[Federal Register Volume 86, Number 88 (Monday, May 10, 2021)]
[Rules and Regulations]
[Pages 24742-24745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09851]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 210504-0099]
RIN 0648-BK22


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Dolphin and Wahoo Fishery of the Atlantic; Amendment 12

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

ACTION: Final rule.

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SUMMARY: NMFS issues regulations to implement Amendment 12 to the 
Fishery Management Plan (FMP) for the Dolphin and Wahoo Fishery of the 
Atlantic (Dolphin Wahoo FMP), as prepared and submitted by the South 
Atlantic Fishery Management Council (Council). This final rule adds 
bullet mackerel and frigate mackerel to the Dolphin Wahoo FMP and 
designates them as ecosystem component (EC) species. The purpose of 
this final rule and Amendment 12 is to acknowledge the ecological role 
of bullet mackerel and frigate mackerel as forage fish and to achieve 
the ecosystem management objectives in the Dolphin Wahoo FMP.

DATES: This final rule is effective June 9, 2021.

ADDRESSES: Electronic copies of Amendment 12, which includes a fishery 
impact statement and a regulatory impact review, may be obtained from 
the Southeast Regional Office website at https://www.fisheries.noaa.gov/action/amendment-12-add-bullet-mackerel-and-frigate-mackerel-ecosystem-component-species.

FOR FURTHER INFORMATION CONTACT: Nikhil Mehta, telephone: 727-824-5305, 
or email: [email protected].

SUPPLEMENTARY INFORMATION: The dolphin and wahoo fishery of the 
Atlantic is managed under the FMP. The FMP was prepared by the Council 
and implemented through regulations at 50 CFR part 622 under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act).
    On January 29, 2021, NMFS published a notice of availability for 
Amendment 12 and requested public comment (86 FR 7524). NMFS approved 
Amendment 12 on April 26, 2021. On March 2, 2021, NMFS published a 
proposed rule for Amendment 12 and requested public comment (86 FR 
12166). The proposed rule and Amendment 12 outline the rationale for 
the actions contained in this final rule. A summary of the management 
measures described in Amendment 12 and implemented by this final rule 
is described below.

Background

    The Council manages dolphin and wahoo under the Dolphin Wahoo FMP 
in Federal waters off the Atlantic states from Maine south to the 
Florida Keys in the Atlantic. In the western North Atlantic, bullet 
mackerel are found from Cape Cod to the Gulf of Mexico, and frigate 
mackerel are found mostly from North Carolina to Florida. As described 
in Amendment 12, both bullet mackerel and frigate mackerel are found in 
the diets of dolphin and wahoo in the North Atlantic. In particular, 
wahoo has been demonstrated to have a strong dietary reliance on bullet 
mackerel and frigate mackerel, indicating that these mackerel species 
are the most dominant forage species observed in the diets of wahoo. 
Dolphin tend to have more diverse diets than wahoo and have a lower 
reliance on these mackerel species as prey. Additionally, bullet 
mackerel and frigate mackerel have been identified as important forage 
species for other offshore pelagic predatory species in the Atlantic 
such as blue marlin and yellowfin tuna. Bullet mackerel feed on a 
variety of prey, especially clupeoids (i.e., herrings and sardines), 
crustaceans, and squids. Frigate mackerel feed on a variety of fish, 
squid, and small crustaceans. Therefore, given their presence as a 
common forage fish and

[[Page 24743]]

