[Federal Register Volume 61, Number 228 (Monday, November 25, 1996)]
[Proposed Rules]
[Pages 59852-59856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29500]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 961108316-6316-01; I.D. 101796C]
RIN 0648-AI47
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Reef Fish Fishery of the Gulf of Mexico; Amendment 14
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule, request for comments.
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SUMMARY: NMFS issues this proposed rule to implement Amendment 14 to
the Fishery Management Plan for the Reef Fish Resources of the Gulf of
Mexico (FMP). This proposed rule would prohibit the use or possession
of fish traps in the exclusive economic zone (EEZ) of the Gulf of
Mexico (Gulf) beginning February 8, 2007; prohibit the use or
possession of fish traps west of 85 deg.30' W. long.; modify the
procedure for retrieval of fish traps when a breakdown prevents a
vessel with a trap endorsement from retrieving its traps; modify the
restrictions on transfer of fish trap endorsements and reef fish
permits; prohibit the harvest or possession of Nassau grouper in or
from the EEZ of the Gulf; and clarify the authority of the Regional
Administrator, Southeast Region, NMFS (RA), to reopen a prematurely
closed fishery. In addition, NMFS proposes to extend the current
prohibition on the possession of dynamite on board a permitted vessel
to those vessels permitted in the South Atlantic golden crab fishery.
The intended effects of this rule are to conserve and manage the reef
fish resources of the Gulf and enhance enforceability of the
regulations.
DATES: Written comments must be received on or before January 9, 1997.
ADDRESSES: Comments on the proposed rule or on the initial regulatory
flexibility analysis (IRFA) must be sent to Robert Sadler, Southeast
Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg,
FL 33702.
Comments regarding the collection-of-information requirement
contained in this rule should be sent to Edward E. Burgess, Southeast
Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg,
FL 33702, and to the Office of Information and Regulatory
[[Page 59853]]
Affairs, Office of Management and Budget (OMB), Washington, DC 20503
(Attention: NOAA Desk Officer).
Requests for copies of Amendment 14, which includes an
environmental assessment, a regulatory impact review (RIR), and an
IRFA, should be sent to the Gulf of Mexico Fishery Management Council,
5401 West Kennedy Boulevard, Suite 331, Tampa, FL, 33609, PHONE: 813-
228-2815; FAX: 813-225-7015.
FOR FURTHER INFORMATION CONTACT: Robert Sadler, 813-570-5305.
SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico
is managed under the FMP. The FMP was prepared by the Gulf of Mexico
Fishery Management Council (Council) and is implemented through
regulations at 50 CFR part 622 under the authority of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson Act).
Background and Rationale
The Council developed Amendment 14 to address various problems in
the reef fish fishery. Most of the problems are associated with the
fish trap fishery and the February 7, 1997, expiration of the existing
moratorium on the issuance of additional fish trap endorsements.
Phaseout of the Use of Fish Traps in the Gulf
The Council established a moratorium on additional fish trap
endorsements under Amendment 5 that will extend through February 7,
1997 (final rule implementing Amendment 5 was effective February 7,
1994; 59 FR 966). This moratorium was implemented to stabilize the
number of participants in the fish trap fishery until the Council could
obtain better information on the trap fishery's ecological impacts.
This information was recently provided through completion of a NMFS
observer study on the biological effects of the fish trap fishery. The
study indicated, that for the particular area where most of the study
data were collected, fish traps can target the higher-value species
(grouper and snapper) without major bycatch of non-targeted species.
Because the study's duration and geographical extent were limited, the
Council determined that the study data and conclusions may not be
representative of the Gulf reef fish trap fishery as a whole.
Many of the Council members were concerned over the apparent lack
of compliance with fish trap rules and believed that enforcement would
never be adequate to assure compliance. The Council members were
concerned over the impacts of incidental catch of non-targeted species,
increased unreported fishing effort, and long-term ghost fishing from
abandoned or lost traps with non-functioning escape panels. Because
fish traps are completely submerged and can be fished without fishermen
being present, they are difficult for enforcement officers to locate
and, if being fished illegally without surface buoys, are difficult to
identify. Regulations pertaining to trap construction specifications,
including escape panels, prohibited areas, and tag requirements can
only be enforced if the fisherman is intercepted during the relatively
short periods of deployment or retrieval. The Council's Law Enforcement
and Reef Fish Advisory Panels both recommended that the use of fish
traps be banned in the Gulf EEZ.
After extensive deliberations and consideration of public comments,
the Council proposed a 10-year phaseout of the fish trap fishery.
