Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 204 and 642

[Docket No. 940553-4223; I.D. 050394A]

RIN 0648-AE98

Coastal Migratory Pelagic Resources of the Gulf of Mexico and

South Atlantic

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement Amendment 7 to the

Fishery Management Plan for the Coastal Migratory Pelagic Resources of

the Gulf of Mexico and South Atlantic (FMP). Amendment 7 divides the

eastern zone commercial quota for the Gulf migratory group of king

mackerel into equal quotas for the Florida east and west coast

fisheries, further divides the quota for the west coast sub-zone into

equal quotas for hook-and-line and run-around gillnet harvesters, and

allows persons to fish under the gillnet quota in the west coast sub-

zone only aboard vessels that have endorsements on their Federal

commercial mackerel permits to fish with gillnets in that sub-zone. The

intended effect of this rule is to allocate equitably the eastern zone

commercial quota among users and avoid the negative social and economic

emergencies related to a recent, disproportionately large, west coast

harvest in the commercial fishery for Gulf group king mackerel off

Florida. This rule also informs the public of the approval by the

Office of Management and Budget (OMB) of a collection-of-information

requirement contained in this rule and publishes the OMB control number

for that collection.

EFFECTIVE DATE: September 23, 1994, except that the amendment to

Sec. 204.1(b) is effective August 24, 1994; Sec. 642.4(m) is effective

August 24, 1994, except for Sec. 642.4(m)(4), which is effective August

24, 1994, through October 31, 1994; and Secs. 642.7(t), (u), and (v)

and 642.28(b)(2) are effective November 1, 1994.

ADDRESSES: Requests for copies of the final regulatory flexibility

analysis (FRFA) may be sent to: Southeast Regional Office, NMFS, 9721

Executive Center Drive, St. Petersburg, FL 33702.

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

SUPPLEMENTARY INFORMATION: The fishery for coastal migratory pelagic

resources (king mackerel, Spanish mackerel, cero, cobia, little tunny,

dolphin, and, in the Gulf of Mexico only, bluefish) is managed under

the FMP. The FMP was prepared by the Gulf of Mexico and South Atlantic

Fishery Management Councils (Councils) and is implemented through

regulations at 50 CFR part 642 under the authority of the Magnuson

Fishery Conservation and Management Act (Magnuson Act).

The background and rationale for the measures in Amendment 7 were

included in the proposed rule (59 FR 28330, June 1, 1994) and are not

repeated here.

Comments and Responses

Four letters were received during the comment period in response to

the proposed rule. The Gulf of Mexico Fishery Management Council (Gulf

Council) submitted a comment regarding the proposed regulations. Two

letters from a commercial fishermen's organization expressed opposition

to the 50/50 allocation of the eastern zone commercial quota of Gulf

group king mackerel between Florida's east and west coast fisheries.

The fourth comment received from the Chief Counsel for Advocacy, Small

Business Administration (SBA) indicated that the initial regulatory

flexibility analysis (IRFA) prepared for Amendment 7 does not comply

with the Regulatory Flexibility Act (RFA) because it failed to contain

an examination of other alternatives as required by the RFA. Specific

comments and NMFS responses are listed below.

Comment: The Gulf Council expressed concern that the regulatory

language contained in the proposed rule would not effectively prevent

gillnet vessels operating in the west coast sub-zone from additionally

harvesting Gulf group king mackerel under the hook-and-line quota.

Response: NMFS concurs with this concern and has ensured that the

final rule language clearly prohibits gillnet vessels from fishing for

Gulf group king mackerel in the west coast sub-zone with gear other

than a gillnet. The final rule is intended to prevent gillnet vessels

from landing king mackerel under both quotas and to be consistent with

the provisions of Amendment 7.

Under the final rule, king mackerel may be possessed or landed from

a vessel that uses, or has aboard, a run-around gillnet, only when it

possesses a Federal commercial mackerel permit with a gillnet

endorsement. King mackerel landed from such a vessel will be counted

only against the gillnet quota, while those landed by vessels not

having a gillnet endorsement will be counted against the hook-and-line

quota. Monitoring of mackerel landings by gear type is feasible and

will be utilized during the 1994-95 winter season for this fishery.

Accuracy in monitoring catches by gear type of this fishery is expected

to be similar to that achieved through other quota monitoring programs.

As in those programs, success in limiting catches to quotas will be

highly dependent on the good faith and cooperation of the fishing

industry, and the ability of NMFS to close the fishery in a timely

manner.

