[Federal Register Volume 59, Number 164 (Thursday, August 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20730]
[[Page Unknown]]
[Federal Register: August 25, 1994]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 204 and 642
[Docket No. 940553-4223; I.D. 050394A]
RIN 0648-AE98
Coastal Migratory Pelagic Resources of the Gulf of Mexico and
South Atlantic
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement Amendment 7 to the
Fishery Management Plan for the Coastal Migratory Pelagic Resources of
the Gulf of Mexico and South Atlantic (FMP). Amendment 7 divides the
eastern zone commercial quota for the Gulf migratory group of king
mackerel into equal quotas for the Florida east and west coast
fisheries, further divides the quota for the west coast sub-zone into
equal quotas for hook-and-line and run-around gillnet harvesters, and
allows persons to fish under the gillnet quota in the west coast sub-
zone only aboard vessels that have endorsements on their Federal
commercial mackerel permits to fish with gillnets in that sub-zone. The
intended effect of this rule is to allocate equitably the eastern zone
commercial quota among users and avoid the negative social and economic
emergencies related to a recent, disproportionately large, west coast
harvest in the commercial fishery for Gulf group king mackerel off
Florida. This rule also informs the public of the approval by the
Office of Management and Budget (OMB) of a collection-of-information
requirement contained in this rule and publishes the OMB control number
for that collection.
EFFECTIVE DATE: September 23, 1994, except that the amendment to
Sec. 204.1(b) is effective August 24, 1994; Sec. 642.4(m) is effective
August 24, 1994, except for Sec. 642.4(m)(4), which is effective August
24, 1994, through October 31, 1994; and Secs. 642.7(t), (u), and (v)
and 642.28(b)(2) are effective November 1, 1994.
ADDRESSES: Requests for copies of the final regulatory flexibility
analysis (FRFA) may be sent to: Southeast Regional Office, NMFS, 9721
Executive Center Drive, St. Petersburg, FL 33702.
FOR FURTHER INFORMATION CONTACT: Mark F. Godcharles, 813-570-5305.
SUPPLEMENTARY INFORMATION: The fishery for coastal migratory pelagic
resources (king mackerel, Spanish mackerel, cero, cobia, little tunny,
dolphin, and, in the Gulf of Mexico only, bluefish) is managed under
the FMP. The FMP was prepared by the Gulf of Mexico and South Atlantic
Fishery Management Councils (Councils) and is implemented through
regulations at 50 CFR part 642 under the authority of the Magnuson
Fishery Conservation and Management Act (Magnuson Act).
The background and rationale for the measures in Amendment 7 were
included in the proposed rule (59 FR 28330, June 1, 1994) and are not
repeated here.
Comments and Responses
Four letters were received during the comment period in response to
the proposed rule. The Gulf of Mexico Fishery Management Council (Gulf
Council) submitted a comment regarding the proposed regulations. Two
letters from a commercial fishermen's organization expressed opposition
to the 50/50 allocation of the eastern zone commercial quota of Gulf
group king mackerel between Florida's east and west coast fisheries.
The fourth comment received from the Chief Counsel for Advocacy, Small
Business Administration (SBA) indicated that the initial regulatory
flexibility analysis (IRFA) prepared for Amendment 7 does not comply
with the Regulatory Flexibility Act (RFA) because it failed to contain
an examination of other alternatives as required by the RFA. Specific
comments and NMFS responses are listed below.
Comment: The Gulf Council expressed concern that the regulatory
language contained in the proposed rule would not effectively prevent
gillnet vessels operating in the west coast sub-zone from additionally
harvesting Gulf group king mackerel under the hook-and-line quota.
Response: NMFS concurs with this concern and has ensured that the
final rule language clearly prohibits gillnet vessels from fishing for
Gulf group king mackerel in the west coast sub-zone with gear other
than a gillnet. The final rule is intended to prevent gillnet vessels
from landing king mackerel under both quotas and to be consistent with
the provisions of Amendment 7.
Under the final rule, king mackerel may be possessed or landed from
a vessel that uses, or has aboard, a run-around gillnet, only when it
possesses a Federal commercial mackerel permit with a gillnet
endorsement. King mackerel landed from such a vessel will be counted
only against the gillnet quota, while those landed by vessels not
having a gillnet endorsement will be counted against the hook-and-line
quota. Monitoring of mackerel landings by gear type is feasible and
will be utilized during the 1994-95 winter season for this fishery.
Accuracy in monitoring catches by gear type of this fishery is expected
to be similar to that achieved through other quota monitoring programs.
As in those programs, success in limiting catches to quotas will be
highly dependent on the good faith and cooperation of the fishing
industry, and the ability of NMFS to close the fishery in a timely
manner.