Compared to an immediate prohibition, the 10-year phaseout period would
spread the economic impact on the existing participants over a
relatively long time. This phaseout period would allow fishermen to
make a gradual transition to other fisheries without the disruption
associated with an immediate termination of the fishery. The majority
of fishermen in the fish trap fishery are only partially dependent on
the fishery and can switch to other fisheries or fishing methods in
which they are already participating.
Prohibition on the Use or Possession of Fish Traps West of Cape San
Blas, FL
The Council proposes to prohibit the use of fish traps west of
85 deg.30' W. long., the longitude of Cape San Blas, FL, consistent
with the Council's intent to limit, reduce, and ultimately eliminate
the use of fish traps. This measure would prevent an expansion of the
fishery beyond its current geographical range and was supported by most
persons who testified on this measure at the Council's public hearings.
The measure would also limit potential enforceability problems by
restricting the area where traps may be used. The immediate effects on
fishermen would be limited since only one person who owns a vessel with
a fish trap endorsement resides west of Cape San Blas, FL.
Modification of the Procedure for Retrieval of Fish Traps
In the event of a breakdown of a vessel with a fish trap
endorsement, current regulations allow another vessel to retrieve its
fish traps, if written authorization from the owner or operator of the
vessel with the endorsement is on board. Those authorizations do not
have to be obtained from or registered with NMFS. This provision is
being used in a manner not intended by the Council. Some owners of
vessels with fish trap endorsements are providing such authorizations
to the operators of other vessels without regard to vessel breakdowns.
In this manner, vessels that do not have fish trap endorsements are
being used to tend traps.
To provide greater accountability for retrieval of traps when
vessel breakdown prevents retrieval by the vessel with the fish trap
endorsement, the proposed measure would require that authorization to
retrieve a disabled vessel's traps be obtained from NMFS' Office of
Enforcement. Such authorizations would be specific as to vessel,
individual(s), point of landing, and time period, and be issued only at
the time that a disabling incident occurs. This measure would allow
enforcement personnel, including U.S. Coast Guard and state enforcement
officers, to check with NMFS' Office of Enforcement to verify the terms
of authorization. The Office of Enforcement will accept phone calls
around the clock; messages at certain times of the day will require a
return call by office personnel.
Modification of the Restrictions on Transfer of Fish Trap
Endorsements
During the first 2 years of the phaseout period, fish trap
endorsements would be transferable among vessels with reef fish
permits. This initial transfer period is intended to give fish trap
fishermen an opportunity to exit the fishery and receive economic
compensation by selling their endorsements. The Council limited the
period for unrestricted transfers to 2 years to encourage a continued
reduction in the number of fish trap endorsements for the remainder of
the phaseout.
During the third through the tenth year of the phaseout period,
fish trap endorsements would be transferable only to an immediate
family member, another person upon death or disability of the
endorsement holder, another vessel owned by the same entity, or any of
the 56 individuals who were fishing traps after November 19, 1992, and
were excluded by the current moratorium. The limitation on transfer of
endorsements under these conditions would be expected to result in
additional attrition during the last 8 years of the phaseout.
Endorsements that expire and are not renewed would not be reissued.
[[Page 59854]]
Modification of the Restrictions on Transfer of Reef Fish Permits
The current regulations allow transfer of a permit between persons
only when the owner of the vessel whose permit is being transferred has
met the income qualification for the permit. This prevents a vessel
operator, whose earned income qualified a vessel for a permit, from
acquiring the permit by transfer from the owner when buying the vessel
from the owner. The Council proposed an exception to the general rule
that only an owner-qualified permit may be transferred to another
person by allowing the transfer when the recipient is the income-
qualifying operator.
The Council also proposed to allow a non-income-qualifying owner
who loses his income-qualifying operator to continue in the reef fish
fishery for a limited time (grace period) in order to meet the income
qualification for the vessel permit. Currently, upon transfer of a reef
fish permit, an owner who does not meet the earned income requirement
and who receives a trap permit by transfer may continue to operate the
vessel in the fishery for one full calendar year in order to meet that
requirement. An additional 3\1/2\ months (beyond the one full calendar
year period) is provided for the new owner to document his/her earned
income for the calendar year and apply for renewal of the permit and
for NMFS to process the application and issue a renewed permit.
However, an owner who loses his/her earned-income qualifying operator
does not have the same grace period. The Council's proposal would grant
the same grace period for meeting the earned income requirement to such
owner.
