[Federal Register Volume 61, Number 129 (Wednesday, July 3, 1996)]
[Proposed Rules]
[Pages 34785-34788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16880]


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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

50 CFR Part 642

[Docket No. 950725189-6182-03; I.D. 060696A]
RIN 0648-AI92


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: Proposed rule; request for comments.

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SUMMARY: In accordance with the framework procedure for adjusting 
management measures of the Fishery Management Plan for the Coastal 
Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic 
(FMP), NMFS proposes commercial vessel trip limits for the Atlantic 
migratory group of king mackerel. The intended effects of this rule are 
to preclude an early closure of the commercial fishery, protect king 
mackerel from overfishing, and maintain healthy stocks while still 
allowing catches by important commercial fisheries.

DATES: Written comments must be received on or before July 18, 1996.

ADDRESSES: Comments must be mailed to Mark F. Godcharles, Southeast 
Region, National Marine Fisheries Service, 9721 Executive Center Drive 
N., St. Petersburg, FL 33702.
    Send requests for copies of the regulatory amendment document 
(dated June 1995) and its supplement (dated February 1996), which 
include the environmental assessment and regulatory impact review for 
this action, to the South Atlantic Fishery Management Council, 
Southpark Building, One Southpark Circle, Suite 306, Charleston, SC 
29407-4699.

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 and 
is implemented by regulations at 50 CFR part 642.

    In accordance with the framework procedures of the FMP, the South 
Atlantic Council (Council) recommended to the Director, Southeast 
Region, NMFS (Regional Director), a regulatory amendment, which, among 
other changes, included establishment of commercial vessel trip limits 
for the Atlantic migratory group of king mackerel. These vessel trip 
limits were included in a proposed rule published on August 3, 1995 (60 
FR 39698). A final decision by NMFS on whether the trip limits were 
consistent with the National Standards of the Magnuson Fishery 
Conservation and Management Act (Magnuson Act) was deferred, and the 
reasons for the deferral were published in the final rule implementing 
the approved measures of the regulatory amendment (60 FR 5768, November 
17, 1995). The Council revised the proposed trip limits to address 
cited deficiencies, took additional public comment, and resubmitted a 
supplemented regulatory amendment for NMFS' review and approval.

    The Council proposes daily trip limits for vessels harvesting under 
the commercial allocation for Atlantic group king mackerel. This 
segment of the fishery has not been subject to trip limits. As revised, 
the daily possession/landing limit for a vessel using non-prohibited 
gear and having a Federal commercial mackerel permit would be 3,500 lb 
(1,588 kg) of king mackerel in or from the exclusive economic zone 
(EEZ) year-round in the northern area (i.e., between the New York/
Connecticut and Flagler/Volusia County, FL boundaries). Off Volusia 
County, FL, the daily trip limit would be 3,500 lb (1,588 kg) of king 
mackerel in or from the EEZ from April 1 through October 31. South of 
there, between the Volusia/Brevard and Dade/Monroe County boundaries, 
the daily trip limit would be 500 lb (227

[[Page 34786]]

