[Federal Register Volume 84, Number 189 (Monday, September 30, 2019)]
[Rules and Regulations]
[Pages 51435-51438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21127]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 190924-0037]
RIN 0648-BJ19


Temporary Rule To Increase the Commercial Trip Limit for Atlantic 
King Mackerel

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

ACTION: Final temporary rule; emergency action.

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SUMMARY: NMFS issues this emergency action, a final temporary rule to 
revise the Atlantic migratory group king mackerel (Atlantic king 
mackerel) commercial trip limit within the Atlantic southern zone from 
October 1, 2019, through February 29, 2020, as requested by the South 
Atlantic Fishery Management Council (Council). The purpose of this 
final temporary rule is to increase the commercial trip limit to allow 
for a significant economic opportunity that otherwise would be forgone 
and relieve an economic burden within the Atlantic king mackerel 
commercial sector without increasing the risk to the stock.

DATES: This temporary rule is effective October 1, 2019, through 
February 29, 2020.

ADDRESSES: Electronic copies of the documents in support of this 
emergency rule, which includes the Council's letter to NMFS that 
contains the Council's rationale for the emergency action request may 
be obtained from the Southeast Regional Office website at https://www.fisheries.noaa.gov/action/emergency-rule-king-mackerel-trip-limits.

FOR FURTHER INFORMATION CONTACT: Karla Gore, NMFS Southeast Regional 
Office, telephone: 727-551-5753, or email: [email protected].

SUPPLEMENTARY INFORMATION: The coastal migratory pelagics fishery is 
managed under the Fishery Management Plan for Coastal Migratory Pelagic 
Resources in the Gulf of Mexico and Atlantic Region (FMP) and includes 
king mackerel and Spanish mackerel and, in the Gulf of Mexico, cobia. 
The FMP was prepared by the Gulf of Mexico Fishery Management Council 
and the Council and is implemented by NMFS through regulations at 50 
CFR part 622 under authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). The Magnuson-
Stevens Act provides the legal authority for the promulgation of 
emergency regulations under section 305(c)(16 U.S.C. 1855(c)).

Background

    The fishery for Atlantic king mackerel is divided into a northern 
zone and a southern zone in the exclusive economic zone (EEZ), with the 
quota for this migratory group divided between the two zones. The 
northern zone extends from the North Carolina/South Carolina boundary 
through New York, and the southern zone extends from the North 
Carolina/South Carolina boundary to the Miami-Dade/Monroe County, 
Florida, boundary. The fishing year for the commercial sector for 
Atlantic king mackerel is March 1 through the end of February. The 
quota for the southern zone is allocated between two commercial 
seasons. Season 1 allocates 60 percent of the quota from March 1 
through September 30, and Season 2 allocates 40 percent of

[[Page 51436]]

the quota from October 1 through the end of February. Any unused quota 
from Season 1 transfers during the current fishing year to Season 2, 
with no provision allowing the carryover of any unused quota at the end 
of Season 2. When the quota for a season is reached or expected to be 
reached, commercial harvest of king mackerel in the Atlantic southern 
zone is prohibited for the remainder of that season.
    The trip limit system for the southern zone includes a 3,500 lb 
(1,588 kg) year-round trip limit north of the Flagler/Volusia County, 
FL, boundary. For the area between the Flagler/Volusia County, FL, 
boundary, and the Miami-Dade/Monroe County, FL, boundary, the trip 
limit is 50 fish during Season 2 from October 1 through January 31. The 
trip limit remains at 50 fish during the month of February, unless NMFS 
determines that less than 70 percent of the commercial quota for the 
southern zone's second season has been landed. In that case, NMFS 
announces the trip limit increase to 75 fish in the Federal Register.
    The Southeast Data, Assessment, and Review (SEDAR) 38 stock 
assessment (SEDAR 38; September 2014) indicated that neither the 
Atlantic nor Gulf king mackerel migratory groups were overfished or 
undergoing overfishing. With the implementation of Amendment 26 to the 
FMP (68 FR 17387; April 11, 2017), the southern zone quota increased 
from the initial 2,587,960 lb (1,173,879 kg) to 5,002,400 lb (2,269,050 
kg) in 2016-2017, and was set at 4,450,640 lb (2,059,600 kg) in 2017-
2018, 4,001,920 lb (1,185,240 kg) in 2018-2019, and 3,617,120 lb 
(1,640,698 kg) in 2019-2020.
    In March 2019, the Council voted to begin developing Framework 
Amendment 8 to the FMP to address stakeholder concerns about the 50-
fish Season 2 trip limit. Stakeholders and members of the Council's 
Mackerel Cobia Advisory Panel (AP) indicated that the current 50-fish 
Season 2 trip limit is a factor in preventing commercial king mackerel 
fishermen from catching the Season 2 quota or achieving optimum yield 
(OY). While commercial landings have increased slightly in recent 
years, during Season 2 the vessels that are capable of landing more 
than the trip limit are unnecessarily limited because of the lower trip 
limit. The AP discussed these problems at its April 2019 meeting and 
reviewed new information showing how much of the quota is not being 
harvested since the implementation of the 50-fish Season 2 trip limit 
in May 2017. After discussion, the AP voted to recommend that the 
Council consider emergency action for 2019 to raise the trip limit 
south of the Flagler/Volusia County, FL, boundary from 50 to 75 fish 
beginning in October, the start of Season 2. The Council discussed the 
AP's recommendation at their June 2019 meeting and heard public 
testimony supporting the emergency action. They reviewed new 
information showing how much of the Season 2 quota has not been 
harvested the last several years by the commercial sector. For example, 
Season 2 preliminary landings are 710,729 lb (322,381 kg) for the 2017-
2018 fishing year and 929,000 lb (421,387 kg) for the 2018-2019 fishing 
year, and the unadjusted quota was 1,600,768 lb (726,096 kg). The 
Council was also presented with new preliminary information that showed 
the estimated average value of the unharvested southern zone quota was 
over 5 million dollars for the 2017-2018 fishing year and over 3 
million dollars for the 2018-2019 fishing year. After reviewing all of 
the information, the Council voted 12-1 in favor of an emergency rule 
under the Magnuson-Stevens Act to increase the trip limit for Season 2 
to 75 fish. On June 21, 2019, the Council sent NMFS a letter requesting 
an emergency rule to increase the 2019-2020 fishing year's Season 2 
commercial trip limit for king mackerel.