Comment: Two letters received from commercial fishermen objected to
the proposed 50/50 split of the eastern zone commercial quota for Gulf
group king mackerel between Florida's east and west coast fisheries.
They preferred an alternative allocation, considered and rejected by
the Council, that would establish a 56/44 west/east coast division of
the quota, as depicted in Table 1 of Amendment 7. This allocation
occurred during the period from the 1985-86 season through the 1992-93
season under quota management initiated with FMP Amendment 1. These
commenters contended that actions taken by the Gulf Council in its
decision to support the 50/50 west/east split of the quota were
inconsistent with the Magnuson Act. Specifically, they argued that the
Councils' decision was not based on the best available scientific
information and that reasonable opportunity was not provided for
interested parties to review and comment on the new data used by the
Council as a basis for its final decision.
Response: NMFS has reviewed the Councils' proposed equal allocation
between Florida's east and west coast fisheries and has determined that
this allocation is consistent with the national standards and other
provisions of the Magnuson Act and other applicable law. NMFS believes
that the Councils' decision was based on many factors as discussed in
Amendment 7, and that the Councils were not obliged to be guided solely
by historical landing percentages for each sub-zone.
Equal (50/50) apportionment of the eastern zone commercial quota
for Gulf group king mackerel between Florida's east and west coasts has
historical precedence and acceptance. Continuation of the State/Federal
management regime for Florida's commercial fishery for Gulf group king
mackerel appears to be supported by most affected fishermen from both
coasts. Amendment 7's delineation of east and west coast sub-zones and
establishment of equal quotas for each area is similar to management
provided by Florida regulations during the 1990-91 and 1991-92 seasons,
vacated during the 1992-93 fishing year, and resumed for the 1993-94
fishing year under a Federal emergency interim rule (58 FR 51789,
October 5, 1993).
Withdrawal of enforcement of Florida regulations during the 1992-93
season in response to a Federal court ruling resulted in
disproportionate sharing of the eastern zone commercial quota of Gulf
group king mackerel among east and west coast fishermen. To remedy
socioeconomic hardships resultant from record low east coast catches,
an emergency supplemental allocation of 259,000 lb (117,480 kg) was
granted to Florida east coast fishermen (58 FR 10990, February 23,
1993). This final rule implementing Amendment 7 is intended to address
permanently the fishery conditions that required previous emergency
regulatory action.
NMFS disagrees with the contention that the Councils' decision was
not based on the best available information. The Councils considered
several apportionment ratios for the east coast-west coast allocation,
including the preferred alternative, based on the best scientific
information available. The Councils concluded, and NMFS concurs, that
the 50/50 apportionment is supported by the best available information.
Also, the NMFS Science and Research Director, Southeast Fisheries
Science Center, has certified that the scientific information contained
in Amendment 7 is the best available.
NMFS also does not agree that insufficient time was allowed for
public review and comment on alleged new data presented to and
considered by the Gulf Council at its March 1994 meeting when it voted
to support the 50/50 west/east coast allocation. Representatives of the
South Atlantic Council presented landings data to the Gulf Council,
although in a different form, that had already been the subject of
public review and comment and were part of the public record for a
substantial period of time prior to the meeting. The same data
presented to and considered by the Gulf Council at its meeting were
available previously to the public as monthly landings from the Florida
Department of Environmental Protection, NMFS, and the Councils.
Reliable landings estimates of the most recent fishing year (1992-93
season) were available to the public by mid-1993, 7 to 8 months before
the Gulf Council's March 1994 meeting.
Comment: The SBA commented that the IRFA does not comply with the
RFA because it fails to contain an examination of other management
alternatives as required by the RFA. Specifically, SBA indicated that
the IRFA did not include an examination of alternatives that might
further protect and enhance the coastal migratory pelagic fisheries of
the Gulf of Mexico without unduly burdening small businesses.
Response: NMFS concurs. Consequently, NMFS has included such
analyses in the FRFA.
Changes From the Proposed Rule
In Sec. 642.2, the address in the definition of ``Regional
Director'' is corrected.
In Sec. 642.4(m)(4), the proposed rule specified that initial
requests for gillnet endorsements on vessel permits must be postmarked
or hand delivered ``during the 45-day period commencing on the first
day of effectiveness of the final rule implementing this measure.'' In
this final rule, the quoted language is replaced with, ``not later than
October 31, 1994.'' Advance notification has been given to the limited
number of fishermen affected by this new requirement for gillnet
endorsements. Accordingly, NMFS believes that the cutoff date of
October 31 provides fishermen with adequate time to submit requests for
endorsements.