kg) of king mackerel in or from the EEZ from April 1 through October 
31. In the southernmost area, off Monroe County (Florida Keys), the 
daily trip limit would be 1250 lb (567 kg) of king mackerel in or from 
the EEZ from April 1 through October 31. All trip limits proposed for 
the Atlantic group king mackerel are daily landing/possession limits 
that would be reduced to zero for that group when the annual commercial 
allocation is reached.
    The Council desires implementation as soon as possible in the 
fishing year that began April 1, 1996, to preclude excessive early 
season harvest of king mackerel, early closure, disproportionate 
harvest of the allocation by regional fisheries, subsequent negative 
socioeconomic impacts, recruitment overfishing, and waste.
    In its resubmitted proposal, the Council revised the original trip 
limit proposals by converting limits on the number of fish that may be 
possessed or landed to equivalent pounds of fish. The Council 
determined that this change was necessary to prevent waste caused by 
high-grading (i.e., the act of discarding smaller fish and replacing 
them with larger ones to maximize aggregate poundage landed while 
complying with the daily trip limit on the number of fish landed). Such 
waste causes estimates of release and fishing mortality to be lower 
than the actual mortality and results in an inaccurate evaluation of 
the status of the stocks and of the fishery impacts on the resource.
    Trip limits were first proposed in conjunction with a proposed 
decrease in total allowable catch (TAC) from 10.0 million lb (4,536 
metric tons (mt)) to 7.3 million lb (3,311 mt) for the Atlantic group 
king mackerel for the 1995/96 fishing year (August 3, 1995, 60 FR 
39698). The reduced TAC was approved by NMFS and implemented through a 
final rule (November 17, 1995, 60 FR 57686). Further decreases were 
expected for the 1996/97 fishing year . The 7.3-million lb TAC 
decreased the commercial allocation for the 1995-96 fishing year from 
the previous level of 3.71 million lb (1,683 mt) to 2.70 million lb 
(1,225 mt). The Council reduced TAC to the lower range of the 
acceptable biological catch (ABC) in anticipation of a lower ABC for 
the 1996/97 fishing year, and expressed concerns about the status of 
both the Atlantic and Gulf groups of king mackerel and recent low 
catches.
    As the Council expected and the 1995 Mackerel Stock Assessment 
Panel Report projected, the 1996 Report of the Mackerel Stock 
Assessment Panel presented lower estimates of the spawning potential 
ratio (SPR) and the ABC for Atlantic group king mackerel. Although some 
of the decreases in these parameters may be attributed to new 
analytical methods, most are attributable to the inclusion of more 
accurate estimates for the mortality of juvenile and subadult mackerels 
taken as incidental bycatch in the Atlantic shrimp trawl fishery off 
southeastern states. The 1996 modal SPR estimate of 32 percent is down 
by about 36 percent from the approximate 50 percent level estimated for 
previous years, and the 1996 ABC is about half of 1995 estimates. The 
1996 ABC range estimate is 4.1 - 6.8 million lb (mode: 5.5 million lb) 
(1,860 - 3,084 mt, mode: 2,495 mt) compared to the 1995 estimate of 7.3 
- 15.5 million lb (mode: 10.9 million lb) (3,311 - 7,031 mt, mode: 
4,944 mt). The Council sets TAC within the ABC range usually at or 
below the modal value suggesting that the 1996/97 TAC will be even 
lower than last year's 7.3 million lb (3,311 mt) that yielded 
commercial and recreational allocations of 2.70 (1.225 mt) and 4.60 M 
(2.087 mt), respectively.
    Although the 1996 estimate of SPR indicates that the Atlantic group 
king mackerel is not overfished, the lower SPR value suggests, as the 
Council previously suspected, that stock size may not be as large as 
previous estimates indicated. The modal 1996 SPR estimate is reduced to 
32 percent, well below the 1995 estimate of 55 percent and just above 
the 30 percent overfished level currently defined in the FMP. Even 
though the estimated 32 percent SPR level is well above the overfishing 
level of 20 percent SPR proposed in FMP Amendment 8, it is below the 
Council's proposed target SPR of 40 percent for achieving maximum 
sustainable yield or long-term optimum yield (OY). Moreover, the actual 
total catch (commercial and recreational combined) may have reached its 
lowest level (5.92 million lb; 2,685 mt) in 15 years during the 1994/95 
season; preliminary estimates indicate that the 1995/96 catch will 
remain at this same low level. In the past nine years, total catch has 
exceeded 7.30 million lb (3,311 mt) four times.
    The Council also proposed the trip limits, in anticipation of 
increased effort in the fishery, to prevent excessive harvest of pre-
spawning and spawning fish and recruitment overfishing. The Council is 
concerned that a number of new entrants may join the fishery as a 
result of the recent prohibition on gillnet use in Florida waters (July 
1, 1995) and New England fishery closures.
    The Council recommended the trip limits not only to provide 
increased protection for Atlantic group king mackerel but also for the 
Gulf group. The trip limits would prevent the detrimental effects of 
excessive catches of the Atlantic group throughout the spring/summer 
spawning season and of the Gulf group during April. King mackerel 
harvest in April, unrestricted by daily vessel trip limits, could 
result in the unintentional taking of large quantities of Gulf group 
king mackerel when such fish are still located within the boundaries of 
the Atlantic group. Tag and recapture information indicate that king 
mackerel off south Florida from late fall through early spring, 
particularly off the Florida Keys, mostly belong to the Gulf migratory 
group.
    The fishing season for Atlantic group king mackerel fishery opens 
annually on April 1, and vessels targeting fish with hook-and-line, 
run-around gillnet, and purse seine gear are not restricted by trip 
limits. Consequently, excessive capture of Gulf group king mackerel 
could occur off south Florida in April if conditions delay emigration 
to spring/summer spawning grounds.
    The Council considers such catches ``double-dipping'' (i.e., 
overrunning of quotas that have already been harvested). In the past 
two years, hook-and-line and run-around gillnet quotas for Gulf group 
king mackerel were reached or exceeded, and respective fisheries were 
closed, after large February catches off the Florida Keys. The Gulf 
group king mackerel stock is still considered overfished; preliminary 
calculations for the 1996/97 fishing year suggest that this group would 
remain in the overfished status even under the less restrictive 
overfished/overfishing definitions proposed in Amendment 8.
    Excessive capture of king mackerel, unrestrained by trip limits and 
under a reduced commercial allocation, could result in a 
disproportionately large harvest off south Florida and an early closure 
of the commercial fishery for the Atlantic group. Fishery participants 
in the northern area might then lose the opportunity to harvest their 
traditional and equitable share of the allocation. Atlantic group king 
mackerel support an important fall fishery off North Carolina. An early 
fishery closure would adversely affect these traditional fisheries and 
could lead to severe socioeconomic impacts and subsequent requests for 
relief through emergency action.
    To keep the recreational catch within the reduced allocation of 4.6 
million lb (2,087 mt), the recreational bag limit for the EEZ from New 
York through Georgia was reduced on January 1, 1996, from

