[Federal Register Volume 60, Number 222 (Friday, November 17, 1995)]
[Rules and Regulations]
[Pages 57686-57690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28348]



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DEPARTMENT OF COMMERCE
50 CFR Part 642

[Docket No. 950725189-5260-02; I.D. 062795A]
RIN 0648-XX24


Coastal Migratory Pelagic Resources of the Gulf of Mexico and 
South Atlantic; Changes in Catch Limits

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS announces changes in the management measures applicable 
to the Atlantic migratory groups of king and Spanish mackerel and the 
Gulf 

[[Page 57687]]
group of king mackerel, in accordance with the framework procedure for 
adjusting management measures for the Fishery Management Plan for the 
Coastal Migratory Pelagic Resources of the Gulf of Mexico and South 
Atlantic (FMP). This rule decreases the total allowable catch (TAC), 
commercial allocation, and recreational bag limit for Atlantic group 
king mackerel; increases the TAC and commercial allocation for Atlantic 
group Spanish mackerel; and changes the commercial vessel trip limits 
for Gulf group king mackerel. The intended effect is to protect king 
and Spanish mackerel from overfishing and continue stock rebuilding 
programs while still allowing catches by important recreational and 
commercial fisheries dependent on king and Spanish mackerel.

EFFECTIVE DATE: December 18, 1995, except for Sec. 642.28(b)(2) which 
is effective November 22, 1995.

FOR FURTHER INFORMATION CONTACT: Mark F. Godcharles, 813-570-5305.

SUPPLEMENTARY INFORMATION: The fisheries for coastal migratory pelagic 
resources are regulated under the FMP. The FMP was prepared jointly by 
the Gulf of Mexico and South Atlantic Fishery Management Councils 
(Councils) and is implemented by regulations at 50 CFR part 642.
    In accordance with the framework procedure of the FMP, the Councils 
recommended, and NMFS published, a proposed rule to change certain 
management measures applicable to the Atlantic migratory groups of king 
and Spanish mackerel and the Gulf group of king mackerel (60 FR 39698, 
August 3, 1995). That proposed rule described the FMP framework 
procedures through which the Councils recommended the specific changes, 
and described the need and rationale for them. Those descriptions are 
not repeated here.
    The final rule adopts the proposed decrease in the TAC for Atlantic 
group king mackerel and the proposed increase in the TAC for Atlantic 
group Spanish mackerel. Under the provisions of the FMP, the 
recreational and commercial fisheries are allocated a fixed percentage 
of the TAC. The TACs and their allocations for the fishing year that 
commenced April 1, 1995, under the established percentages are as 
follows:

------------------------------------------------------------------------
                         Species                           m. lb   m. kg
------------------------------------------------------------------------
Atlantic Spanish Mackerel--TAC..........................    9.40    4.26
                                                         ---------------
  Recreational allocation (50%).........................    4.70    2.13
  Commercial allocation (50%)...........................    4.70    2.13
                                                                        
Atlantic King Mackerel--TAC.............................    7.30    3.31
                                                         ---------------
  Recreational allocation (62.9%).......................    4.60    2.09
  Commercial allocation (37.1%).........................    2.70    1.22
------------------------------------------------------------------------

Comments and Responses

    Five letters were received during the comment period. One from the 
South Atlantic Fishery Management Council (South Atlantic Council) 
supported the actions proposed for the Atlantic groups of king and 
Spanish mackerel and requested full approval and expedient 
implementation. The other four--from a U.S. Congressman, a fisherman, a 
commercial fishermen's organization, and a seafood association--opposed 
the commercial trip limits proposed for the Atlantic group king 
mackerel, contending that the proposals would negatively impact Florida 
Keys fishermen and are inconsistent with National Standards 1, 2, 4, 5, 
and 7 of the Magnuson Fishery Conservation and Management Act (Magnuson 
Act) as discussed below.
    Inadequate information in the South Atlantic Council's analyses of 
impacts on the Florida Keys fishery, and the inadequate opportunity for 
public comment during the Council framework process, preclude NMFS from 
determining at this time, whether the proposed commercial trip limits 
for Atlantic group king mackerel are consistent with the national 
standards. Available information suggests that impacted fishermen were 
not provided timely notice of the South Atlantic Council's intent to 
take final action on the proposed trip limits through the FMP framework 
process at its April 1995 meeting. Previous notices indicated that the 
trip limits would be considered in Amendment 8, which is being 
developed by the South Atlantic Council and the Gulf of Mexico Council 
(Gulf Council). NMFS believes that if the South Atlantic Council been 
aware of these deficiencies, it may not have approved the trip limits. 
For these reasons, NMFS has decided not to implement the proposed trip 
limits at this time.