Comment: Two letters received from commercial fishermen objected to

the proposed 50/50 split of the eastern zone commercial quota for Gulf

group king mackerel between Florida's east and west coast fisheries.

They preferred an alternative allocation, considered and rejected by

the Council, that would establish a 56/44 west/east coast division of

the quota, as depicted in Table 1 of Amendment 7. This allocation

occurred during the period from the 1985-86 season through the 1992-93

season under quota management initiated with FMP Amendment 1. These

commenters contended that actions taken by the Gulf Council in its

decision to support the 50/50 west/east split of the quota were

inconsistent with the Magnuson Act. Specifically, they argued that the

Councils' decision was not based on the best available scientific

information and that reasonable opportunity was not provided for

interested parties to review and comment on the new data used by the

Council as a basis for its final decision.

Response: NMFS has reviewed the Councils' proposed equal allocation

between Florida's east and west coast fisheries and has determined that

this allocation is consistent with the national standards and other

provisions of the Magnuson Act and other applicable law. NMFS believes

that the Councils' decision was based on many factors as discussed in

Amendment 7, and that the Councils were not obliged to be guided solely

by historical landing percentages for each sub-zone.

Equal (50/50) apportionment of the eastern zone commercial quota

for Gulf group king mackerel between Florida's east and west coasts has

historical precedence and acceptance. Continuation of the State/Federal

management regime for Florida's commercial fishery for Gulf group king

mackerel appears to be supported by most affected fishermen from both

coasts. Amendment 7's delineation of east and west coast sub-zones and

establishment of equal quotas for each area is similar to management

provided by Florida regulations during the 1990-91 and 1991-92 seasons,

vacated during the 1992-93 fishing year, and resumed for the 1993-94

fishing year under a Federal emergency interim rule (58 FR 51789,

October 5, 1993).

Withdrawal of enforcement of Florida regulations during the 1992-93

season in response to a Federal court ruling resulted in

disproportionate sharing of the eastern zone commercial quota of Gulf

group king mackerel among east and west coast fishermen. To remedy

socioeconomic hardships resultant from record low east coast catches,

an emergency supplemental allocation of 259,000 lb (117,480 kg) was

granted to Florida east coast fishermen (58 FR 10990, February 23,

1993). This final rule implementing Amendment 7 is intended to address

permanently the fishery conditions that required previous emergency

regulatory action.

NMFS disagrees with the contention that the Councils' decision was

not based on the best available information. The Councils considered

several apportionment ratios for the east coast-west coast allocation,

including the preferred alternative, based on the best scientific

information available. The Councils concluded, and NMFS concurs, that

the 50/50 apportionment is supported by the best available information.

Also, the NMFS Science and Research Director, Southeast Fisheries

Science Center, has certified that the scientific information contained

in Amendment 7 is the best available.

NMFS also does not agree that insufficient time was allowed for

public review and comment on alleged new data presented to and

considered by the Gulf Council at its March 1994 meeting when it voted

to support the 50/50 west/east coast allocation. Representatives of the

South Atlantic Council presented landings data to the Gulf Council,

although in a different form, that had already been the subject of

public review and comment and were part of the public record for a

substantial period of time prior to the meeting. The same data

presented to and considered by the Gulf Council at its meeting were

available previously to the public as monthly landings from the Florida

Department of Environmental Protection, NMFS, and the Councils.

Reliable landings estimates of the most recent fishing year (1992-93

season) were available to the public by mid-1993, 7 to 8 months before

the Gulf Council's March 1994 meeting.

Comment: The SBA commented that the IRFA does not comply with the

RFA because it fails to contain an examination of other management

alternatives as required by the RFA. Specifically, SBA indicated that

the IRFA did not include an examination of alternatives that might

further protect and enhance the coastal migratory pelagic fisheries of

the Gulf of Mexico without unduly burdening small businesses.

Response: NMFS concurs. Consequently, NMFS has included such

analyses in the FRFA.

Changes From the Proposed Rule

In Sec. 642.2, the address in the definition of ``Regional

Director'' is corrected.

In Sec. 642.4(m)(4), the proposed rule specified that initial

requests for gillnet endorsements on vessel permits must be postmarked

or hand delivered ``during the 45-day period commencing on the first

day of effectiveness of the final rule implementing this measure.'' In

this final rule, the quoted language is replaced with, ``not later than

October 31, 1994.'' Advance notification has been given to the limited

number of fishermen affected by this new requirement for gillnet

endorsements. Accordingly, NMFS believes that the cutoff date of

October 31 provides fishermen with adequate time to submit requests for

endorsements.

