[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48848-48852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23769]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 950725189-6245-04 ; I.D. 060696A]
RIN 0648-AI92


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
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: 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 implements 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.

EFFECTIVE DATE: September 23, 1996.

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

SUPPLEMENTARY INFORMATION: The fisheries for coastal migratory pelagic 
resources are managed under the FMP. The FMP was prepared by the Gulf 
of Mexico and South Atlantic Fishery Management Councils and is 
implemented by regulations at 50 CFR part 622 under the authority of 
the Magnuson Fishery Conservation and Management Act (Magnuson Act).
    In accordance with the framework rulemaking procedures of the FMP, 
the South Atlantic Council (Council) recommended, and NMFS published, a 
proposed rule to establish commercial vessel trip limits for the 
Atlantic migratory group of king mackerel (61 FR 34785, July 3, 1996). 
That proposed rule described the FMP framework procedures through which 
the Council recommended the trip limits and explained the need and 
rationale for

[[Page 48849]]

them. Those descriptions are not repeated here.

Comments and Responses

    Three letters were received during the comment period. One from the 
Council supported the proposed trip limits and requested approval and 
expedient implementation to forestall a possible closure during the 
1996-97 season. The other two--from a gillnet fisherman and a 
commercial fishermen's organization--opposed the trip limits. Similar 
comments were addressed in the final rule implementing the partially 
approved 1995-96 mackerel catch specifications (60 FR 57686; November 
17, 1995) and in the proposed rule announcing this action (61 FR 34785; 
July 3, 1996).

National Standard 1

    Comment: One commenter stated that trip limits for Atlantic group 
king mackerel are unnecessary and inconsistent with maintaining optimum 
yield (OY) and maximizing benefits to everyone. He further commented 
that such proposals designed to decrease efficiency and prevent quota 
overruns are not justifiable considering that the annual commercial 
quota has not been harvested since the 1988-89 season and that the 
resource is not considered overfished.
    Response: National Standard 1 requires conservation and management 
measures to prevent overfishing while achieving, on a continuing basis, 
the OY from each fishery. NMFS believes the trip limits will not 
preclude harvest of the commercial quota or achievement of OY. Rather, 
in consideration of newly available stock assessment information and 
the Council's recent actions to reduce total allowable catch (TAC) and 
quotas, NMFS has determined that the trip limits are necessary to 
achieve the objectives of the FMP and those specified for this action. 
Specifically, the trip limits should: Prevent user groups from 
exceeding their traditional portion of the quota; reduce the likelihood 
of a closure that would negatively impact commercial fisheries north of 
Florida; limit harvest during the spawning period, and, thus protect 
the stock from recruitment overfishing and help in rebuilding it to the 
level capable of meeting the long-term OY target of the FMP; and 
minimize gear and user group conflicts resulting from possible effort 
shifts by fishermen displaced from other fisheries.
    This year's stock assessment for Atlantic group king mackerel 
provided much lower estimates of the spawning potential ratio (SPR) and 
the acceptable biological catch (ABC) range than in previous years. 
Levels of SPR form the basis of the FMP definitions for ``overfished,'' 
``overfishing,'' and ``OY.'' The recommended ABC range establishes the 
boundaries for the Council's selection of the annual TAC. The 1996 SPR 
estimate, which declined to 32 percent from last year's estimate of 55 
percent, is above the 20 percent SPR level delineating overfished 
stocks but is below the 40 percent SPR level required to meet the long-
term, target level OY proposed by the Council in FMP Amendment 8. The 
estimated 1996 range of ABC decreased to 4.4 - 6.8 million lb (1,996 - 
3,084 mt) from the 1995 estimate of 7.3 - 15.5 million lb (3,311 - 
7,031 mt). Accordingly, the Council recommended that the 1996-97 TAC be 
decreased from 7.3 to 6.8 million lb (3,311 to 3,048 mt).
    If the Council's recommended TAC is approved, the resulting 1996-97 
commercial quota of 2.52 million lb (1,143 mt) will be somewhat above 
levels harvested during the past 4 fishing years, which ranged from 
about 2.0 - 2.2 million lb (907 - 998 mt). Moreover, this resulting 
quota will be similar to catch levels during the preceding 3-year 
period (1989-90 through 1991-92 fishing years), which ranged from 2.5 - 
2.7 million lb (1,134 - 1,225 mt). Therefore, at the expected 
commercial quota level of 2.52 million lb, implementation of vessel 
trip limits is necessary to avoid an early closure of the fishery and 
help ensure equitable distribution of the commercial quota among 
traditional fisheries.
    As discussed in detail in the preamble to the proposed rule (60 FR 
34785; July 3, 1996), the Council also proposed the trip limits to 
prevent excessive harvest of pre-spawning and spawning fish and, thus, 
to avoid recruitment overfishing of both Atlantic and Gulf groups of 
king mackerel. The trip limits should prevent excessive catches of the 
Atlantic group king mackerel throughout the spring/summer spawning 
season and of the Gulf group king mackerel 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. The Council considers such catches ``double-
dipping,'' (i.e., overrunning of Gulf group quotas that have already 
been harvested during the south Florida winter fishing season). Such 
overruns contribute to exceeding TAC, or the yearly OY target, and 
increase the risk of recruitment overfishing and of not achieving OY.
    According to the Council's impact analyses, the trip limits would 
alter or reduce the efficiency of operations for some fishermen. For 
some years and areas, particularly south Florida, the trip limits would 
have substantially reduced some individual vessel's landings as well as 
the area's total catch. Nevertheless, given the estimated reduced stock 
size and the lower commercial quota for the 1996-97 fishing year, 
implementation of trip limits is necessary to prevent recruitment 
overfishing, to avoid disproportionate and inequitable harvest of the 
available quota by one user group compared to another, and to minimize 
the possibility of an early closure of the commercial fishery. 
Avoidance of such problems is consistent with National Standards 1, 3, 
and 4 (as discussed herein) and with the objectives of the FMP (e.g., 
stabilize fishery yields at maximum sustainable yield (MSY) and 
minimize gear and user group conflicts). For these reasons, NMFS 
believes that the trip limits strike a reasonable balance between 
achieving efficient resource utilization and promoting stability of the 
socioeconomic and biological characteristics of the fishery.

