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

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

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

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

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.

* * * * * (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

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