prey food source, bullet mackerel and frigate mackerel are an important 
component of the marine environment in the Atlantic. There is no stock 
assessment for dolphin, wahoo, bullet mackerel, or frigate mackerel. In 
Atlantic Federal waters, dolphin and wahoo are targeted both 
commercially and recreationally. Annual reported commercial and 
recreational landings of bullet mackerel and frigate mackerel are low 
along the entire Atlantic coastline.
    Regulations implemented under the Magnuson-Stevens Act define EC 
species as ``stocks that a Council or the Secretary has determined do 
not require conservation and management, but desire to list in a FMP in 
order to achieve ecosystem management objectives'' (50 CFR 
600.305(d)(13)). National Standards (NS) General guidelines state that 
a Council should consider a non-exhaustive list of 10 factors when 
deciding whether additional stocks require Federal conservation and 
management (50 CFR 600.305(c)(1)). The EC designation for bullet 
mackerel and frigate mackerel was recommended to the Council by the 
Council's Scientific and Statistical Committee (SSC), their Dolphin 
Wahoo Advisory Panel (AP), and the Habitat Protection and Ecosystem-
Based Management (Habitat) AP, and received extensive positive comments 
from the public during scoping of Amendment 12. The Dolphin Wahoo AP 
and Habitat AP members acknowledged that wahoo, in particular, target 
these mackerel species as prey. The AP members also stated that the 
Council should consider a conservative approach to ensure there are no 
major increases in the harvest of bullet mackerel and frigate mackerel 
in the foreseeable future as a result of any EC designation. This 
designation addresses the Council's growing emphasis on developing 
ecosystem management approaches to fisheries management and advancing 
ecosystem management objectives in the Dolphin Wahoo FMP.
    The extent to which the low landings of bullet mackerel and frigate 
mackerel occur within the dolphin and wahoo fishery is unknown; 
however, it is unlikely that these species are often harvested in 
conjunction with efforts to target dolphin and wahoo, especially in the 
commercial sector. Bullet and frigate mackerel have largely been landed 
commercially in the Mid-Atlantic region using gill net, pound net, 
float trap, and otter trawl gear, none of which are allowable gear 
types in the dolphin and wahoo fishery. Recreational landings of bullet 
and frigate mackerel have largely occurred in the South Atlantic 
Region, with some limited catches reported from the Mid-Atlantic 
Region. Furthermore, recreational fishermen have also noted that these 
species are used as bait for tuna and billfish, such as blue marlin. 
NMFS and the Council have determined that bullet mackerel and frigate 
mackerel are currently not in need of conservation and management, 
making them eligible for consideration as EC species. This eligibility 
determination was done after consideration of the provisions within the 
NS Guidelines and requirements of the Magnuson-Stevens Act. 
Furthermore, adding bullet mackerel and frigate mackerel to the Dolphin 
Wahoo FMP as EC species meets the FMP's ecosystem management objectives 
(50 CFR 600.305(c)(5) and 600.310(d)(1)).

Management Measures Contained in This Final Rule

    This final rule adds bullet mackerel and frigate mackerel to the 
Dolphin Wahoo FMP and designates them as EC species. This final rule 
adds no additional management measures to the Dolphin Wahoo FMP as a 
result of this EC species designation, either for bullet mackerel and 
frigate mackerel, or for dolphin and wahoo.
    The final rule is expected to result in potential indirect benefits 
such as increased awareness among the fishermen, fishing communities, 
data collecting agencies, and regulatory entities managing dolphin, 
wahoo, bullet mackerel, and frigate mackerel. If landings for these two 
mackerel species were to greatly increase in the future to 
unsustainable levels, fisheries managers could be made aware of the 
changing stock status before the stocks are depleted, which may have 
subsequent beneficial effects on populations of several economically 
important predatory fish species, including dolphin, wahoo, blue 
marlin, and yellowfin tuna.

Comments and Responses

    NMFS received 24 comments during the public comment period on the 
notice of availability and proposed rule for Amendment 12. Comment 
submissions were from the general public, sport-fishing associations, 
and non-governmental organizations. The majority of the comments were 
in support of adding bullet mackerel and frigate mackerel to the 
Dolphin Wahoo FMP as EC species. NMFS acknowledges the comments in 
favor of the action in the notice of availability and proposed rule and 
agrees with them. One comment was outside the scope of Amendment 12 and 
is not responded to in this final rule. Comments in opposition and that 
requested additional information about the action contained in the 
notice of availability and proposed rule are summarized below, along 
with NMFS' responses.
    Comment 1: NMFS and the Council should consider more proactive 
methods of monitoring the conditions of bullet and frigate mackerel and 
collect more data to study abundance and population trends.
    Response: NMFS agrees that more data would aid in obtaining a 
better understanding of abundance and population trends for bullet 
mackerel and frigate mackerel. However, these species are not directly 
targeted by commercial and recreational fishers in the Atlantic. 
Commercial landings of bullet mackerel and frigate mackerel have been 
variable, but typically are relatively low, averaging 4,395 lb (1,994 
kg), round weight, annually over the past 20 years of available data 
(1999 through 2018), 1,569 lb, (712 kg), round weight, annually over 
the past 10 years (2009 through 2018), and 1,939 lb (880 kg), round 
weight, over the past 5 years (2014 through 2018). Recreational 
landings have been variable and sporadic, averaging 1,189 lb (539 kg), 
round weight, for bullet mackerel, and 3,569 lb (1,619 kg), round 
weight, for frigate mackerel annually over the past 20 years of 
available data (1999 through 2018).
    In terms of data collection, vessels with Federal commercial 
dolphin wahoo permits already report all landings that are sold to a 
federally permitted dealer, including species that are not federally 
managed. Beginning January 4, 2020, the final rule for the South 
Atlantic for-hire electronic reporting program requires that federally 
permitted for-hire snapper-grouper, dolphin wahoo, and coastal 
migratory pelagic vessels in the Atlantic report all landings including 
species that are not subject to Federal management (85 FR 47917; August 
7, 2020). The Marine Recreational Information Program captures 
information on all species caught by recreational fishers. Furthermore, 
North Carolina has introduced fish identification codes in its state 
trip ticket forms for these mackerel species since 2018. Public 
education and awareness of the EC designation may encourage fishers to 
report landings of these two mackerel species more than before, thereby 
providing more data. If landings for bullet mackerel and frigate 
mackerel were to increase in the future, further proactive and active 
measures within the Council's jurisdiction could be explored in a 
future amendment.