As discussed above, a measure and related prohibition are added at
Secs. 642.28(b)(2)(iii) and 642.7(u), respectively, to allow vessels
with gillnet endorsements to retain king mackerel in or from the EEZ in
the Florida west coast sub-zone only when harvested with run-around
gillnet gear.
Additional Changes Proposed
Under the FMP's framework procedure for adjusting management
measures, the Councils have proposed changes in the total allowable
catch for the Atlantic groups of king and Spanish mackerel and changes
in the commercial trip limits for Gulf group king mackerel in the
eastern zone. Preliminary notice of these changes was published on
August 9, 1994 (59 FR 40509).
Effective Dates
The gillnet endorsement procedural requirements (Sec. 642.4(m)) and
incorporation of the OMB approval number for the collection-of-
information requirement associated with applications for gillnet
endorsements in the table of OMB Control Numbers for NOAA Information
Collection Requirements (Sec. 204.1(b)) are made effective immediately
in that they are not substantive rules subject to a delay in effective
date under section 553(d) of the Administrative Procedure Act.
The provisions for the initial applications for gillnet
endorsements, contained in Sec. 642.4(m)(4), are temporary. Therefore,
that paragraph is effective only through October 31, 1994.
The provisions of new Sec. 642.28(b)(2), which depend on the
presence or absence of a gillnet endorsement on a vessel permit, and
the related prohibitions at Sec. 642.7(t), (u), and (v), are not
effective until November 1, 1994. This will allow sufficient time for
fishermen to submit requests for gillnet endorsements and for NMFS to
process and issue them.
Classification
The Regional Director determined that Amendment 7 is necessary for
the conservation and management of the fishery for coastal migratory
pelagic resources and that it is consistent with the Magnuson Act and
other applicable law.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
The Councils prepared an IRFA as part of Amendment 7, which
concluded that this rule may have a significant economic impact on a
substantial number of small entities. In response to a comment from the
SBA, NMFS prepared an FRFA that provides additional analysis of the
effects of management alternatives on small businesses; the FRFA
supports the same conclusions regarding significant economic impacts as
were reached by the IRFA. A copy of the FRFA is available from the
Councils (or NMFS) (see ADDRESSES).
This final rule contains a collection-of-information requirement
subject to the Paperwork Reduction Act-- specifically, applications for
gillnet endorsements on vessel permits. This collection of information
has been approved by OMB under OMB control number 0648-0205. The public
reporting burden for this collection of information is estimated to
average 30 minutes per response, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collections of information. Send comments regarding this burden
estimate or any other aspect of the collection of information,
including suggestions for reducing the burden, to Edward E. Burgess,
NMFS, 9721 Executive Center Drive, St. Petersburg, FL 33702 and to the
Office of Information and Regulatory Affairs, OMB, Washington, DC 20503
(Attention: NOAA Desk Officer).
List of Subjects
50 CFR Part 204
Reporting and recordkeeping requirements.
50 CFR Part 642
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: August 18, 1994.
Gary C. Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 204 and 642
are amended as follows:
PART 204--OMB CONTROL NUMBERS FOR NOAA INFORMATION COLLECTION
REQUIREMENTS
1. The authority citation for part 204 continues to read as
follows:
Authority: Paperwork Reduction Act of 1980, 44 U.S.C. 3501-3520
(1982).
Sec. 204.1 [Amended]
2. In Sec. 204.1(b), the table is amended by adding in numerical
order, the entry ``Sec. 642.4(m)'', in the first column and the control
number ``-0205'' in the second column.
PART 642--COASTAL MIGRATORY PELAGIC RESOURCES OF THE GULF OF MEXICO
AND SOUTH ATLANTIC
3. The authority citation for part 642 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
4. In Sec. 642.2, the definition of Regional Director is revised to
read as follows:
Sec. 642.2 Definitions.
* * * * *
Regional Director means the Director, Southeast Region, NMFS, 9721
Executive Center Drive, St. Petersburg, FL 33702, telephone 813-570-
5301; or a designee.
* * * * *
5. In Sec. 642.4, new paragraph (m) is added to read as follows:
Sec. 642.4 Permits and fees.
* * * * *
(m) Gillnet endorsement. (1) For a vessel to use a run-around
gillnet for king mackerel in the Florida west coast sub-zone (see
Sec. 642.25(a)(1)(i)(B)), a vessel for which a king and Spanish
mackerel permit has been issued pursuant to this section must have a
gillnet endorsement on such permit and such permit and endorsement must
be on board the vessel.