Justification for Emergency Action

    NMFS' Policy Guidelines for the Use of Emergency Rules (62 FR 
44421; August 21, 1997) list three criteria for determining whether an 
emergency exists, and this temporary rule is promulgated under these 
guidelines and meets each of these three criteria. Specifically, NMFS' 
policy guidelines require that an emergency: (1) Results from recent, 
unforeseen events or recently discovered circumstances; (2) presents 
serious conservation or management problems in the fishery; and (3) can 
be addressed through emergency regulations for which the immediate 
benefits outweigh the value of advance notice, public comment, and 
deliberative consideration of the impacts on participants to the same 
extent as would be expected under the normal rulemaking process.
    At their June 2019 meeting, the Council reviewed recent preliminary 
landings estimates showing that a large percentage of the southern zone 
quota was not being harvested. The trip limit system and split season 
structure for the southern zone were implemented on May 11, 2017, 
through Amendment 26 to the FMP. One purpose of Amendment 26 was to 
increase the social and economic benefits of the fishery. The primary 
function of the split season structure and trip limit system was to 
ensure the longest commercial fishing season possible for Atlantic king 
mackerel and to provide continued access throughout the fishing year to 
commercial king mackerel fishermen. However, during public comment at 
the June 2019 Council meeting, commercial king mackerel fishermen told 
the Council that when they fish south of the Flagler/Volusia County, 
FL, boundary, because of the low trip limit they are unable to carry 
their usual amount of crew, they operate less efficiently, and they are 
unable to fully utilize the available resource. The Council discussed 
the fishermen's concerns and these unforeseen negative consequences of 
the Season 2 trip limit, including the estimated value of the 
unharvested quota. The Council determined that an emergency rule to 
increase the trip limit was necessary to prevent further unnecessary 
economic losses and would substantially increase the likelihood of 
achieving OY in the fishery for the 2019-2020 fishing year. Framework 
Amendment 8 is in the early stages of development by the Council and 
cannot be implemented in time for the October 1, 2019, beginning of 
Season 2 for the 2019-2020 fishing year. Waiting for implementation of 
Framework Amendment 8 would preclude a significant economic opportunity 
that could otherwise be realized in the 2019-2020 fishing year under an 
emergency rule.
    An emergency rule could provide for a temporary increase in the 
trip limit that would allow fishermen to increase their trip efficiency 
and avoid further unnecessary economic harm and related social 
problems, while the Council works on providing a permanent solution 
through the development of Framework Amendment 8. The emergency rule 
would not increase the overall Season 2 commercial quota or ACL for 
king mackerel, but it would allow fishermen more opportunity to harvest 
the quota and to achieve OY. The Council and NMFS expect that, since 
commercial king mackerel landings have not reached the southern zone 
quota in recent years, increasing the trip limit from 50 to 75 fish in 
the southern zone south of Flagler/Volusia County, FL, for Season 2 
would be unlikely to result in an early commercial closure, given the 
expected level of commercial effort during Season 2, including the 
anticipated increased effort resulting from this emergency rule. In 
addition, the current ACL and accountability measures would continue