[[Page 24744]]

    Comment 2: The proposed rule does not achieve the stated purpose of 
Amendment 12 to provide awareness regarding bullet mackerel and frigate 
mackerel, and is a waste of taxpayer dollars. If there are no benefits 
for the dolphin and wahoo fishery from this action, then it would make 
sense that there should be no cost, or at least minimal cost, for this 
proposed rule. However, NMFS calculates an estimated cost of $34,499.00 
for an action that will have no benefits.
    Response: NMFS disagrees that there are no benefits to the action. 
The purpose of Amendment 12 and its rulemaking is to acknowledge the 
ecological role of bullet mackerel and frigate mackerel as forage fish 
by adding them to the Dolphin Wahoo FMP as EC species. Peer-reviewed 
scientific studies have found scombrids such as bullet mackerel and 
frigate mackerel are the dominant prey (43.7 percent frequency of 
occurrence and 41.7 percent by mass) in wahoo diets, showing that a 
wahoo have a high reliance on scombrids and suggesting that wahoo 
specialize on this prey group, just as they do in other regions 
throughout their range. Bullet and frigate mackerel are also important 
in the diets of dolphin, blue marlin, and yellowfin tuna. The action in 
Amendment 12 brings awareness among the fishers, fishing communities, 
data collecting agencies, and regulatory entities managing dolphin, 
wahoo, bullet mackerel, and frigate mackerel. As noted in the response 
to Comment 1, there is very little interest among fishers in these two 
mackerel species at present, but, if they were to be targeted in the 
future, adding them in the FMP as EC species will aid in considering 
other measures in a future action, if warranted. Indeed, the Mid-
Atlantic Fishery Management Council has discussed plans to establish 
possession limits for bullet mackerel and frigate mackerel. In the 
western Atlantic, bullet mackerel are found from Cape Cod to the Gulf 
of Mexico and feed on a variety of prey, especially clupeoids (i.e., 
herrings and sardines), crustaceans, and squids. Frigate mackerel are 
mostly found from North Carolina to Florida and feed on a variety of 
fish, squids, and small crustaceans. By acknowledging the role of 
bullet mackerel and frigate mackerel in the ecosystem as forage fish, 
implementation of Amendment 12 will increase ecosystem-wide awareness. 
NMFS and the Council determined that bullet mackerel and frigate 
mackerel are currently not in need of conservation and management, and, 
as such, are eligible for consideration as EC species under provisions 
found within the NS Guidelines (50 CFR 600.305(c)(1)), in compliance 
with the requirements of the Magnuson-Stevens Act and other applicable 
laws.
    There are no expected notable effects for the dolphin and wahoo 
fishery from this action, because bullet mackerel and frigate mackerel 
are not targeted in this fishery, and are not caught by the gear 
authorized in the dolphin and wahoo fishery. Landings for these species 
have been very low over the last 20 years (see response to Comment 1). 
Bullet mackerel and frigate mackerel have largely been landed 
commercially in the Mid-Atlantic region using gill net, pound net, 
float trap, and otter trawl gear, none of which are allowable gear 
types in the dolphin and wahoo fishery. Recreational catches of bullet 
mackerel and frigate mackerel have largely occurred in the South 
Atlantic Region, with some limited catches reported from the Mid-
Atlantic Region. Also, recreational fishers have noted that these 
species are used as bait.
    NMFS conducted an economic analysis for Amendment 12 to comply with 
Executive Order (E.O.) 12866. The analysis estimated costs resulting 
from this action in the amount of $34,499.00 (2018 dollars), which are 
considered minimal. This estimate represents the administrative costs 
to the Council and NMFS associated with Amendment 12 and this 
rulemaking as there are no direct costs to the private sector.
    In addition, while this final rule is not expected to result in any 
direct benefits, it is expected to result in indirect benefits. 
Consistent with Circular A-4 from the Office of Management and Budget, 
which provides guidance on how to conduct analyses to comply with E.O. 
12866, the analysis should consider favorable effects from the rule 
that are typically unrelated or secondary to the purpose of the 
rulemaking. If it is not feasible to monetize or quantify such effects, 
they should at least be considered qualitatively. As discussed in 
Amendment 12, indirect economic benefits are expected to arise from 
designating bullet and frigate mackerel as EC species by enhancing 
public education and awareness of these species, which in turn is 
expected to improve data reporting and monitoring of landings. If 
landings for the two mackerel species greatly increase in the future to 
unsustainable levels, fisheries managers could be made aware before the 
stocks are depleted. The ability to preclude such stock depletions is 
expected to indirectly benefit fisheries for several economically 
important predatory fish species in the future, including dolphin and 
wahoo. These indirect benefits were determined to outweigh the minimal 
administrative costs that have already been largely incurred by the 
Council and NMFS, and therefore this regulatory action is expected to 
increase net benefits to the Nation.
    Comment 3: Lower landing rates for both bullet mackerel and frigate 
mackerel are not just because of less interest in fishing for these 
species. Rather, the population of these species has decreased 
drastically.
    Response: NMFS disagrees. There is no stock assessment available 
for bullet mackerel or frigate mackerel. Therefore, it is not possible 
to determine if the populations have decreased or increased in a manner 
that would negatively or positively affect their stock status. As 
mentioned in responses to Comments 1 and 2, these species are typically 
caught incidentally to other species and are not the targets of a 
directed fishery, which is consistent with the low levels of landings. 
Adding bullet mackerel and frigate mackerel to the Dolphin Wahoo FMP 
does meet ecosystem management objectives (50 CFR 600.305(d)(13)). The 
EC designation recognizes the ecosystem role of these mackerel species 
as prey for many economically important species such as wahoo and other 
billfish. Increased awareness of the importance of these species could 
aid in more data reporting and collection, which would help towards any 
possible future stock assessment, if necessary.