[[Page 34787]]

five to three fish per person. The Council determined that this 
reduction would be sufficient to maintain catch within the decreased 
allocation without changing the two-fish bag limit off Florida. 
Recreational catch estimates indicated that the bag limit reduction in 
the northern area (Georgia through New York) would provide about a 10 
percent reduction in catch. In addition, 1995 catch estimates for the 
1988/89 through 1990/91 fishing years, when the bag limit was three 
fish in the northern area and two fish off Florida, were below 4.6 
million lb (2,087 mt).
    Although a recreational bag limit reduction was approved to reduce 
catch in alignment with the decreased 1995/96 recreational allocation, 
NMFS deferred the decision to approve or disapprove the collateral 
commercial vessel trip limits until certain analytical and procedural 
deficiencies were corrected. The Council has addressed the deficiencies 
and revised and resubmitted the trip limit proposals. In conjunction 
with the public review of Amendment 8 to the FMP, additional public 
hearings were conducted to review the proposed trip limits. Thereafter, 
the Council revised its proposal to convert the units for the trip 
limits from numbers of fish to pounds of fish to reduce waste from the 
practice of high-grading and to allow vessels operating in the 
commercial fishery off Monroe County (Florida Keys) from April 1 though 
October 31 to possess or land up to 1250-lb (567-kg) per trip, thus 
reducing socioeconomic impacts on that sector. Preliminary review of 
the revised supporting documents indicates that the Council has 
addressed the deficiencies previously noted in the initial analyses. As 
discussed below, NMFS' preliminary review of the Council's re-
submission did not reveal any inconsistencies with the national 
standards.

Consistency with the National Standards

    In regard to the original trip limit proposals, as discussed in the 
preamble to the final rule implementing the approved measures of the 
Council's regulatory amendment (60 FR 57686; November 17, 1995), 
inaccuracies and inconsistencies in the analyses of impacts and 
inadequate opportunity for public comment prevented NMFS from 
determining if the proposals were consistent with the National 
Standards (N.S.). Some letters received during the comment period, 
which was announced in the proposed rule (60 FR 39698; August 3, 1995), 
contended that the trip limit proposals would preclude achievement of 
OY (N.S. 1), were not based on the best available information (N.S. 2), 
would be unfair and inequitable to fishery participants throughout the 
management area (N.S. 4), would unnecessarily promote harvest 
inefficiency (N.S. 5), and would constitute unjustifiable 
administrative costs and burdens (N.S. 7).
    After reviewing the revised impact analyses, findings of the 1996 
mackerel stock assessment concerning the status of the Atlantic group 
king mackerel, and results from additional public hearings, NMFS has 
made a preliminary determination that the proposed commercial vessel 
trip limits are consistent with the N.S. as discussed below. Previous 
problems related to the Council's analyses of the potential impacts of 
the 50-fish trip limit on the Florida Keys fishery and not providing 
sufficient notice to impacted fishermen appear to have been corrected. 
Impact analyses were revised and the Council held additional public 
hearings. In response to the comments received at those hearings, the 
Council increased the proposed trip limit for the Florida Keys area 
from 500 to 1250 pounds (initially proposed as 50 to 125 fish) per 
vessel per day.