(2) An owner of a permitted vessel may add or delete a gillnet
endorsement on a permit by returning to the Regional Director the
vessel's existing permit with a written request for addition or
deletion of the gillnet endorsement. Such request must be postmarked or
hand delivered during June, each year.
(3) A gillnet endorsement may not be added or deleted from July 1
through May 31 each year, any renewal of the permit during that period
notwithstanding. From July 1 through May 31, a permitted vessel that is
sold, if permitted by the new owner for king and Spanish mackerel, will
receive a permit with or without the endorsement as was the case for
the vessel under the previous owner. From July 1 through May 31, the
initial king and Spanish mackerel permit issued for a vessel new to the
fishery will be issued without a gillnet endorsement.
(4) The provisions of paragraphs (m)(2) and (m)(3) of this section
notwithstanding, the initial requests for gillnet endorsements must be
postmarked or hand delivered not later than October 31, 1994.
6. In Sec. 642.7, paragraph (p) is revised, paragraphs (s) and (u)
are removed, paragraph (t) is redesignated as paragraph (x), and new
paragraphs (s) through (w) are added to read as follows:
Sec. 642.7 Prohibitions.
* * * * *
(p) After a closure specified in Sec. 642.26(a), sell, purchase,
trade, or barter, or attempt to sell, purchase, trade, or barter a king
or Spanish mackerel of the closed species/ migratory group/zone/sub-
zone/gear type, as specified in Secs. 642.22(c), 642.24(a)(4), and
642.26(b)(3).
* * * * *
(s) In the eastern zone, possess or land Gulf group king mackerel
in or from the EEZ in excess of an applicable trip limit, as specified
in Sec. 642.28(a) or Sec. 642.28(b)(1)(ii), or transfer at sea such
king mackerel, as specified in Sec. 642.28(e).
(t) In the Florida west coast sub-zone, possess or land Gulf group
king mackerel in or from the EEZ aboard a vessel that uses or has
aboard a run-around gillnet on a trip when such vessel does not have on
board a commercial permit for king and Spanish mackerel with a gillnet
endorsement, as specified in Sec. 642.28(b)(2)(i).
(u) In the Florida west coast sub-zone, aboard a vessel for which a
commercial permit for king and Spanish mackerel with a gillnet
endorsement has been issued, retain Gulf group king mackerel in or from
the EEZ harvested with gear other than run-around gillnet, as specified
in Sec. 642.28(b)(2)(iii).
(v) In the Florida west coast sub-zone, transfer at sea Gulf group
king mackerel taken by a vessel for which a commercial permit for king
and Spanish mackerel with a gillnet endorsement has been issued, as
specified in Sec. 642.28(e).
(w) Violate any prohibitions or restrictions for the prevention of
gear conflicts that may be specified in accordance with Sec. 642.29.
* * * * *
7. In Sec. 642.25, paragraph (c) is removed and paragraphs (a)(1)
introductory text and (a)(1)(i) are revised to read as follows:
Sec. 642.25 Commercial allocations and quotas.
* * * * *
(a) * * *
(1) The commercial allocation for the Gulf migratory group of king
mackerel is 2.50 million pounds (1.13 million kg) per fishing year. The
Gulf migratory group is divided into eastern and western zones
separated by a line extending directly south from the Alabama/Florida
boundary (87 deg.31'06'' W. long.) to the outer limit of the EEZ.
Quotas for the eastern and western zones are as follows:
(i) 1.73 million pounds (0.78 million kg) for the eastern zone,
which is further divided into quotas as follows:
(A) 865,000 pounds (392,357 kg) for the Florida east coast sub-
zone, which is that part of the eastern zone north of a line extending
directly east from the Dade/Monroe County, Florida boundary
(25 deg.20.4' N. lat.); and
(B) 865,000 pounds (392,357 kg) for the Florida west coast sub-
zone, which is that part of the eastern zone south and west of the
Dade/Monroe County, Florida boundary (25 deg.20.4' N. lat.), which is
further divided into quotas by gear types as follows:
(1) 432,500 pounds (196,179 kg) for vessels fishing with hook-and-
line gear; and
(2) 432,500 pounds (196,179 kg) for vessels fishing with run-around
gillnets.
* * * * *
8. Section 642.26 is revised to read as follows:
Sec. 642.26 Closures.
(a) Notice of closure. The Assistant Administrator, by filing a
notice with the Office of the Federal Register, will close the
commercial fishery in the EEZ for king mackerel from a particular
migratory group, zone, sub-zone, or gear type, and for Spanish mackerel
from the Gulf migratory group, when the allocation or quota under
Sec. 642.25(a) or Sec. 642.25(b)(1) for that migratory group, zone,
sub-zone, or gear type has been reached or is projected to be reached.