Prohibition on the Harvest or Possession of Nassau Grouper
Nassau grouper is on the candidate list of threatened or endangered
species under the Endangered Species Act. The species is classified by
NMFS as over-utilized, with a current potential yield of zero. Harvest
and possession of Nassau grouper is prohibited in Florida's waters, the
South Atlantic EEZ, and the Caribbean EEZ, but not in the Gulf EEZ. A
closure of the Gulf EEZ would provide consistent regulations for Nassau
grouper in the U.S. EEZ. Economic impacts are expected to be limited,
because Nassau grouper have comprised 0.5 percent of shallow-water
grouper harvest in recent years.
Reopening of a Commercial or Recreational Fishery
The Council proposes to authorize the RA to reopen a commercial or
recreational fishery for a Gulf reef fish species or species group when
needed to ensure that a commercial quota or recreational allocation may
be reached. Such authorization would constitute a modification to the
framework procedure of the FMP for making changes to management
measures. As the closure provisions currently apply only to Gulf reef
fish species or species groups that have commercial quotas, the
proposed change would not be immediately applicable to the recreational
fisheries for Gulf reef fish.
Availability of Amendment 14
Additional background and rationale for the measures discussed
above are contained in Amendment 14, the availability of which was
announced in the Federal Register (61 FR 55128, October 24, 1996).
Changes Proposed by NMFS
Current regulations prohibit the possession on board a permitted
vessel of dynamite or similar explosive substance. To apply this
prohibition to permitted vessels in the South Atlantic golden crab
fishery, NMFS proposes to add, at Sec. 622.31(a), a reference to
Sec. 622.17, which is the section that requires permits in the golden
crab fishery.
Generally, a vessel permit or endorsement is not transferable. To
correctly reflect the current exceptions to that general rule, NMFS
proposes to add, at Sec. 622.4(g), a reference to Sec. 622.4(p)
regarding transfers of red snapper endorsements.
NMFS proposes other minor language changes for consistency and
clarity.
Classification
Section 304(a)(1)(D) of the Magnuson Act requires NMFS to publish
regulations proposed by a Council within 15 days of receipt of the
amendment and regulations. At this time, NMFS has not determined that
the provisions of Amendment 14 are consistent with the national
standards, other provisions of the Magnuson Act, and other applicable
laws. NMFS, in making that determination, will take into account the
data, views, and comments received during the comment period.
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
As part of the RIR, the Council prepared an IRFA, summarized as
follows. Since all participants in the fishery, including those in the
fish trap sector, are small business entities, disproportionate effects
on capital costs of compliance would not occur. A substantial number of
the 92 small business entities that use fish traps in the reef fish
fishery would be affected by the proposed rule. These entities would
not be able to use fish traps beginning February 8, 2007, and would
incur a substantial reduction in income. The regulations are likely to
result in a change in gross revenues of more than 5 percent.
Performance standards are not practicable because the trap gear cannot
be adequately monitored and enforced. Approximately 87 percent of these
entities (80 in number) would be able to switch to other fisheries, but
would incur substantial increases in costs to acquire and operate the
alternative gear. Since the fish traps and related gear would not be
marketable, all investments in the traps and gear would be lost.
Approximately 13 percent of these entities (12 in number) would be
unable to switch to other fisheries and would be forced to cease
business operations. No duplicative, overlapping, or conflicting
Federal rules have been identified regarding this action. Significant
alternatives to the proposed action to eliminate the use of fish trap
gear in ten years were considered including: Several related
alternatives that would create a permanent fish trap license limitation
system but differed in the number of allowed participants; an
alternative that would extend the current permit moratorium until the
year 2000; an alternative delaying any decisions for two years; and a
status-quo alternative. The Council chose its preferred alternative
(ten-year phase out of the trap fishery) based on a determination that
this action would address its concerns about the adverse biological
impacts of fish traps and the serious enforcement difficulties with
this fishery, while providing affected trap fishermen sufficient time
to plan for the termination of the fishery. The IRFA discusses the
costs and benefits of all the alternatives considered by the Council
for this action. The IRFA also identifies and assesses the alternatives
for the other proposed measures of Amendment 14. A copy of the IRFA is
available (see ADDRESSES).
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid OMB Control Number.
This rule contains a new collection-of-information requirement
subject to the PRA--namely, the requirement that, when a vessel with a
fish trap
[[Page 59855]]
endorsement has a breakdown that prevents the vessel from retrieving
its traps, the owner or operator must notify the nearest NMFS Office of
Enforcement and obtain authorization for another vessel to retrieve the
traps. This requirement has been submitted to OMB for approval. The
public reporting burden for this collection of information is estimated
at 3 minutes per response, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding this reporting
burden estimate, or any other aspect of the collection of information,
including suggestions for reducing the burden, to NMFS and OMB (see
ADDRESSES).