National Standard 1

    Newly available information contained in the 1996 Report of the 
Mackerel Stock Assessment Panel probably will compel the Council to 
recommend further reductions in TAC for Atlantic group king mackerel. 
The forthcoming TAC recommendation for the 1996/97 fishing year 
probably would reduce both commercial and recreational allocations to 
levels that have been harvested during the past two years. 
Consequently, NMFS expects that TAC will be taken and OY achieved for 
the 1996/97 fishing year even with the imposition of trip limits. To 
provide the socioeconomic benefits that the Council intends while 
preventing overfishing, the proposed trip limits appear necessary.

National Standard 2

    Recent review of the proposed trip limits and supporting documents, 
increased effort and king mackerel landings off southwest Florida this 
April (1996), and findings of the 1996 stock assessment indicate that 
the proposed trip limits are based on the best available scientific 
information. In a recent review, NMFS Southeast Fisheries Science 
Center (Center) advised that the revised proposed trip limits appear to 
be based on the best available scientific information. Further, the 
Center advised that the proposals clearly are risk averse in that they 
would maintain stock levels that would not be at risk of recruitment 
overfishing.
    Although the 1996 SPR estimate indicates that the Atlantic group 
king mackerel is not overfished, the lower estimated value suggests, as 
the Council previously suspected, that stock size may not be as large 
as previous estimates indicated. The 1996 SPR estimate is reduced to 32 
percent, near the 30 percent SPR overfished level currently defined in 
the FMP and above the 20 percent level in proposed Amendment 8. 
Nevertheless, the current 32 percent SPR estimate is below the proposed 
SPR target of 40 percent for achieving maximum sustainable yield (MSY) 
or long-term OY. Therefore, the best available scientific information 
is not inconsistent with the Council's recommendations for more 
conservative management measures that reduce fishing mortality and, 
thus, prevent early closure and quota overruns, and decrease the risk 
of recruitment overfishing.

National Standard 4

    NMFS believes the revised proposed trip limits have the potential 
to maintain traditional harvest and quota distribution among user 
groups. Initially, the proposed trip limit for the Florida Keys fishery 
was 50 fish throughout the Florida east and southwest coast areas. The 
50-fish limit was requested and was strongly supported by many 
southeast Florida king mackerel fishermen.
    In response to comments received at public hearings, the Council 
increased the proposed trip limit for the Florida Keys to 1250-lb (567-
kg) to provide sufficient revenue to operate in the April fishery near 
the Dry Tortugas. This proposal is equivalent to the 125-fish trip 
limit for the Gulf group king mackerel hook-and-line fishery that 
begins in that area on November 1. Consequently, the proposed 1250-lb 
(567 kg) trip limit would appear to provide fair access while 
preventing excessive catches, early closures, and quota overruns, and 
thus satisfies the requirements of N.S. 4 regarding fairness and equity 
to all fishery participants throughout the management area.
    For the fishery from northeast Florida through New York, the 
Council proposed the 3500-lb (1588-kg) trip limit. Available landings 
information reviewed by the Council indicates that proposal would have 
essentially no effect on harvest. Moreover, the Council does not expect 
the proposed increased trip limit for this area to alter the status quo 
or provide increased harvesting advantage. If inordinate large northern

[[Page 34788]]

landings do occur in the future, the Council will reconsider and revise 
the 3500-lb (1588-kg) trip limit to prevent inequitable quota 
distribution and recruitment overfishing.

National Standard 5

    The Council's impact analyses indicate that the proposed trip 
limits would have restricted less than 6 percent of the trips in any 
given area. However, the 500-lb (227-kg) and 1250-lb (567-kg) trip 
limits proposed for south Florida would have substantially reduced some 
individual vessel landings and total catch for those areas for some 
years. Data examined by the Council indicated that the 3500-lb (1,588 
kg) trip limit would have impacted no trips off Volusia County 
(Florida) and would have only minimally impacted trips between the 
Volusia/Flagler County (Florida) and New York/Connecticut boundaries. 
Such impacted trips landed at North Carolina ports would have exceeded 
that state's landing limit (i.e., 3500 lb). The Council's analyses were 
based on landings estimates for Florida (1991/92 through 1994/95 
seasons) and North Carolina.

National Standard 7

    The revised proposed trip limits appear consistent with a 
management strategy to balance costs and benefits; the Council's impact 
analyses indicate that the trip limits will not inordinately affect 
costs or place an undue economic and regulatory burden on fishermen or 
fisheries.
    The Regional Director initially concurs that the Council's 
recommendations are necessary to protect king mackerel stocks and 
prevent overfishing and that they are consistent with the objectives of 
the FMP, the N.S., and other applicable law. Accordingly, the Council's 
proposed revised trip limits are published for comment.

