[Federal Register Volume 62, Number 84 (Thursday, May 1, 1997)]
[Rules and Regulations]
[Pages 23671-23674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11362]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 961204340-7087-02; I.D. 110196D]
RIN 0648-AI13


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Coastal Migratory Pelagic Resources of the Gulf of Mexico and South 
Atlantic; Catch Specifications

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 issues this rule to reduce the commercial quotas for 
Atlantic group king and Spanish mackerel, revise the trip limits for 
Atlantic group Spanish mackerel, reduce the commercial quota for Gulf 
group Spanish mackerel, revise the commercial trip limits in the 
eastern zone for Gulf group king mackerel, and establish a zero bag 
limit for Gulf group king mackerel for captains and crews of charter 
vessels and headboats. The intended effects of this rule are to protect 
king and Spanish mackerel from overfishing and maintain healthy stocks 
while still allowing catches by important commercial and recreational 
fisheries.

EFFECTIVE DATE: June 2, 1997.

FOR FURTHER INFORMATION CONTACT: Mark 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 622 under 
the Magnuson-Stevens Fishery. Conservation and Management Act 
(Magnuson-Stevens Act).
    In accordance with the framework procedures of the FMP, the 
Councils recommended, and NMFS published, a proposed rule to implement, 
for the 1996/97 fishing year, the following measures: For Atlantic 
migratory groups, reduced commercial quotas for king and Spanish 
mackerel and modified commercial trip limits for Spanish mackerel; and, 
for Gulf migratory groups, reduced commercial quota for Spanish 
mackerel and revised commercial trip limits and recreational bag limit 
for king mackerel (61 FR 66008, December 16, 1996). That proposed rule 
described the FMP's framework procedures through which the Councils 
recommended the changes and explained the need and rationale for them. 
Those descriptions are not repeated here.
    The 1996/97 fishing year for commercial fisheries for Gulf 
migratory group king mackerel ends June 30; for all other groups of 
Spanish and king mackerel, the fishing year ended March 31. The quotas 
and trip limits adopted here, however, will continue into the 1997/98 
fishing year until superseded by future specifications. The zero bag 
limit for Gulf group king mackerel for captains and crews of charter 
vessels and headboats will likewise continue until superseded.

Comments and Responses

    Eight comments were received during the comment period, all 
pertaining to changes proposed for Gulf group king mackerel. Two 
charter boat associations, two charter boat captains, and a marine 
extension agent opposed approval/implementation of the zero bag limit 
for captain and crew on charter and

[[Page 23672]]

headboat vessels. The other 3 comments, 2 from commercial fishermen and 
a petition signed by 23 commercial fishermen and charter boat captains, 
expressed opposition to the revised commercial trip limits proposed for 
Florida's east and west coast fisheries. A summary of the specific 
comments with agency responses follows.

Zero Bag Limit for Captain/Crew on Charter Vessel or Headboat

    Comment: Two commenters recommended disapproval of the zero bag 
limit proposal because they believe that the process by which it was 
considered and selected by the Gulf Council violated section 302(i)(6) 
of the Magnuson-Stevens Act and the FMP framework procedure for the 
annual adjustment of catch specifications (framework procedure). 
Specifically, they believe the Gulf Council did not allow ample time 
for affected fishermen or Council advisory committees to review and 
comment on a NMFS report on landings reduction options for the Gulf 
recreational king mackerel fishery that was presented to the Council 
one day prior to its making a final decision on the zero bag limit 
proposal. They also believe that the NMFS report was based on flawed 
data. They consider this report to be new information and, thus, 
subject to section 302(i)(6) of the Magnuson-Stevens Act, which 
requires that:

    At any time when a Council determines it appropriate to consider 
new information from a State or Federal agency or from a Council 
advisory body, the Council shall give comparable consideration to 
new information offered at that time by interested members of the 
public. Interested parties shall have a reasonable opportunity to 
respond to new data or information before the Council takes final 
action on conservation and management measures.