[[Page 51437]]

to constrain harvest and prevent overfishing.
    NMFS has determined that modifying the 2019-2020 Season 2 
commercial trip limit as described above meets the three criteria 
required for an emergency rule. The Council requested this emergency 
rule, a final temporary rule, in response to recently discovered and 
unforeseen negative consequences of the commercial trip limit system 
for Atlantic king mackerel put in place through Amendment 26 that 
present a serious management problem in this fishery. In recent years, 
the king mackerel commercial quota for the Atlantic southern zone has 
not been harvested. In the 2018-2019 fishing year, only approximately 
59 percent of the quota was harvested. The value of unharvested 
commercial quota for the Atlantic southern zone over the last four 
fishing seasons averages $3,880,961 per season. The unharvested quota 
of king mackerel in the Atlantic southern zone represents a significant 
value of catch unavailable to fishing communities from trip limits that 
are unnecessarily restricting harvest well below the allowable quota. 
The current trip limit of 50 fish in Season 2 for the southern zone 
south of Flagler/Volusia County, FL, results in a loss of significant 
economic opportunity, because vessels that are capable of landing more 
than 50 fish are unnecessarily limited by the lower trip limit.
    NMFS expects 102 vessels that make 593 (28.7 percent) of the 
affected trips to benefit from the increased trip limit, with an 
average increase of dockside revenue of $203.81 (2017 dollars) per 
trip, and an increase in the total dockside revenue for those trips, 
combined, of approximately $120,859. Additionally, this rule changes 
the February 2020 commercial trip limit, currently at 75 fish if less 
than 70 percent of the quota is reached, and 50 fish after 70 percent 
of the quota is reached, to 75 fish in February regardless of the 
percentage of the quota reached. Not revising the trip limit system for 
the Atlantic southern zone during Season 2 of the 2019-2020 fishing 
year would result in unnecessary limits on landings and associated 
dockside revenues because of unharvested quota, and most likely would 
preclude achievement of OY.
    Unnecessarily low trip limits are affecting these vessels' ability 
to operate efficiently, and reduced dockside revenues per trip have 
negative indirect economic effects, such as significantly reduced 
incomes for vessel owners and crew. The current trip limit system is 
causing undue hardship on fishing communities reliant upon the king 
mackerel resource along the east coast of Florida, specifically, south 
of Flagler/Volusia County, FL, to the Miami-Dade/Monroe County, FL, 
boundary. NMFS expects an increase in the Season 2 trip limit for the 
2019-2020 fishing year to provide immediate direct economic and social 
benefits to commercial king mackerel fishermen operating in this area 
by allowing for increased landings and thereby increasing trip 
revenues. Additionally, larger trip limits that result in increased 
revenues to vessels have positive economic impacts, such as increased 
incomes to owners and crew, more job opportunities for vessel crew, and 
more king mackerel available to processors, dealers and consumers.
    The benefits to the king mackerel fishermen of using an emergency 
action to increase the trip limit for Season 2 in the 2019-2020 fishing 
year outweigh the value of taking the time necessary to complete 
normal, notice-and-comment rulemaking. Season 2 begins on October 1, 
2019, and Framework Amendment 8 to the FMP, which the Council is 
developing to make more permanent modifications to the Season 2 trip 
limit measures, will not be completed and implemented during 2019. As a 
result, neither the upcoming Framework Amendment 8 and its required 
notice-and-comment rulemaking process would allow for an increase in 
the trip limit in time to apply to Season 2 of the 2019-2020 fishing 
year. Thus, using the notice-and-comment rulemaking process instead of 
an emergency action would unnecessarily prevent the economic gains to 
fishing industry participants and communities for the upcoming season. 
During the June 2019 Council meeting held in Stuart, FL, nearly 40 
individuals commented during the public comment session, and most of 
them spoke in support of increasing the trip limit. In addition, this 
emergency action is temporary. In developing any future, more permanent 
trip limit measures through Framework Amendment 8, the Council process 
will provide ample opportunity for notice and comment and full public 
participation.

Management Measure Contained in This Temporary Rule

    This final temporary rule revises the Atlantic king mackerel 
commercial trip limit in the southern zone south of Flagler/Volusia 
County, FL, to the Miami-Dade/Monroe County, FL, boundary during Season 
2 for the commercial sector. The current 50-fish commercial trip limit 
will be increased to 75 fish from October 1, 2019, through February 29, 
2020, between the Flagler/Volusia County, FL, boundary, and the Miami-
Dade/Monroe County, FL, boundary. For the month of February, this 
temporary rule will remove the trip limit reduction measures of 75 to 
50 fish when 70 percent of the quota is reached to maintaining 75 fish 
for the entire month of February, or until the total quota is reached. 
Implementing this measure through emergency action will allow for 
increased economic and harvest opportunities that would otherwise not 
be realized by fishing industry participants and communities in the 
upcoming season, while the Council continues development of long-term 
measures to address commercial trip limits in Framework Amendment 8. 
The Council is currently planning to finalize Framework Amendment 8 in 
December 2019, and will subsequently submit it for Secretarial review 
and rulemaking.
    NMFS issues this final temporary rule without opportunity for prior 
notice and public comment. While an emergency action through the 
Magnuson-Stevens Act may be implemented for an initial period of 180 
days and then subsequently extended for up to another 186 days, NMFS 
does not expect that to occur for this action. Given the limited scope 
of this action to only be effective from October 2019 through February 
2020, no extension of these emergency measures is necessary or 
expected.