National Standard 2

    Comment: A commenter stated that the trip limits, particularly the 
1,250-lb (567-kg) commercial trip limit proposed for off Monroe County 
(Florida Keys), are not supported by the best available scientific 
information. He submitted an annotated bibliography suggesting that the 
trip limits are not designed to provide maximum protection for spawning 
king mackerel. For example, the largest trip limit is proposed for an 
area off the South Atlantic Bight, which he contends is a major 
spawning area. However, the most restrictive trip limits are proposed 
for south Florida in areas where the commenter suggests the 
contribution of spawning fish is not important. He also states that off 
North Carolina, king mackerel have a prolonged spawning season which 
peaks June through August. Therefore, he infers that few, if any, king 
mackerel spawn in the Florida Keys area. Finally, the commenter 
speculates that the proposals were not reviewed by the Council's 
Scientific and Statistical Committee (SSC).
    Response: National Standard 2 requires conservation and management 
measures to be based upon the best scientific information available. 
The Director of NMFS' Southeast Fisheries Science Center has certified 
that the trip limits are based on the best available scientific 
information and appear risk-averse in maintaining the stock at a size 
level not posing risks of recruitment

[[Page 48850]]

overfishing. Furthermore, the trip limit proposals have been reviewed 
by the SSCs of both the South Atlantic and Gulf of Mexico Fishery 
Management Councils.
    The lower trip limits are designed to prevent excessive catches and 
overfishing off south Florida where about half to two-thirds of the 
commercial quotas for the Atlantic and Gulf groups of king mackerel are 
taken annually. The trip limits off south Florida should protect 
against double-dipping of quotas already taken during the winter season 
and allow greater escapement for overwintering fish to migrate to 
summer spawning grounds. They also would preclude excessive harvest 
during summer spawning months.
    Although larval collection surveys have provided some information 
on the location of king mackerel spawning grounds, the findings of the 
surveys are not considered conclusive because the patchy occurrence of 
larvae in oceanic waters has made biological sampling difficult. 
Therefore, information yielded from sparse larval data collections off 
south Florida is unlikely to be representative or an accurate indicator 
of the actual spawning contribution of this area. Presently, 
determination of this type of information is confounded by seasonal 
migrations, protracted spawning seasons, and inconclusive findings of 
stock identification genetics studies. Until further scientific 
information becomes available, protection of spawners by trip limits, 
even in areas considered as minor spawning grounds, is a conservative 
approach in a risk-averse management program that prevents overfishing 
and rebuilds stocks to long-term OY target levels. As indicated by the 
1996 stock assessment, both groups of king mackerel are below SPR 
target levels representing the long-term OY.

National Standard 3

    Comment: One commenter stated that the different trip limits do not 
provide uniform management for the stock throughout its range. He 
reasoned that if Atlantic group king mackerel is in jeopardy, fishing 
mortality from commercial fishing should be reduced uniformly 
throughout its range.
    Response: National Standard 3 requires that an individual stock of 
fish, to the extent practicable, be managed as a unit throughout its 
range, and that interrelated stocks of fish be managed as a unit or in 
close coordination. The goal of National Standard 3 is not to manage 
stocks with identical measures but to manage a given stock as a unit 
throughout its range. Indeed, National Standard 6 requires conservation 
and management measures to take into account and allow for variations 
among, and contingencies in, fisheries, fishery resources, and catches. 
The comments received in opposition to the proposed rule were 
considered to be rigid interpretations of the national standards that 