    Response: NMFS finds the Gulf Council's procedures and deliberation 
process in recommending the zero bag limit proposal to be consistent 
with all provisions of the Magnuson-Stevens Act and the FMP framework 
procedure. The public was provided opportunity to comment on the NMFS 
report at a public hearing (July 17, 1997) held by the Gulf Council 
just before making the decision to select the zero bag limit option. As 
required by the FMP framework process for the annual adjustment of 
catch specifications, this public hearing was held at the time and 
place where the Gulf Council considered the reports of the Mackerel 
Stock Assessment Panel (MSAP), and before it made final decisions on 
management changes for the 1996/97 fishing year. At similar meetings in 
previous years, the Councils also considered supplemental reports 
providing projected landings reductions for various bag limit options. 
Moreover, public comments on the NMFS report and the Gulf Council's 
decisions were accepted through December 31, 1996, the end of the 
comment period for the published proposed rule (61 FR 66008; December 
16, 1996) announcing the zero bag limit proposal.
    The Marine Recreational Fishery Statistics Survey (MRFSS) data used 
in the NMFS report in question was reviewed by the MSAP and used in its 
1996 reports about the status of the stocks. Those reports subsequently 
were reviewed by the Gulf Council's Mackerel Advisory Panel and 
Scientific and Statistical Committee, which considered them the best 
scientific information available. Data used in the NMFS report also 
were presented to the Gulf Council's Socioeconomic Panel.
    Comment: One commenter maintains that the zero bag limit proposal 
is based on flawed data from NMFS' MRFSS. He believes that MRFSS 
recreational catch estimate data contain excessive variability and, 
therefore, are not sufficiently accurate for stock assessments. 
Further, he believes that the MRFSS overestimates the number of days 
charter boats operate in the Florida Keys and target king mackerel.
    Response: As stated in the previous response, the NMFS report 
referenced by the commenters was based on the best available 
information (i.e., estimates of the recreational landings of king 
mackerel by the MRFSS, the NMFS Headboat Survey, and the Texas Parks 
and Wildlife Survey). The estimates from these sources are 
statistically reliable and are the only available comprehensive, 
region-wide, catch and effort data for recreational mackerel fisheries. 
The MRFSS does not estimate the number of days charter boats operate, 
nor did the NMFS report incorporate such estimates.
    Comment: Two charter boat captains believe that the zero bag limit 
for charter boat captains and crews is an unnecessary measure that 
would severely and adversely impact the charter boat industry in the 
Florida Keys and in northwest Florida (i.e., the panhandle area). One 
suggested that the Gulf Council acted prematurely to reduce 
recreational harvest because preliminary catch estimates for the 1995/
96 fishing year did not indicate an overrun of the recreational 
allocation.
    Response: NMFS believes that the zero bag limit for captain and 
crew on for-hire vessels is an appropriate and necessary measure to 
reduce the recreational harvest of Gulf group king mackerel. The latest 
available recreational catch estimates for the 1995/96 fishing year 
indicate an overrun of the recreational allocation that corresponds 
reasonably with the recreational catch reduction projected for the zero 
bag limit proposal. The catch estimates also indicate that a 
substantial portion of recent overruns of the recreational allocation 
for Gulf group king mackerel are attributable to increased landings by 
the charter vessel and headboat industry.
    The Gulf Council selected the zero bag limit option as the least 
burdensome measure to curtail recreational landings of Gulf group king 
mackerel. The Gulf Council's regulatory impact review (RIR) of the 
measure indicated no expectation for forcing any charter operation to 
cease business. The RIR estimated that the measure would reduce charter 
gross revenues by 3 to 6 percent, possibly changing the cost structure 
and profitability of some charter operations, but not substantially. It 
also projected minimal effects on production and compliance costs and 
estimated a 5 to 7 percent reduction in the crew's gross income.
    Comment: A charter boat captain who represents a Mississippi 
charter boat organization commented that the zero bag limit proposal is 
an inappropriate restriction on the recreational fishery. He cited 
information that suggested Mississippi's recreational fishery is more 
valuable and less destructive than the commercial fishery, which he 
believes will eventually destroy the resource. He recommended that, if 
the zero bag limit proposal is approved, the commercial quota be 
reduced by an amount equivalent to the pounds of king mackerel that 
would have been landed and sold by charter vessels and headboats and, 
hence, would have contributed to filling the commercial quota.
    Response: The only actions available to NMFS under the FMP 
framework procedure are to approve or to disapprove the measures 
proposed by the Councils. Any changes in size limits, seasonal or areal 
closures, quotas, or bag limits must first be proposed by the Councils 
through the framework procedure. The division of total allowable catch 
(TAC) between the recreational and commercial sectors in the form of 
allocations and quotas, respectively, is prescribed by the FMP and can 
be changed only through an FMP amendment. NMFS believes those 
allocations, based on historical landings, represent a fair and 
equitable distribution of TAC among all resource users.