Classification

    Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS 
Assistant Administrator has determined that this final rule is 
consistent with Amendment 12, the Dolphin Wahoo FMP, other provisions 
of the Magnuson-Stevens Act, and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Magnuson-Stevens Act provides the legal basis for this final 
rule. No duplicative, overlapping, or conflicting Federal rules have 
been identified. In addition, no new reporting and record-keeping 
requirements are introduced by this final rule. This final rule 
contains no information collection requirements under the Paperwork 
Reduction Act of 1995. A description of this final rule, why it is 
being considered, and the purposes of this final rule are contained in 
the preamble and in the SUMMARY section of this final rule. The 
objective of this final rule is to acknowledge the ecological role of 
bullet mackerel and frigate mackerel as forage fish in general and 
specifically as prey for wahoo.

[[Page 24745]]

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) during the proposed rule stage that this rule 
would not have a significant economic impact on a substantial number of 
small entities. The factual basis for the certification was published 
in the proposed rule and is not repeated here. NMFS did not receive any 
comments from SBA's Office of Advocacy or the public regarding the 
certification in the proposed rule. NMFS received one public comment on 
the economic analysis in Amendment 12; see Comment #2 in the preamble. 
No changes to this final rule were made in response to public comments. 
As a result, a final regulatory flexibility analysis was not required 
and none was prepared.

List of Subjects in 50 CFR Part 622

    Atlantic, Dolphin, Ecosystem species, Fisheries, Fishing, Wahoo.

    Dated: May 5, 2021.
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. Add Table 6 to appendix A to part 622 to read as follows:

Appendix A to Part 622--Species Tables

* * * * *

Table 6 of Appendix A to Part 622--Atlantic Dolphin and Wahoo

Dolphin, Coryphaena equiselis or Coryphaena hippurus Wahoo, 
Acanthocybium solandri

    The following species are designated as ecosystem component 
species:

Bullet mackerel, Auxis rochei
Frigate mackerel, Auxis thazard

[FR Doc. 2021-09851 Filed 5-7-21; 8:45 am]
BILLING CODE 3510-22-P