Classification

    This action is issued pursuant to section 305(c) of the Magnuson-
Stevens Act, 16 U.S.C. 1855(c). The Assistant Administrator for 
Fisheries, NOAA, has determined that this emergency action is 
consistent with the Magnuson-Stevens Act, the FMP, and other applicable 
law. This action is being taken pursuant to the emergency provisions of 
the Magnuson-Stevens Act and is exempt from Office of Management and 
Budget (OMB) review.
    The Assistant Administrator for Fisheries, NOAA, finds good cause, 
pursuant to 5 U.S.C. 553(b)(B), to waive prior notice and the 
opportunity for public comment as impracticable and contrary to the 
public interest. Providing prior notice and opportunity for public 
comment would preclude implementing the higher trip limit in time for 
the start of Season 2 on October 1, 2019. Notice-and-comment rulemaking 
is contrary to the public interest in these circumstances. This final 
temporary rule allows for a significant economic opportunity that 
otherwise would be forgone, and relieves an economic burden within the 
Atlantic king mackerel commercial sector without increasing the risk to 
the stock. This emergency action increases

[[Page 51438]]

the commercial trip limit for Atlantic king mackerel from 50 fish to 75 
fish from October 2019 through January 2020, in Federal waters from the 
Flagler/Volusia County, FL, boundary to the Miami-Dade/Monroe County, 
FL, boundary. One hundred and two vessels that make 28.7 percent of the 
trips are expected to benefit, with an average increase of dockside 
revenue of $203.81 per trip (2017 dollars) for 593 trips, and an 
increase in total dockside revenue for those trips combined 
approximately by $120,859. This rule also changes the February 2020 
commercial trip limit from the Flagler/Volusia County, FL, boundary to 
the Miami-Dade/Monroe County, FL, boundary, which is presently at 75 
fish if less than 70 percent of the Season 2 quota is reached and 50 
fish after 70 percent of the quota is reached, to 75 fish regardless of 
the percentage of the quota reached. Because 70 percent of the quota 
has not been reached since implementation of the current trip limit, 
the limit in February has essentially been at 75 fish. Consequently, no 
changes in February landings are expected. The current ACL and 
accountability measures will continue to constrain commercial harvest 
and prevent overfishing, and no adverse effects to the king mackerel 
resource are expected to occur as a result of the increased trip limit.
    For these same reasons, the AA also finds good cause under 5 U.S.C. 
553(d)(3) to waive the 30-day delay in the date of effectiveness of the 
action. Also, because this measure increases the current Season 2 trip 
limit, it relieves a restriction, and therefore it also falls within 
the 5 U.S.C. 553(d)(1) exception to the 30-day delay in the date of 
effectiveness requirement. Additionally, if the increased trip limit is 
not in effect by the start of Season 2, October, 1, 2019, then the 
benefits of this action would be reduced and the full economic 
opportunities that are anticipated would not be realized. A reduction 
of expected benefits would also be contrary to the intent of the 
Council.
    This emergency rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is not subject to the requirement to 
provide prior notice and opportunity for public comment pursuant to 5 
U.S.C. 553 or any other law. Accordingly, no regulatory flexibility 
analysis is required and none has been prepared.

List of Subjects in 50 CFR Part 622

    Atlantic, Commercial, Fisheries, Fishing, King mackerel, Trip 
limits.

    Dated: September 24, 2019.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, 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 OF MEXICO, AND SOUTH 
ATLANTIC

0
1. The authority citation for part 622 continues to read as follows:

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


0
2. In Sec.  622.385, suspend paragraphs (a)(1)(ii)(C) and (D), and 
(a)(1)(iii)(C) and (D), and add paragraphs (a)(1)(ii)(E), and 
(a)(1)(iii)(E) to read as follows:


Sec.  622.385  Commercial trip limits.

* * * * *
    (a) * * *
    (1) * * *
    (ii) * * *
    (E) From October 1 through the end of February--75 fish.
    (iii) * * *
    (E) From October 1 through the end of February--75 fish.
* * * * *

[FR Doc. 2019-21127 Filed 9-27-19; 8:45 am]
 BILLING CODE 3510-22-P