[[Page 23673]]

    Comment: A charter boat captain from central west Florida commented 
that the zero bag limit was discriminatory and inconsistent with the 
Magnuson-Stevens Act and the laws of the United States. He believes 
that denying a king mackerel bag limit to charter vessel and headboat 
captains and crews is inconsistent with national standard four of the 
Magnuson-Stevens Act. He finds the proposal to be unfair to such 
captains and crew considering, in his view, that shrimp trawlers are 
not prohibited by Federal regulations from taking a huge bycatch of 
juvenile king mackerel.
    Response: NMFS does not find the zero bag limit measure to be 
discriminatory or inconsistent with national standard four of the 
Magnuson-Stevens Act or any other applicable Federal law. National 
standard four requires that any allocation or assignment of fishing 
privileges among various U.S. fishermen be fair and equitable to all 
such fishermen, reasonably calculated to promote conservation, and 
carried out so that no particular individual, corporation, or entity 
acquires an excessive share of such privileges. Regarding the 
allocation or assignment of fishing privileges, NMFS finds that the 
measure is fair and equitable to all affected fishermen, reasonably 
calculated to promote conservation, and will help assure that no 
particular individual, corporation, or other entity acquires an 
excessive share of the privilege to harvest Gulf group king mackerel. 
Recreational catch estimates for the 1995/96 fishing year indicate an 
overrun of the recreational allocation that corresponds reasonably with 
the recreational catch reduction projected for the zero bag limit 
measure. The catch estimates also indicate that a substantial portion 
of recent overruns of the recreational allocation for Gulf group king 
mackerel are attributable to increased landings by the charter vessel 
and headboat industry.
    NMFS believes that the subsequent reduction of recreational harvest 
under the zero bag limit measure will provide conservation benefits by 
eliminating or minimizing overrun of the recreational allocation of 
Gulf group king mackerel. Also, the zero retention of Gulf group king 
mackerel for captain and crew while under charter will help maintain or 
restore equity between the private and for-hire sectors in their 
respective harvests under the recreational allocation. Recreational 
catch estimates indicate frequent overrun of the recreational 
allocation in addition to a recent substantial increase in landings by 
the charter vessel and headboat industry.