National Standard 1 and the FMP

    Comment: The commenters state that implementation of the trip 
limits proposed for Atlantic group king mackerel during the 1995-96 
season is unnecessary to reduce harvest and safeguard an overrun of the 
reduced commercial allocation, 2.70 million lb (1.22 million kg). They 
commented that the quota will not be reached anyway, and the trip 
limits would reduce harvest and preclude the taking of the annual 
commercial allocation and TAC and, thus, the achievement of optimum 
yield (OY).
    Response: Information now available from fishery reporting 
specialists and the quota monitoring program indicates that the reduced 
commercial quota will not be reached and the fishery will not be closed 
during the 1995-96 fishing year, although that was not clear at the 
time the South Atlantic Council took action. To date, effort and 
harvest have not increased significantly off southeast Florida as had 
been expected by the Council; nevertheless, the likelihood of an 
increase in effort and harvest by presently unemployed fishermen still 
exists and corrective action may be needed as early as the 1996-97 
fishing year. Currently, only a few new entrants, who were displaced 
from inshore fisheries that closed July 1, 1995, as a result of 
Florida's net ban or from closed northeast U.S. groundfish fisheries, 
have joined the fishery. Also, this year's production is paralleling 
that of the previous year, which totaled about 2.02 million lb (0.92 
million kg). Thus, immediate implementation of trip limits appears 
unnecessary to reduce harvest off south and southeast Florida and 
prevent overrun of the commercial quota and closure of the commercial 
fishery before the Carolina fisheries have an opportunity to take their 
traditional fall/winter catch. Although the latest available 
information indicates that the approved 1995-96 commercial allocation 
of 2.70 million lb (1.22 million kg) for the Atlantic group king 
mackerel probably will not be reached this year that does not preclude 
future implementation of trip limits as a necessary device to keep 
landings within the quota and user groups within their allocations.
    The FMP specifies that commercial trip limits only may be imposed 
under framework action when necessary to keep user groups within their 
allocations. Therefore, NMFS recommends that the Councils consider 
Amendment 8 as the most expedient vehicle to submit trip limits for 
review. As in a previous review of these proposed trip limits, NMFS 
affirms that proposals that potentially reallocate the quota and may 
affect access for certain fishery participants should be addressed 
through an FMP amendment. Given the complexity and controversial 
aspects of these trip limit proposals, NMFS believes they will be more 
appropriately reviewed and resolved under Amendment 8. The trip limit 
proposals 

[[Page 57688]]
have been retained as a management option in Amendment 8, and the Gulf 
Council also has recommended a 125-fish trip limit as a management 
option for the Florida Keys fishery for Atlantic group king mackerel.

National Standard 2

    Comment: The commenters also contend that the proposed commercial 
trip limits are inconsistent with the best available scientific 
information, which indicates that the stock is not overfished or in 
need of more conservative management measures to reduce mortality and 
prevent early closure and overharvest of the commercial allocation. 
They reference the 1995 stock assessment, which reports that Atlantic 
group king mackerel are not overfished. That report estimates the 
spawning potential ratio at 55 percent, well over the present 30 
percent overfishing level defined in the FMP and the 20 percent level 
recently recommended by scientific advisers. Therefore, they argue that 
the implementation of trip limits is unnecessary to curtail harvest in 
the Florida Keys, inferring that the 40,000 to 50,000 lb (18,144 to 
22,680 kg) of king mackerel generally taken there during the April 
season insignificantly affect the status of the Atlantic group king 
mackerel.
    Response: For the reasons stated above in the response under 
National Standard 1, NMFS is unable at this time to determine whether 
the trip limits are based on the best available scientific information. 
However, increased effort and harvest in the future, coupled with lower 
estimates of acceptable biological catch (ABC) and a lower TAC, may 
necessitate future implementation of trip limits to prevent quota 
overruns and keep user groups within their allocations.