do not reflect accurately the flexibility described in the Guidelines 
for Fishery Management Plans and the legislative history of the 
Magnuson Act. Consequently, NMFS has determined that the trip limits 
are an important part of a risk-adverse program to protect against 
overfishing, distribute the annual commercial quota equitably among 
resource users throughout the management area, preclude in-season 
closure and resultant negative socioeconomic impacts, rebuild the stock 
to long-term OY target levels, and, thus, provide the socioeconomic and 
conservation benefits intended by the Council.

National Standard 4

    Comment: One commenter believed that the trip limit proposals were 
not fair and equitable to the commercial fishermen of Monroe County. He 
did not believe that, compared to the lower trip limits proposed for 
Florida's southeast and Florida Keys fisheries, the higher trip limit 
proposed for the northern area logically follows from the Council's 
projection of an additional effort shift from nearby fishermen 
displaced from New England fishery closures. He stated, ``Ideally, all 
users should bear the burden of resource conservation.''
    Another commenter indicated that the trip limit proposals were 
unjust and unfair to Florida east coast net fishermen. He believed that 
the proposed trip limits would eliminate nets in favor of hook-and-line 
fishermen. Net fishermen, he stated, should have a share of the east 
coast subzone quota similar to that provided by the gillnet quota for 
the Florida west coast subzone.
    Response: National Standard 4 requires conservation and management 
measures to not discriminate between residents of different states; the 
allocation or assignment of fishing privileges among U.S. fishermen 
must be fair and equitable to all affected fishermen, reasonably 
designed to promote conservation, and implemented in a way so as to 
prevent any particular individual, corporation, or other entity from 
acquiring an excessive share of such privileges.
    NMFS believes the trip limits are consistent with National Standard 
4. From the perspective of assigning fishing privileges, they would be 
fair and equitable, reasonably calculated to promote conservation, and 
carried out in such a manner that no particular entity acquires an 
excessive share of such privileges. Although there will be some 
disadvantage to more efficient fishermen (e.g., high liners or net gear 
users), the trip limits are necessary to achieve long-term OY targets 
and to maximize overall benefits from the fishery to participants 
throughout the management area.
    In response to previous comments received, the Council increased 
the trip limit proposed for the Florida Keys from 50 fish to 1,250-lb 
(567-kg) (about 125 fish) per day. The higher limit was proposed to 
help offset costs of producing Atlantic group king mackerel from more 
distant fishing grounds and, thus, allow a more efficient and 
profitable operation of vessels in that area. The different trip limits 
in different areas of the coast may disadvantage some mackerel 
fishermen over others. However, the overall benefits to the entire 
community of resource users should offset any adverse impacts on 
specific fishermen. The 1,250-lb (567-kg) trip limit for the Florida 
Keys and the 500-lb (227-kg) trip limit for the Florida east coast 
should provide fair access while preventing excessive catches, early 
closures, and quota overruns. For these reasons, NMFS believes that the 
trip limits satisfy the requirements of National Standard 4 regarding 
fairness and equity to all fishery participants throughout the 
management area, while providing a rational management approach to 
achieve OY.
    Concern about the possibilities of effort increasing from displaced 
fishermen entering the fishery was only one of several factors 
supporting the implementation of trip limits. Some protection from 
potential effort shifts will be provided by all the trip limits.
    The comment suggesting a separate gillnet quota for Florida 
southeast coast fishermen is not within the scope of this action, 
therefore, no response is provided.