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
Dated: November 13, 1996.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 622 is
proposed to be 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. 622.4, in paragraph (a)(2)(i), in the second sentence,
the words ``moratorium on'' are removed; in paragraph (a)(2)(v), the
last sentence is revised; in paragraph (g), the first sentence is
revised; paragraphs (m) and (n) are revised; and in paragraph (p)(3)(i)
the last, parenthetical sentence is revised to read as follows:
Sec. 622.4 Permits and fees.
(a) * * *
(2) * * *
(v) * * * See paragraph (m) of this section regarding a moratorium
on commercial vessel permits for Gulf reef fish and paragraphs (m)(3)
and (m)(5) of this section for limited exceptions to the earned income
requirement for a permit.
* * * * *
(g) * * * A vessel permit or endorsement or dealer permit issued
under this section is not transferable or assignable, except as
provided in paragraph (m) of this section for a commercial vessel
permit for Gulf reef fish, as provided in paragraph (n) of this section
for a fish trap endorsement, or as provided in paragraph (p) of this
section for a red snapper endorsement. * * *
* * * * *
(m) Moratorium on commercial vessel permits for Gulf reef fish.
This paragraph (m) is effective through December 31, 2000.
(1) No applications for additional commercial vessel permits for
Gulf reef fish will be accepted. Existing vessel permits may be
renewed, are subject to the restrictions on transfer or change in
paragraphs (m)(2) through (m)(5) of this section, and are subject to
the requirement for timely renewal in paragraph (m)(6) of this section.
(2) An owner of a permitted vessel may transfer the commercial
vessel permit for Gulf reef fish to another vessel owned by the same
entity.
(3) An owner whose earned income qualified for the commercial
vessel permit for Gulf reef fish may transfer the permit to the owner
of another vessel, or to the new owner when he or she transfers
ownership of the permitted vessel. Such owner of another vessel, or new
owner, may receive a commercial vessel permit for Gulf reef fish for
his or her vessel, and renew it through April 15 following the first
full calendar year after obtaining it, without meeting the earned
income requirement of paragraph (a)(2)(v) of this section. However, to
further renew the commercial vessel permit, the owner of the other
vessel, or new owner, must meet the earned income requirement not later
than the first full calendar year after the permit transfer takes
place.
(4) An owner of a permitted vessel, the permit for which is based
on an operator's earned income and, thus, is valid only when that
person is the operator of the vessel, may transfer the permit to the
income qualifying operator when such operator becomes an owner of a
vessel.
(5) An owner of a permitted vessel, the permit for which is based
on an operator's earned income and, thus, is valid only when that
person is the operator of the vessel, may have the operator
qualification on the permit removed, and renew it without such
qualification through April 15 following the first full calendar year
after removing it, without meeting the earned income requirement of
paragraph (a)(2)(v) of this section. However, to further renew the
commercial vessel permit, the owner must meet the earned income
requirement not later than the first full calendar year after the
operator qualification is removed. To have an operator qualification
removed from a permit, the owner must return the original permit to the
RD with an application for the changed permit.
(6) A commercial vessel permit for Gulf reef fish that is not
renewed or that is revoked will not be reissued. A permit is considered
to be not renewed when an application for renewal is not received by
the RD within 1 year of the expiration date of the permit.
(n) Endorsements for fish traps in the Gulf. The provisions of this
paragraph (n) are effective through February 7, 2007.
(1) Only those fish trap endorsements that are valid on February 7,
1997, may be renewed. Such endorsements are subject to the restrictions
on transfer in paragraphs (n)(2) and (3) of this section and are
subject to the requirement for timely renewal in paragraph (n)(5) of
this section. Effective February 8, 2007, no fish trap endorsements are
valid.
(2) Through February 7, 1999, a fish trap endorsement may be
transferred only to a vessel that has a commercial permit for reef
fish.
(3) The provisions of this paragraph (n)(3) are effective February
8, 1999. A fish trap endorsement is not transferable except as follows:
(i) An owner of a vessel with a fish trap endorsement may transfer
the endorsement to another vessel owned by the same entity.
(ii) A fish trap endorsement is transferable upon a change of
ownership of a permitted vessel with such endorsement from one to
another of the following: Husband, wife, son, daughter, brother,
sister, mother, or father.