As discussed above, a measure and related prohibition are added at

Secs. 642.28(b)(2)(iii) and 642.7(u), respectively, to allow vessels

with gillnet endorsements to retain king mackerel in or from the EEZ in

the Florida west coast sub-zone only when harvested with run-around

gillnet gear.

Additional Changes Proposed

Under the FMP's framework procedure for adjusting management

measures, the Councils have proposed changes in the total allowable

catch for the Atlantic groups of king and Spanish mackerel and changes

in the commercial trip limits for Gulf group king mackerel in the

eastern zone. Preliminary notice of these changes was published on

August 9, 1994 (59 FR 40509).

Effective Dates

The gillnet endorsement procedural requirements (Sec. 642.4(m)) and

incorporation of the OMB approval number for the collection-of-

information requirement associated with applications for gillnet

endorsements in the table of OMB Control Numbers for NOAA Information

Collection Requirements (Sec. 204.1(b)) are made effective immediately

in that they are not substantive rules subject to a delay in effective

date under section 553(d) of the Administrative Procedure Act.

The provisions for the initial applications for gillnet

endorsements, contained in Sec. 642.4(m)(4), are temporary. Therefore,

that paragraph is effective only through October 31, 1994.

The provisions of new Sec. 642.28(b)(2), which depend on the

presence or absence of a gillnet endorsement on a vessel permit, and

the related prohibitions at Sec. 642.7(t), (u), and (v), are not

effective until November 1, 1994. This will allow sufficient time for

fishermen to submit requests for gillnet endorsements and for NMFS to

process and issue them.

Classification

The Regional Director determined that Amendment 7 is necessary for

the conservation and management of the fishery for coastal migratory

pelagic resources and that it is consistent with the Magnuson Act and

other applicable law.

This final rule has been determined to be not significant for

purposes of E.O. 12866.

The Councils prepared an IRFA as part of Amendment 7, which

concluded that this rule may have a significant economic impact on a

substantial number of small entities. In response to a comment from the

SBA, NMFS prepared an FRFA that provides additional analysis of the

effects of management alternatives on small businesses; the FRFA

supports the same conclusions regarding significant economic impacts as

were reached by the IRFA. A copy of the FRFA is available from the

Councils (or NMFS) (see ADDRESSES).

This final rule contains a collection-of-information requirement

subject to the Paperwork Reduction Act-- specifically, applications for

gillnet endorsements on vessel permits. This collection of information

has been approved by OMB under OMB control number 0648-0205. The public

reporting burden for this collection of information is estimated to

average 30 minutes per response, including the time for reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collections of information. Send comments regarding this burden

estimate or any other aspect of the collection of information,

including suggestions for reducing the burden, to Edward E. Burgess,

NMFS, 9721 Executive Center Drive, St. Petersburg, FL 33702 and to the

Office of Information and Regulatory Affairs, OMB, Washington, DC 20503

(Attention: NOAA Desk Officer).

List of Subjects

50 CFR Part 204

Reporting and recordkeeping requirements.

50 CFR Part 642

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: August 18, 1994.

Gary C. Matlock,

Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR parts 204 and 642

are amended as follows:

PART 204--OMB CONTROL NUMBERS FOR NOAA INFORMATION COLLECTION

REQUIREMENTS

1. The authority citation for part 204 continues to read as

follows:

Authority: Paperwork Reduction Act of 1980, 44 U.S.C. 3501-3520

(1982).

Sec. 204.1 [Amended]

2. In Sec. 204.1(b), the table is amended by adding in numerical

order, the entry ``Sec. 642.4(m)'', in the first column and the control

number ``-0205'' in the second column.

PART 642--COASTAL MIGRATORY PELAGIC RESOURCES OF THE GULF OF MEXICO

AND SOUTH ATLANTIC

3. The authority citation for part 642 continues to read as

follows:

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

4. In Sec. 642.2, the definition of Regional Director is revised to

read as follows:

Sec. 642.2 Definitions.

* * * * *

Regional Director means the Director, Southeast Region, NMFS, 9721

Executive Center Drive, St. Petersburg, FL 33702, telephone 813-570-

5301; or a designee.

* * * * *

5. In Sec. 642.4, new paragraph (m) is added to read as follows:

Sec. 642.4 Permits and fees.

* * * * *

(m) Gillnet endorsement. (1) For a vessel to use a run-around

gillnet for king mackerel in the Florida west coast sub-zone (see

Sec. 642.25(a)(1)(i)(B)), a vessel for which a king and Spanish

mackerel permit has been issued pursuant to this section must have a

gillnet endorsement on such permit and such permit and endorsement must

be on board the vessel.