Other Comments

    Comment: The Council chairman stated that, after reviewing the 1996 
stock assessment and the decreased SPR estimate, the Council remains 
concerned about the status of Atlantic group king mackerel. In 
addition, he expressed concern that the TAC reduction recommended by 
the Council in response to the lower 1996 ABC range would result in an 
early closure of the 1996-97 fishing season, thereby negatively 
impacting states north of Florida. To avoid this potential

[[Page 48851]]

situation, he expressed the Council's support and request to implement 
the trip limits as soon as possible.
    Response: During agency review of the proposed action, NMFS 
carefully considered these and other comments before approving the 
Council's regulatory amendment and issuing this implementing final 
rule. NMFS issued this final rule in as timely a manner as practicable 
consistent with the Council's stated objectives and concerns about the 
effects of an early fishery closure.

Changes from the Proposed Rule

    Since the proposed rule was published, NMFS has consolidated most 
of its fishery regulations for the Southeast Region into one set of 
regulations at 50 CFR part 622 (61 FR 34930, July 3, 1996). 
Accordingly, this final rule amends the regulations for coastal 
migratory pelagic resources in 50 CFR part 622 in lieu of an amendment 
to similar regulations previously contained in part 642. Minor changes 
in language have been made to conform to the standards in part 622. 
Further, the addition, in logical order, of commercial trip limits for 
Atlantic group king mackerel, as contained in this final rule, requires 
redesignation of existing paragraphs in Sec. 622.44(a). For convenience 
and ease of understanding, this final rule redesignates and reprints 
the existing commercial trip limits for Gulf group king mackerel 
contained in that paragraph without substantive change.

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 for this certification were published in 
the preamble to the proposed rule (61 FR 34966, July 3, 1996) and are 
not repeated here. No comments were received in response to the 
proposed rule that required a change in that assessment. As a result, a 
regulatory flexibility analysis was not prepared.
    To avoid early closure of the commercial Atlantic group king 
mackerel fishery and disproportionate harvest of the quota by certain 
user groups, it is essential that the trip limits for commercial 
vessels that harvest Atlantic group king mackerel from New York through 
southwest Florida be implemented as soon as possible. The Assistant 
Administrator for Fisheries, NOAA, therefore, 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 of this final rule. To 
provide sufficient notification of the trip limits, particularly to 
vessels that may be at sea, NMFS makes the final rule effective 
September 23, 1996.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Puerto Rico. Reporting and recordkeeping 
requirements, Virgin Islands.

    Dated: September 11, 1996.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, 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

    1. The authority citation for part 622 continues to read as 
follows:

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

    2. In Sec. 622.44, paragraph (a) is revised to read as follows:


Sec. 622.44  Commercial trip limits.

