvests from Lang Bank that may be
affected. In general, however, because queen conch are distributed in
habitats where water depth is less than 100 fathoms (183 m), and the
majority of the benthos at that depth around St. Croix is located in
territorial waters, it is assumed that the majority of queen conch in
the USVI are harvested from territorial waters. As a result, any
reduction in harvests, and associated revenues, from Lang Bank that
might occur as a result of compatible closures is expected to be
minimal.
Because of the absence of location-specific harvest data and the
inability to assess with certainty the economic effects of compatible
quota and seasonal closures, public comment on the economic analysis
was solicited in the proposed rule. No comments on the economic
analysis were received and, as a result, no information was provided to
either confirm or refute the conclusion in the economic analysis that
any reduction in revenues as a result of compatible closures would be
minimal.
Only one alternative to the proposed rule was considered. This
alternative, the no action alternative (status quo), would not
implement compatible closures and would not achieve the Council's
objectives. Therefore, NMFS did not adopt this alternative.
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 an FRFA, the agency shall
publish one or more guides to assist small entities in complying with
the rule, and shall designate such publications as ``small entity
compliance guides.'' As part of the rulemaking process, NMFS prepared a
fishery bulletin, which also serves as a small entity compliance guide.
The fishery bulletin will be distributed to interested parties in the
Caribbean.
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
Dated: April 26, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 622 is amended
as follows:
PART 622--FISHERIES OF THE CARIBBEAN, GULF, 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. 622.32, paragraph (b)(1)(iv) is revised to read as follows:
Sec. 622.32 Prohibited and limited harvest species.
* * * * *
(b) * * *
(1) * * *
(iv) No person may fish for or possess on board a fishing vessel a
Caribbean queen conch in or from the Caribbean EEZ, in the area east of
64E34' W. longitude which includes Lang Bank east of St. Croix, U.S.
Virgin Islands, except during November 1 through May 31.
* * * * *
0
3. In Sec. 622.33, paragraph (d) is added to read as follows:
[[Page 23909]]
Sec. 622.33 Caribbean EEZ seasonal and/or area closures.
* * * * *
(d) Queen conch closure in the Caribbean EEZ. (1) Pursuant to the
procedures and criteria established in the FMP for Queen Conch
Resources of Puerto Rico and the U.S. Virgin Islands, when the U.S.
Virgin Islands closes territorial waters off St. Croix to the harvest
and possession of queen conch, the Regional Administrator will
concurrently close the Caribbean EEZ, in the area east of 64[deg]34' W.
longitude which includes Lang Bank, east of St. Croix, U.S. Virgin
Islands, by filing a notification of closure with the Office of the
Federal Register. Closure of the adjacent EEZ will be effective until
the next fishing season for territorial waters opens November 1.
(2) During the closure, as specified in paragraph (d)(1) of this
section, no person may fish for or possess on board a fishing vessel, a
Caribbean queen conch, in or from the Caribbean EEZ, in the area east
of 64[deg]34' W. longitude which includes Lang Bank, east of St. Croix,
U.S. Virgin Islands.
[FR Doc. 2011-10446 Filed 4-28-11; 8:45 am]
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