National Standard 4

    Comment: The commenters believe that the proposed trip limits would 
unfairly and inequitably discriminate against participants in the 
Florida Keys fishery. A 50-fish trip limit would exclude many 
participants, and thus reallocate their traditional share of the quota 
to more northerly participants. This would inflict an unfair economic 
burden on dependent businesses and communities. Fishermen would not be 
able to operate in the April fishery near the Dry Tortugas, because 50 
king mackerel would provide insufficient revenue to offset expenses and 
generate an acceptable profit per trip. Traditionally, fishermen in the 
Florida Keys take 3- to 5-day fishing trips ranging 30 to 85 nautical 
miles from their home landing port. The commenters believe that a 3500-
lb (1588-kg) trip limit for Florida fishermen north of Brevard County, 
who take trips of similar distance and duration to harvest the same 
group of king mackerel, would be discriminatory. The 3500-lb (1588-kg) 
trip limit would provide an unfair opportunity for northern 
participants to harvest up to 7 times as many king mackerel per trip as 
could be harvested off the Florida Keys under a 50-fish trip limit.
    Response: NMFS believes that inaccuracies in the analyses 
considered by the South Atlantic Council raise questions about the 
rationale for the trip limits. Specifically, it is unclear how the 
apparent disadvantage to Florida Keys fishermen that would result from 
a 50-fish trip limit would maximize overall benefits from the fishery 
as stated in the analyses. NMFS believes the proposed trip limits, 
including the 3500-lb (1,588 kg) proposal, have the potential to alter 
harvest geographically, redistribute catch, and reallocate quotas among 
user groups. Therefore, these proposals should be reanalyzed and 
reconsidered before submission for review.

National Standard 5

    Comment: The commenters contend that the trip limits would not 
promote efficiency in the utilization of fishery resources for Florida 
Keys fishermen. The higher costs of production to harvest Atlantic 
group king mackerel from more distant fishing grounds require harvests 
greater than 50 fish per trip to operate efficiently and profitably. 
They note that the 3500-lb (1588-kg) trip limit proposal was offered 
only to fishermen operating in the Atlantic exclusive economic zone 
north of Florida's Brevard County, but not to those in the Florida 
Keys.
    Response: In the Florida Keys fishery, a 50-fish trip limit would 
appear to decrease harvest while increasing the cost of harvest and 
operations. However, the impact of these localized inefficiencies on 
attaining OY or maximizing benefits for the overall fishery cannot be 
accurately determined based on the rationale and inaccurate analyses 
provided thus far. Therefore, NMFS at this time is unable to determine 
whether prosecution of the fishery under a 50-fish trip limit would 
promote wise and efficient use of natural resources in the fishery.

National Standard 7

    Comment: The commenters also contend that the proposed trip limits 
would not minimize costs, place an undue economic and regulatory burden 
on Florida Keys fishermen, and add more micromanagement measures to an 
already highly regulated fishery that is not overfished or able to take 
its quota or achieve optimum yield. Consequently, the trip limits are 
inconsistent with a balanced management strategy and National Standard 
7.
    Response: See response to previous comment under National Standard 
5. In addition, NMFS has advised the South Atlantic Council to 
reanalyze available information and consider resubmitting the proposed 
trip limits with supporting rationale specifically addressing the 
balance of costs and benefits, as part of Amendment 8.