(iii) When a change of ownership of a vessel with a fish trap
endorsement is directly related to the disability or death of the
owner, the RD may issue such endorsement, temporarily or permanently,
with the commercial vessel permit for Gulf reef fish that is issued for
the vessel under the new owner. Such new owner will be the person
specified by the owner or his/her legal guardian, in the case of a
disabled owner, or by the will or executor/administrator of the estate,
in the case of a deceased owner. (Paragraphs (m)(3) and (m)(4) of this
section apply for the transfer of a commercial vessel permit for Gulf
reef fish upon disability or death of an owner.)
(iv) A fish trap endorsement may be transferred to a vessel with a
commercial vessel permit for Gulf reef fish whose owner has a record of
landings of reef fish from fish traps in the Gulf EEZ, as reported on
fishing vessel logbooks received by the SRD from November 20, 1992,
through February 6, 1994, and who was unable to obtain a fish trap
endorsement for the vessel with the reported landings.
[[Page 59856]]
(4) The owner of a vessel that is to receive a transferred
endorsement must return the originals of the endorsed commercial vessel
permit for Gulf reef fish and the unendorsed permit to the RD with an
application for a fish trap endorsement for his or her vessel.
(5) A fish trap endorsement that is not renewed or that is revoked
will not be reissued. Such endorsement is considered to be not renewed
when an application for renewal is not received by the RD within 1 year
of the expiration date of the permit.
* * * * *
(p) * * *
(3) * * *
(i) * * * (Paragraphs (m)(3) and (m)(4) of this section apply for
the transfer of a commercial vessel permit for Gulf reef fish upon
disability or death of an owner.)
* * * * *
3. In Sec. 622.31, in paragraph (a), the reference to
``Sec. 622.4'' is revised to read ``Sec. 622.4 or Sec. 622.17'' and
paragraph (c) is revised to read as follows:
Sec. 622.31 Prohibited gear and methods.
* * * * *
(c) Fish traps. (1) A fish trap may not be used in the South
Atlantic EEZ.
(2) A fish trap may not be used or possessed in the Gulf EEZ west
of 85 deg.30' W. long. and, effective February 8, 2007, may not be used
or possessed in the Gulf EEZ.
(3) A fish trap used other than where authorized in paragraph
(c)(1) or (c)(2) of this section may be disposed of in any appropriate
manner by the Assistant Administrator or an authorized officer.
* * * * *
4. In Sec. 622.32, paragraph (b)(2)(iii) is revised to read as
follows:
Sec. 622.32 Prohibited and limited harvest species.
* * * * *
(b) * * *
(2) * * *
(iii) Red drum and Nassau grouper may not be harvested or possessed
in or from the Gulf EEZ. Such fish caught in the Gulf EEZ must be
released immediately with a minimum of harm.
* * * * *
Sec. 622.37 [Amended]
5. In Sec. 622.37(d)(4), the word ``Nassau,'' is removed.
6. In Sec. 622.40, paragraph (a)(2) is revised to read as follows:
Sec. 622.40 Limitations on traps and pots.
(a) * * *
(2) Gulf EEZ. A fish trap in the Gulf EEZ may be pulled or tended
only by a person (other than an authorized officer) aboard the vessel
with the fish trap endorsement to fish such trap. If such vessel has a
breakdown that prevents it from retrieving its traps, the owner or
operator must immediately notify the nearest NMFS Office of Enforcement
and must obtain authorization for another vessel to retrieve and land
its traps. The request for such authorization must include the
requested effective period for the retrieval and landing, the persons
and vessel to be authorized to retrieve the traps, and the point of
landing of the traps. Such authorization will be specific as to the
effective period, authorized persons and vessel, and point of landing.
Such authorization is valid solely for the removal of fish traps from
the EEZ and for harvest of fish incidental to such removal.
* * * * *
7. In Sec. 622.42, paragraph (a)(3) is revised to read as follows:
Sec. 622.42 Quotas.
* * * * *
(a) * * *
(3) Shallow-water groupers, that is, all groupers other than deep-
water groupers, jewfish, and Nassau grouper, including scamp before the
quota for shallow-water groupers is reached, combined--9.8 million lb
(4.4 million kg), round weight.
* * * * *
Sec. 622.43 [Amended]
8. In Sec. 622.43(b)(1), the words ``bartered, traded, or'' are
removed.
9. In Sec. 622.48, paragraph (d)(1) is revised to read as follows:
Sec. 622.48 Adjustment of management measures.
* * * * *
(d) * * *
(1) For a species or species group: Target date for rebuilding an
overfished species, TAC, bag limits, size limits, vessel trip limits,
closed seasons or areas, gear restrictions, quotas, and reopening of a
fishery prematurely closed.
* * * * *
[FR Doc. 96-29500 Filed 11-22-96; 8:45 am]
BILLING CODE 3510-22-F