The commercial fishery for Atlantic group Spanish mackerel is managed
under the commercial trip limits specified in Sec. 642.27 in lieu of
the closure provisions of this section.
(b) Fishing after a closure. On and after the effective date of a
closure invoked under paragraph (a) of this section, for the remainder
of the appropriate fishing year for commercial allocations specified in
Sec. 642.20(a):
(1) A person aboard a vessel in the commercial fishery may not fish
for king or Spanish mackerel in the EEZ or retain fish in or from the
EEZ under a bag limit specified in Sec. 642.24(a)(1) for the closed
species, migratory group, zone, sub-zone, or gear type, except as
provided for under paragraph (b)(2) of this section.
(2) A person aboard a vessel for which the permit indicates both
commercial king and Spanish mackerel and charter vessel for coastal
migratory pelagic fish may continue to retain fish under a bag and
possession limit specified in Sec. 642.24 (a)(1) and (a)(2) provided
the vessel is operating as a charter vessel.
(3) The sale, purchase, trade, or barter or attempted sale,
purchase, trade, or barter of king or Spanish mackerel of the closed
species, migratory group, zone, sub-zone, or gear type is prohibited.
This prohibition does not apply to trade in king or Spanish mackerel
harvested, landed, and sold, traded, or bartered prior to the closure
and held in cold storage by dealers or processors.
Sec. 642.31 [Removed]
Secs. 642.28 through 642.30 [Redesignated as Secs. 642.29 through
642.31]
9. Section 642.31 is removed; Secs. 642.28 through 642.30 are
redesignated as Secs. 642.29 through 642.31, respectively; and new
Sec. 642.28 is added to read as follows:
Sec. 642.28 Additional limitations for Gulf group king mackerel in the
eastern zone.
(a) Florida east coast sub-zone. In the Florida east coast sub-
zone, king mackerel in or from the EEZ may be possessed aboard or
landed from a vessel for which a commercial permit has been issued for
king and Spanish mackerel under Sec. 642.4:
(1) From November 1, each fishing year, until 50 percent of the
sub-zone's fishing year quota of king mackerel has been harvested--in
amounts not exceeding 50 king mackerel per day; and
(2) From the date that 50 percent of the sub-zone's fishing year
quota of king mackerel has been harvested until a closure of the
Florida east coast sub-zone has been effected under Sec. 642.26--in
amounts not exceeding 25 king mackerel per day.
(b) Florida west coast sub-zone. (1) In the Florida west coast sub-
zone, king mackerel in or from the EEZ may be possessed aboard or
landed from a vessel for which a commercial permit has been issued for
king and Spanish mackerel under Sec. 642.4:
(i) From July 1, 1994, until 75 percent of the sub-zone's fishing
year quota of king mackerel has been harvested--in unlimited amounts of
king mackerel; and
(ii) From the date that 75 percent of the sub-zone's fishing year
quota of king mackerel has been harvested until a closure of the
Florida west coast sub-zone has been effected under Sec. 642.26--in
amounts not exceeding 50 king mackerel per day.
(2) In the Florida west coast sub-zone:
(i) King mackerel in or from the EEZ may be possessed aboard or
landed from a vessel that uses or has aboard a run-around gillnet on a
trip only when such vessel has on board a commercial permit for king
and Spanish mackerel with a gillnet endorsement;
(ii) King mackerel from the west coast sub-zone landed by a vessel
for which such commercial permit with endorsement has been issued will
be counted against the run-around gillnet quota of
Sec. 642.25(a)(1)(i)(B)(2); and
(iii) Aboard a vessel for which such commercial permit with
endorsement has been issued, king mackerel in or from the EEZ harvested
with gear other than run-around gillnet may not be retained.
(c) Notice of trip limit changes. The Assistant Administrator, by
filing a notice with the Office of the Federal Register, will effect
the trip limit changes specified in paragraphs (a) and (b)(1)(ii) of
this section when the requisite harvest levels have been reached or are
projected to be reached.
(d) Combination of trip limits. A person who fishes in the EEZ may
not combine a trip limit of this section with any trip or possession
limit applicable to state waters.
(e) Transfer at sea. A person for whom a trip limit specified in
paragraph (a) or (b)(1)(ii) of this section or a gear limitation
specified in paragraph (b)(2) of this section applies may not transfer
at sea from one vessel to another a king mackerel:
(1) Taken in the EEZ, regardless of where such transfer takes
place; or
(2) In the EEZ, regardless of where such king mackerel was taken.
[FR Doc. 94-20730 Filed 8-24-94; 8:45 am]
BILLING CODE 3510-32-W