Commercial Gulf Group King Mackerel Trip Limits: Florida East Coast 
Subzone

    Comment: Two commenters opposed approval of the revisions to the 
trip limits for Gulf group king mackerel harvested in the Florida east 
coast subzone. They believe the revisions were not based on the best 
available scientific information and, if implemented, would lead to 
early closure of the fishery, thus resulting in an inequitable 
geographic distribution of the quota within the subzone, potential 
exclusion of fishermen within the subzone from more lucrative markets 
during the Lenten season, and subsequent economic hardships for some 
fishermen in the subzone. They requested continuation of the status quo 
to allow more time for the Councils to evaluate landings data and 
revise the trip limits for next season, suggesting that a trip limit in 
the 400 pound vicinity would be more appropriate.
    Response: In converting king mackerel trip limits from numbers of 
fish to pounds of fish, the Gulf Council based its selection of the 10-
lb (4.5-kg) conversion factor (weight of average-sized fish) on 
previous decisions and length-weight information available to it at the 
time of its final action. MRFSS data for Gulf group king mackerel 
supported its decision. Moreover, as part of a recent action 
implementing commercial trip limits for Atlantic group king mackerel, 
the Councils, before submitting the proposals for agency review, 
converted the south Florida trip limits from numbers of fish to pounds 
of fish based on an average-sized fish of 10 lb (4.5 kg) (61 FR 48848; 
September 17, 1996). The Councils' selection of an appropriate trip 
limit to optimize the benefits of the quota (e.g., a trip limit that 
will maximize economic returns to fishermen by maintaining an open 
fishery through the Lenten season when ex-vessel prices for fish are 
strong) is a predictive process based on historical data and advice 
from advisory panels and fishermen. NMFS supports and approves the 
Councils' trip limit proposal for the Florida east coast subzone as a 
reasonable measure that will increase the opportunity to harvest the 
quota completely, address socioeconomic needs of participants, and 
protect the resource by curbing the waste of fish from the practice of 
high-grading.

Commercial King Mackerel Trip Limits: Florida West Coast Subzone

    Comment: Twenty-three charter boat and commercial fishermen from 
the Florida Keys opposed approval of the trip limit revisions for the 
Florida west coast subzone (i.e., conversion from numbers of fish to 
pounds of fish). They believe the trip limit changes would decrease 
enforceability, shorten the harvest season, depress king mackerel 
market value, and not preclude high-grading. They requested 
continuation of the current trip limit (125 fish per vessel per day) in 
the belief it would produce a longer harvest season, higher quality 
fish, and higher and more stable prices for fishermen.
    Response: NMFS does not believe that enforcement of the daily trip 
limit will be compromised by the conversion from numbers of fish to 
pounds of fish. The Gulf Council's intention to reduce the waste of 
high-grading was the primary reason for converting trip limits from 
numbers of fish to pounds of fish. However, before taking final action, 
the Council did consider enforcement information indicating that at-sea 
enforcement of either trip limit was equally difficult. The Council 
considered that the inspection time required to unpack fish from ice 
storage, ascertain aggregate number or weight, and repack could cause 
prolonged exposure of the product at ambient temperature leading to 
degraded fish quality. Therefore, dockside enforcement appeared the 
more practical method to enforce trip limits, particularly if state 
regulations were compatible. Florida implemented the 1,250-lb (567-kg) 
trip limit on January 1, 1997.
    Although the revised trip limits based on poundage may not preclude 
high-grading entirely, NMFS believes that they will be more effective 
in minimizing waste and cryptic mortality than limits based on numbers. 
Regarding the issues of a potential shortened harvest season and 
depressed market prices for mackerel, as explained above under a 
response to comments about the changes in the trip limits for the 
Florida east coast subzone, NMFS does not believe that the conversion 
from numbers to pounds for the trip limits for the Florida west coast 
subzone will have these effects. In fact, NMFS believes that the trip 
limit change here should increase the opportunity to harvest the entire 
annual quota and, therefore, bring economic benefits to fishermen. For 
these reasons, NMFS approved this measure.

Miscellaneous Comments

    Comment: One commenter remarked that the July 1 start of the 
fishing year and the Florida west coast subzone quota system for Gulf 
group king mackerel are unfair and discriminatory to fishermen in the 
central area of Florida's west coast. He stated that the

[[Page 23674]]

inability of fishermen in this area to harvest king mackerel during 
spring makes it difficult for them to meet qualifying income 
requirements for state or Federal permits. He believes the 
establishment of a separate subzone quota for Gulf group king mackerel 
for the central west Florida area would be more equitable under the 
Magnuson-Steven Act.
    Response: NMFS offers no response to these comments which are 
outside the scope of this action. However, in developing FMP Amendment 
9, the Councils are considering changes to the Florida west coast quota 
system for Gulf group king mackerel.