(2) An owner of a permitted vessel may add or delete a gillnet

endorsement on a permit by returning to the Regional Director the

vessel's existing permit with a written request for addition or

deletion of the gillnet endorsement. Such request must be postmarked or

hand delivered during June, each year.

(3) A gillnet endorsement may not be added or deleted from July 1

through May 31 each year, any renewal of the permit during that period

notwithstanding. From July 1 through May 31, a permitted vessel that is

sold, if permitted by the new owner for king and Spanish mackerel, will

receive a permit with or without the endorsement as was the case for

the vessel under the previous owner. From July 1 through May 31, the

initial king and Spanish mackerel permit issued for a vessel new to the

fishery will be issued without a gillnet endorsement.

(4) The provisions of paragraphs (m)(2) and (m)(3) of this section

notwithstanding, the initial requests for gillnet endorsements must be

postmarked or hand delivered not later than October 31, 1994.

6. In Sec. 642.7, paragraph (p) is revised, paragraphs (s) and (u)

are removed, paragraph (t) is redesignated as paragraph (x), and new

paragraphs (s) through (w) are added to read as follows:

Sec. 642.7 Prohibitions.

* * * * *

(p) After a closure specified in Sec. 642.26(a), sell, purchase,

trade, or barter, or attempt to sell, purchase, trade, or barter a king

or Spanish mackerel of the closed species/ migratory group/zone/sub-

zone/gear type, as specified in Secs. 642.22(c), 642.24(a)(4), and

642.26(b)(3).

* * * * *

(s) In the eastern zone, possess or land Gulf group king mackerel

in or from the EEZ in excess of an applicable trip limit, as specified

in Sec. 642.28(a) or Sec. 642.28(b)(1)(ii), or transfer at sea such

king mackerel, as specified in Sec. 642.28(e).

(t) In the Florida west coast sub-zone, possess or land Gulf group

king mackerel in or from the EEZ aboard a vessel that uses or has

aboard a run-around gillnet on a trip when such vessel does not have on

board a commercial permit for king and Spanish mackerel with a gillnet

endorsement, as specified in Sec. 642.28(b)(2)(i).

(u) In the Florida west coast sub-zone, aboard a vessel for which a

commercial permit for king and Spanish mackerel with a gillnet

endorsement has been issued, retain Gulf group king mackerel in or from

the EEZ harvested with gear other than run-around gillnet, as specified

in Sec. 642.28(b)(2)(iii).

(v) In the Florida west coast sub-zone, transfer at sea Gulf group

king mackerel taken by a vessel for which a commercial permit for king

and Spanish mackerel with a gillnet endorsement has been issued, as

specified in Sec. 642.28(e).

(w) Violate any prohibitions or restrictions for the prevention of

gear conflicts that may be specified in accordance with Sec. 642.29.

* * * * *

7. In Sec. 642.25, paragraph (c) is removed and paragraphs (a)(1)

introductory text and (a)(1)(i) are revised to read as follows:

Sec. 642.25 Commercial allocations and quotas.

* * * * *

(a) * * *

(1) The commercial allocation for the Gulf migratory group of king

mackerel is 2.50 million pounds (1.13 million kg) per fishing year. The

Gulf migratory group is divided into eastern and western zones

separated by a line extending directly south from the Alabama/Florida

boundary (87 deg.31'06'' W. long.) to the outer limit of the EEZ.

Quotas for the eastern and western zones are as follows:

(i) 1.73 million pounds (0.78 million kg) for the eastern zone,

which is further divided into quotas as follows:

(A) 865,000 pounds (392,357 kg) for the Florida east coast sub-

zone, which is that part of the eastern zone north of a line extending

directly east from the Dade/Monroe County, Florida boundary

(25 deg.20.4' N. lat.); and

(B) 865,000 pounds (392,357 kg) for the Florida west coast sub-

zone, which is that part of the eastern zone south and west of the

Dade/Monroe County, Florida boundary (25 deg.20.4' N. lat.), which is

further divided into quotas by gear types as follows:

(1) 432,500 pounds (196,179 kg) for vessels fishing with hook-and-

line gear; and

(2) 432,500 pounds (196,179 kg) for vessels fishing with run-around

gillnets.

* * * * *

8. Section 642.26 is revised to read as follows:

Sec. 642.26 Closures.