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    (a) King mackerel--(1) Atlantic group. (i) North of 29 deg.25' N. 
lat., which is a line directly east from the Flagler/Volusia County, 
FL, boundary, 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).
    (ii) In the area between 29 deg.25' N. lat. and 28 deg.47.8' N. 
lat., which is a line directly east from the Volusia/Brevard County, FL 
boundary, 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.
    (iii) In the area between 28 deg.47.8' N. lat. and 25 deg.20.4' N. 
lat., which is a line directly east from the Dade/Monroe County, FL 
boundary, 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.
    (iv) In the area between 25 deg.20.4' N. lat. and 25 deg.48' N. 
lat., which is a line directly west from the Monroe/Collier County, FL 
boundary, king mackerel in or from the EEZ may not be possessed on 
board or landed from a vessel in a day in amounts exceeding 1,250 lb 
(567 kg) from April 1 through October 31.
    (2) Gulf group. Commercial trip limits are established in the 
eastern zone as follows. (See Sec. 622.42(c)(1)(i) for specification of 
the eastern zone and Sec. 622.42(c)(1)(i)(A)(3) for specifications of 
the subzones in the eastern zone.)
    (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 and Spanish 
mackerel has been issued, as required under Sec. 622.4(a)(2)(iv)--
    (A) From November 1, each fishing year, until 75 percent of the 
subzone's fishing year quota of king mackerel has been harvested--in 
amounts not exceeding 50 king mackerel per day.
    (B) From the date that 75 percent of the subzone's fishing year 
quota of king mackerel has been harvested until a closure of the 
Florida east coast subzone has been effected under Sec. 622.43(a)--in 
amounts not exceeding 25 king mackerel per day. However, if 75 percent 
of the subzone's quota has not been harvested by March 1, the vessel 
limit remains at 50 king mackerel per day until the subzone's quota is 
filled or until March 31, whichever occurs first.
    (ii) Florida west coast subzone--(A) Gillnet gear. (1) In the 
Florida west coast subzone, king mackerel in or from the EEZ may be 
possessed on board or landed from a vessel for which a commercial 
permit with a gillnet endorsement has been issued, as required under 
Sec. 622.4(a)(2)(ii), from July 1, each fishing year, until a closure 
of the Florida west coast subzone's fishery for vessels fishing with 
run-around gillnets has been effected under Sec. 622.43(a)--in amounts 
not exceeding 25,000 lb (11,340 kg) per day.
    (2) In the Florida west coast subzone:
    (i) 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.
    (ii) King mackerel from the west coast subzone 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. 622.42(c)(1)(i)(A)(2)(ii).
    (iii) 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.
    (B) Hook-and-line gear. In the Florida west coast subzone, king 
mackerel in or

[[Page 48852]]

from the EEZ may be possessed on board or landed from a vessel with a 
commercial permit for king and Spanish mackerel, as required by 
Sec. 622.4(a)(2)(iv), and operating under the hook-and-line gear quota 
in Sec. 622.42(c)(1)(i)(A)(2)(i):
    (1) From July 1, each fishing year, until 75 percent of the 
subzone's hook-and-line gear quota has been harvested--in amounts not 
exceeding 125 king mackerel per day.
    (2) From the date that 75 percent of the subzone's hook-and-line 
gear quota has been harvested until a closure of the west coast 
subzone's hook-and-line fishery has been effected under 
Sec. 622.43(a)--in amounts not exceeding 50 king mackerel per day.
    (iii) Notice of trip limit changes. The Assistant Administrator, by 
filing a notification of trip limit change with the Office of the 
Federal Register, will effect the trip limit changes specified in 
paragraphs (a)(2)(i) and (a)(2)(ii)(B) of this section when the 
requisite harvest level has been reached or is projected to be reached.
* * * * *
[FR Doc. 96-23769 Filed 9-16-96; 8:45 am]
BILLING CODE 3510-22-F