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 66008, December 16, 1996) and 
are not repeated here. No comments were received that would change the 
basis for this certification. As a result, a regulatory flexibility 
analysis was not prepared.

List of Subjects in 50 CFR Part 622

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

    Dated: April 25, 1997.
Charles Karnella,
Acting 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. 622.39, paragraph (c)(1)(ii) is revised to read as 
follows:


Sec. 622.39  Bag and possession limits.

* * * * *
    (c) * * *
    (1) * * *
    (ii) Gulf migratory group king mackerel--2, except that for an 
operator or member of the crew of a charter vessel or headboat, the bag 
limit is 0.
* * * * *
    3. In Sec. 622.42, paragraphs (c)(1)(ii) and (c)(2) are revised to 
read as follows:


Sec. 622.42  Quotas.

* * * * *
    (c) * * *
    (1) * * *
    (ii) Atlantic migratory group. The quota for the Atlantic migratory 
group of king mackerel is 2.52 million lb (1.14 million kg). No more 
than 0.4 million lb (0.18 million kg) may be harvested by purse seines.
    (2) Migratory groups of Spanish mackerel--(i) Gulf migratory group. 
The quota for the Gulf migratory group of Spanish mackerel is 3.99 
million lb (1.81 million kg).
    (ii) Atlantic migratory group. The quota for the Atlantic migratory 
group of Spanish mackerel is 3.50 million lb (1.59 million kg).
* * * * *
    4. In Sec. 622.44, paragraphs (a)(2)(i)(A) and (B); 
(a)(2)(ii)(B)(1) and (2); (b)(1)(ii)(A), (B), and (C); and (b)(2) are 
revised to read as follows:


Sec. 622.44  Commercial trip limits.

* * * * *
    (a) * * *
    (2) * * *
    (i) * * *
    (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 750 lb (340 kg) 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 500 lb (227 kg) per day. However, if 75 percent 
of the subzone's quota has not been harvested by February 15, the 
vessel limit remains at 750 lb (340 kg) per day until the subzone's 
quota is filled or until March 31, whichever occurs first.
    (ii) * * *
    (B) * * *
    (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 1,250 lb (567 kg) 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 fishery for vessels fishing with hook-and-line gear has been 
effected under Sec. 622.43(a)--in amounts not exceeding 500 lb (227 kg) 
per day.
* * * * *
    (b) * * *
    (1) * * *
    (ii) * * *
    (A) From April 1 through October 31, in amounts exceeding 1,500 lb 
(680 kg).
    (B) From November 1 until 75 percent of the adjusted quota is 
taken, in amounts as follows:
    (1) Mondays, Wednesdays, and Fridays--unlimited.
    (2) Tuesdays, Thursdays, Saturdays, and Sundays--not exceeding 
1,500 lb (680 kg).
    (C) After 75 percent of the adjusted quota is taken until 100 
percent of the adjusted quota is taken, in amounts not exceeding 1,500 
lb (680 kg).
* * * * *
    (2) For the purpose of paragraph (b)(1)(ii) of this section, the 
adjusted quota is 3.25 million lb (1.47 million kg). The adjusted quota 
is the quota for Atlantic migratory group Spanish mackerel reduced by 
an amount calculated to allow continued harvests of Atlantic migratory 
group Spanish mackerel at the rate of 500 lb (227 kg) per vessel per 
day for the remainder of the fishing year after the adjusted quota is 
reached. By filing a notification with the Office of the Federal 
Register, the Assistant Administrator will announce when 75 percent and 
100 percent of the adjusted quota is reached or is projected to be 
reached.
* * * * *
[FR Doc. 97-11362 Filed 4-30-97; 8:45 am]
BILLING CODE 3510-22-F