Other Concerns

    Comment: Three respondents opposed the 27 percent reduction in the 
TAC proposed for the Atlantic group king mackerel because of their 
belief that the reduction is not supported by the best available 
scientific information (i.e., 1995 Report of the Mackerel Stock 
Assessment Panel), which indicates that the group is not overfished; 
its spawning potential ratio is estimated well above the FMP-defined 30 
percent overfishing level.
    Response: The South Atlantic Council identified legitimate concerns 
in proposing a TAC at the lower limit of the ABC range, 7.3-15.5 
million lb (3.3-7.0 million kg), calculated by the Stock Assessment 
Panel. The reduced TAC of 7.3 million lb (3.3 million kg) represents a 
conservative risk-averse strategy that reflects the South Atlantic 
Council's concern that next year's ABC estimate will be lower; 
calculation of the 1996 ABC estimate will include a more accurate 
estimate of juvenile mortality taken as bycatch in the south Atlantic 
shrimp fishery. The reduced TAC reflects concern for the resource, but 
still provides an ample harvest level that has been reached or exceeded 
only four times in the past nine years under FMP quota management. 
Accordingly, NMFS adopts the revised TAC of 7.30 million lb (3.31 
million kg).
    Comment: One respondent opposed the commercial trip limits proposed 
for the Gulf group king mackerel in the Florida west coast sub-zone 
because of a belief that they would discriminate against the more 
efficient and productive fishermen, would not resolve 
overcapitalization problems of too many boats chasing a very small 
quota, and would remain as a lingering feature in an already complex 
management system in lieu of implementing a permanent comprehensive 
solution, e.g., limited entry. 

[[Page 57689]]

    Response: The trip limits are intended to maintain traditional 
harvest in the Florida west coast commercial fishery for Gulf group 
king mackerel, thereby preventing disproportionate harvest of the quota 
by certain user groups that could result in a situation similar to that 
which required emergency remedial action during the 1994-95 fishing 
year. From February 1-21, 1995, the hook-and-line fishery in the 
Florida west coast sub-zone was reopened under a 300,000-lb (136,078-
kg) emergency supplement. The fishery was reopened because northwest 
Florida fishermen harvested most of the quota before king mackerel 
migrated to traditional winter fishing grounds off the Florida Keys, 
where historically most of the quota had been taken. Accordingly, the 
final rule implements the trip limits.
Partial Approval/Deferral
    Based on the most recent stock assessment and quota monitoring 
information, and on comments received during the public comment period, 
the 1995-96 preseason adjustments have been partially approved. At this 
time, NMFS is implementing all of the proposed changes except for the 
trip limits proposed for the commercial fishery for Atlantic group king 
mackerel. Implementation of those trip limits is being deferred due to 
inadequate and inaccurate analyses of their impacts on Florida Keys 
fishermen, insufficient justification for the proposed limits, and 
possible inconsistencies with the Magnuson Act and the FMP annual 
framework adjustment process as discussed above. Implementation of the 
proposed trip limits will be reconsidered if they are resubmitted with 
adequate and accurate analyses as a part of Amendment 8.

Changes From the Proposed Rule

    For the reasons set forth above, the final rule does not implement 
commercial trip limits for Atlantic group king mackerel. Likewise, the 
final rule does not include the proposed prohibitions in Sec. 642.27 
corresponding to those trip limits. In addition, the final rule 
corrects an erroneous reference in Sec. 642.7(t).

Classification

    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that the proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. The reasons were published in the preamble to the 
proposed rule (60 FR 39698, August 3, 1995). As a result, a regulatory 
flexibility analysis was not prepared.
    The Assistant Administrator for Fisheries, NOAA, finds that good 
cause exists, under 5 U.S.C. 553(d)(3), to establish an effective date 
of less than 30 days after the date of publication for the trip limits 
for commercial hook-and-line vessels that harvest Gulf group king 
mackerel in the Florida west coast sub-zone. To avoid early closure of 
the fishery and disproportionate harvest of the quota by certain user 
groups, these trip limits are effective 5 days after the date of 
publication.

List of Subjects in 50 CFR Part 642

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: November 9, 1995.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 642 is amended 
as follows:

PART 642--COASTAL MIGRATORY PELAGIC RESOURCES OF THE GULF OF MEXICO 
AND SOUTH ATLANTIC

    1. The authority citation for part 642 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. In Sec. 642.7, paragraphs (s), (t), and (u) are revised to read 
as follows:


Sec. 642.7  Prohibitions.