(a) Notice of closure. The Assistant Administrator, by filing a

notice with the Office of the Federal Register, will close the

commercial fishery in the EEZ for king mackerel from a particular

migratory group, zone, sub-zone, or gear type, and for Spanish mackerel

from the Gulf migratory group, when the allocation or quota under

Sec. 642.25(a) or Sec. 642.25(b)(1) for that migratory group, zone,

sub-zone, or gear type has been reached or is projected to be reached.

The commercial fishery for Atlantic group Spanish mackerel is managed

under the commercial trip limits specified in Sec. 642.27 in lieu of

the closure provisions of this section.

(b) Fishing after a closure. On and after the effective date of a

closure invoked under paragraph (a) of this section, for the remainder

of the appropriate fishing year for commercial allocations specified in

Sec. 642.20(a):

(1) A person aboard a vessel in the commercial fishery may not fish

for king or Spanish mackerel in the EEZ or retain fish in or from the

EEZ under a bag limit specified in Sec. 642.24(a)(1) for the closed

species, migratory group, zone, sub-zone, or gear type, except as

provided for under paragraph (b)(2) of this section.

(2) A person aboard a vessel for which the permit indicates both

commercial king and Spanish mackerel and charter vessel for coastal

migratory pelagic fish may continue to retain fish under a bag and

possession limit specified in Sec. 642.24 (a)(1) and (a)(2) provided

the vessel is operating as a charter vessel.

(3) The sale, purchase, trade, or barter or attempted sale,

purchase, trade, or barter of king or Spanish mackerel of the closed

species, migratory group, zone, sub-zone, or gear type is prohibited.

This prohibition does not apply to trade in king or Spanish mackerel

harvested, landed, and sold, traded, or bartered prior to the closure

and held in cold storage by dealers or processors.

Sec. 642.31 [Removed]

Secs. 642.28 through 642.30 [Redesignated as Secs. 642.29 through

642.31]

9. Section 642.31 is removed; Secs. 642.28 through 642.30 are

redesignated as Secs. 642.29 through 642.31, respectively; and new

Sec. 642.28 is added to read as follows:

Sec. 642.28 Additional limitations for Gulf group king mackerel in the

eastern zone.

(a) Florida east coast sub-zone. In the Florida east coast sub-

zone, king mackerel in or from the EEZ may be possessed aboard or

landed from a vessel for which a commercial permit has been issued for

king and Spanish mackerel under Sec. 642.4:

(1) From November 1, each fishing year, until 50 percent of the

sub-zone's fishing year quota of king mackerel has been harvested--in

amounts not exceeding 50 king mackerel per day; and

(2) From the date that 50 percent of the sub-zone's fishing year

quota of king mackerel has been harvested until a closure of the

Florida east coast sub-zone has been effected under Sec. 642.26--in

amounts not exceeding 25 king mackerel per day.

(b) Florida west coast sub-zone. (1) In the Florida west coast sub-

zone, king mackerel in or from the EEZ may be possessed aboard or

landed from a vessel for which a commercial permit has been issued for

king and Spanish mackerel under Sec. 642.4:

(i) From July 1, 1994, until 75 percent of the sub-zone's fishing

year quota of king mackerel has been harvested--in unlimited amounts of

king mackerel; and

(ii) From the date that 75 percent of the sub-zone's fishing year

quota of king mackerel has been harvested until a closure of the

Florida west coast sub-zone has been effected under Sec. 642.26--in

amounts not exceeding 50 king mackerel per day.

(2) In the Florida west coast sub-zone:

(i) King mackerel in or from the EEZ may be possessed aboard or

landed from a vessel that uses or has aboard 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 sub-zone 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. 642.25(a)(1)(i)(B)(2); and

(iii) Aboard a vessel for which such commercial permit with

endorsement has been issued, king mackerel in or from the EEZ harvested

with gear other than run-around gillnet may not be retained.

(c) Notice of trip limit changes. The Assistant Administrator, by

filing a notice with the Office of the Federal Register, will effect

the trip limit changes specified in paragraphs (a) and (b)(1)(ii) of

this section when the requisite harvest levels have been reached or are

projected to be reached.

(d) Combination of trip limits. A person who fishes in the EEZ may

not combine a trip limit of this section with any trip or possession

limit applicable to state waters.

(e) Transfer at sea. A person for whom a trip limit specified in

paragraph (a) or (b)(1)(ii) of this section or a gear limitation

specified in paragraph (b)(2) of this section applies may not transfer

at sea from one vessel to another a king mackerel:

(1) Taken in the EEZ, regardless of where such transfer takes

place; or

(2) In the EEZ, regardless of where such king mackerel was taken.

[FR Doc. 94-20730 Filed 8-24-94; 8:45 am]

BILLING CODE 3510-32-W