Classification

    This proposed 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 of the Small 
Business Administration that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. Historical landings data for the last four fishing seasons 
indicate that the percentage of fishing trips that would have been 
affected by the proposed trip limits ranged from 0 to 5.4 percent. 
Although it is not possible to directly translate number of fishing 
trips into number of fishing firms impacted, it appears that less than 
20 percent of the small business entities involved in harvest of 
Atlantic king mackerel would be affected. The proposed trip limits are 
estimated to reduce the harvest of Atlantic king mackerel and the 
associated net revenue by about five percent. Compliance costs will not 
be affected by this action. There are no differential small and large 
business impacts because all affected entities are small entities. No 
capital costs of compliance are expected, and there is no information 
indicating that two or more percent of the existing harvesting firms 
will cease business operations as a result of this rule. The proposed 
trip limits are designed, in part, to moderate the rate of harvest, 
thereby minimizing the probability of early closures and the associated 
adverse socioeconomic impacts. Therefore, the trip limits are expected 
to provide small increases in long-term benefits to the industry. For 
these reasons, a regulatory flexibility analysis was not prepared.

List of Subjects in 50 CFR Part 642

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: June 27, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 642 is 
proposed to be 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 (q) and (r) are revised to read as 
follows:


Sec. 642.7  Prohibitions.

* * * * *
    (q) Exceed a commercial trip limit for Atlantic group king or 
Spanish mackerel, as specified in Sec. 642.27(a) or (b).
    (r) Transfer at sea from one vessel to another an Atlantic group 
king or Spanish mackerel subject to a commercial trip limit, as 
specified in Sec. 642.27(f).
* * * * *
    3. In Sec. 642.27, paragraphs (a) through (e) are redesignated as 
paragraphs (b) through (f), respectively; in newly redesignated 
paragraph (b), the introductory text is removed; in newly redesignated 
paragraphs (c) and (d), the references to ``paragraph (a)(2) of this 
section'' are removed and ``paragraph (b)(2) of this section'' is added 
in their places; in newly redesignated paragraph (f) introductory text 
and in newly redesignated paragraph (f)(2) the term ``Spanish 
mackerel'' is removed and ``king or Spanish mackerel'' is added in its 
place; the section heading is revised; and paragraph (a) and newly 
redesignated paragraph (b) heading are added to read as follows:


Sec. 642.27  Commercial trip limits for Atlantic group king and Spanish 
mackerel.

    (a) Atlantic group king mackerel. (1) North of a line extending 
directly east from the Volusia/Flagler County, Florida boundary 
(29 deg.25' N. lat.) to the outer limit of the EEZ, king mackerel in or 
from the EEZ may not be possessed on board or landed from a vessel in a 
day in amounts exceeding 3,500 lb (1,588 kg).
    (2) In the area between lines extending directly east from the 
northern and southern boundaries of Volusia County, Florida (29 deg.25' 
N. lat. and 28 deg.47.8' N. lat., respectively) to the outer limit of 
the EEZ, king mackerel in or from the EEZ may not be possessed on board 
or landed from a vessel in a day in amounts exceeding 3,500 lb (1,588 
kg) from April 1 through October 31.
    (3) In the area between lines extending directly east from the 
Volusia/Brevard County, Florida boundary (28 deg.47.8' N. lat.) to the 
outer limit of the EEZ and directly east from the Dade/Monroe County, 
Florida boundary (25 deg.20.4' N. lat.) to the outer boundary of the 
EEZ, king mackerel in or from the EEZ may not be possessed on board or 
landed from a vessel in a day in amounts exceeding 500 lb (227 kg) from 
April 1 through October 31.
    (4) In the area between lines extending directly east from the 
Dade/Monroe County, Florida boundary (25 deg.20.4' N. lat.) to the 
outer boundary of the EEZ and directly west from the Monroe/Collier 
County, Florida boundary (28 deg.48' N. lat.) to the outer boundary of 
the EEZ, king mackerel in or from the EEZ may not be possessed on board 
or landed from a vessel in a day in amounts exceeding 1250 lb (567 kg) 
from April 1 through October 31.
    (b) Atlantic group Spanish mackerel.
* * * * *
[FR Doc. 96-16880 Filed 6-28-96; 9:44 am]
BILLING CODE 3510-22-F