* * * * *
    (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), (b)(1), or (b)(2), 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 on 
board 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)(1)(ii)(A).
    (u) In the Florida west coast sub-zone, on board 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)(1)(ii)(C).
* * * * *
    3. In Sec. 642.24, paragraph (a)(1)(ii)(A) is revised to read as 
follows:


Sec. 642.24  Bag and possession limits.

    (a) * * *
    (1) * * *
    (ii) * * *
    (A) Northern area--five per person through December 31, 1995; three 
per person thereafter.
* * * * *


Sec. 642.25  [Amended]

    4. In Sec. 642.25, in paragraph (a)(2), the numbers ``3.71'' and 
``1.68'' are revised to read ``2.70'' and ``1.22'', respectively, and 
in paragraph (b)(2), the numbers ``4.60'' and ``2.09'' are revised to 
read ``4.70'' and ``2.13'', respectively.


Sec. 642.27  [Amended]

    5. In Sec. 642.27(b), the numbers ``4.35'' and ``1.97'' are revised 
to read ``4.45'' and ``2.02'', respectively.
    6. In Sec. 642.28, a sentence is added at the end of paragraph 
(a)(2); in paragraph (c), the phrase ``the trip limit change specified 
in paragraph (a) of this section'' is revised to read ``the trip limit 
changes specified in paragraphs (a) and (b) (2) of this section''; and 
paragraph (b)(1), and paragraph (e) introductory text, are revised 
effective December 18, 1995, set forth below. Paragraph (b)(2) of 
Sec. 642.28 is revised effective November 22, 1995, to read as follows:


Sec. 642.28  Additional limitations for Gulf group king mackerel in the 
eastern zone.

    (a) * * *
    (2) * * * However, if 75 percent of the sub-zone's quota has not 
been harvested by March 1, the vessel limit remains at 50 king mackerel 
per day until the sub-zone's quota is filled or until March 31, 
whichever occurs first.
    (b) Florida west coast sub-zone. (1) Gillnet gear. (i) In the 
Florida west coast sub-zone, king mackerel in or from the EEZ may be 
possessed on board or landed from a vessel for which a permit with a 
gillnet endorsement has been issued under Sec. 642.4, from July 1, each 
fishing year, until a closure of the Florida west coast sub-zone's 
commercial fishery for vessels fishing with run-around gillnets has 
been effected under Sec. 642.26--in amounts not exceeding 25,000 lb 
(11,340 kg) per day.
    (ii) In the Florida west coast sub-zone:
    (A) King mackerel in or from the EEZ may be possessed on board or 
landed from a vessel that uses or has on board a run-around gillnet on 
a trip only when such vessel has on board a commercial permit for king 
and Spanish mackerel with a gillnet endorsement;
    (B) King mackerel from the west coast sub-zone landed by a vessel 
for which 

[[Page 57690]]
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
    (C) King mackerel in or from the EEZ harvested with gear other than 
run-around gillnet may not be retained on board a vessel for which such 
commercial permit with endorsement has been issued.
    (2) Hook-and-line gear. In the Florida west coast sub-zone, king 
mackerel in or from the EEZ may be possessed on board or landed from a 
vessel permitted under Sec. 642.4(a)(1) and operating under the 
commercial hook-and-line gear quota in Sec.  642.25(a)(1)(i)(B)(1):
    (i) From July 1, each fishing year, until 75 percent of the sub-
zone's hook-and-line gear quota has been harvested--in amounts not 
exceeding 125 king mackerel per day; and
    (ii) From the date that 75 percent of the sub-zone's hook-and-line 
gear quota has been harvested until a closure of the west coast sub-
zone's hook-and-line fishery has been effected under Sec. 642.26--in 
amounts not exceeding 50 king mackerel per day.
* * * * *
    (e) Transfer at sea. A person for whom a trip limit specified in 
paragraph (a), (b)(1)(i), or (b)(2) of this section or a gear 
limitation specified in paragraph (b)(1)(ii)(A) of this section applies 
may not transfer at sea from one vessel to another a king mackerel:
* * * * *
[FR Doc. 95-28348 Filed 11-16-95; 8:45 am]
BILLING CODE 3510-22-W