[Federal Register Volume 64, Number 43 (Friday, March 5, 1999)]
[Proposed Rules]
[Pages 10613-10616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5498]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 981229328-8328-01; I.D. 120998C]
RIN 0648-AK31
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Reef Fish Fishery of the Gulf of Mexico; Amendment 16A
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 16A to
the Fishery Management Plan for the Reef Fish Resources of the Gulf of
Mexico (FMP). This proposed rule would prohibit the use of fish traps
in the exclusive economic zone (EEZ) of the Gulf of Mexico south of
25 deg.03' N. lat. after February 7, 2001; prohibit possession of reef
fish exhibiting trap rash on board a vessel that does not have a valid
fish trap endorsement; and require fish trap vessel owners or operators
to provide trip initiation and trip termination reports and comply with
an annual vessel/gear inspection requirement. In addition, Amendment
16A proposes that NMFS develop a system design, protocol, and
implementation schedule for a fish trap vessel monitoring system (VMS).
The intended effects of this rule are to enhance enforceability of fish
trap measures and conserve and manage the reef fish resources of the
Gulf of Mexico.
DATES: Written comments must be received on or before April 19, 1999.
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 requirements
contained in this rule must 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 Affairs,
Office of Management and Budget (OMB), Washington, DC 20503 (Attention:
NOAA Desk Officer).
Requests for copies of Amendment 16A, which includes an
environmental assessment, a regulatory impact review (RIR), and an
IRFA, and requests for copies of a minority report submitted by two
Council members should be sent to the Gulf of Mexico Fishery Management
Council, Suite 1000, 3018 U.S. Highway 301 North, Tampa, FL, 33619;
Phone: 813-228-2815; Fax: 813-225-7015.
FOR FURTHER INFORMATION CONTACT: Robert Sadler, 727-570-5305.
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 under the
authority of the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
Accelerated Area Phaseout of Fish Traps
A 10-year phaseout of the fish trap fishery ending February 7,
2007, was implemented under Amendment 14 (62 FR 13983, March 25, 1997).
Amendment 16A proposes a shorter phaseout period (ending February 7,
2001) for an area in Federal waters south of Cape Sable, FL (25.05 deg.
N. lat.) at the southernmost point of the Florida peninsula. This
measure is based on Council concerns about increased trap fishing
pressure, continuing fish trap violations, and ineffective fish trap
vessel monitoring. Opponents of fish traps report user group conflicts
and problems with excessive trap fishing pressure in an area south of
25.05 deg. N. lat. Law enforcement agencies reported continued
difficulties in detecting and monitoring fish trap use and requested
additional fish trap vessel monitoring, reporting, and inspection
requirements for the entire fish trap fishery.
Testimony to the Council at its March 1998 meeting included
allegations of continuing problems with fish trap gear in the Florida
Keys area since implementation of the 10-year phaseout. Several
commenters in favor of an accelerated fish trap phaseout stated that
the continued use of the gear in the Gulf EEZ of the Florida Keys will
contribute to bycatch problems, user group conflicts, and illegal trap
use in adjacent state waters. Public testimony also indicated that
deployment of fish traps in the Gulf EEZ adjacent to the Florida Keys
during the 10-year period will continue to cause physical habitat
damage to the coral reef community. Following public testimony, the
Council proposed accelerating the phaseout, from 10 years to 4 years
(ending February 7, 2001), in the Florida Keys. Fish trap use would be
prohibited in the designated area after February 7, 2001.
In the area off the Florida Keys, the accelerated phaseout will
negatively impact those fish trap fishermen who had anticipated a 10-
year phaseout period and invested in fish trap gear or endorsements. It
would also negatively impact fish trap fishermen in the Florida Keys by
requiring them to travel to a point north of 25.05 deg. N. lat. to
deploy their traps. However, the Council anticipates that an
accelerated fish trap phaseout may reduce fishing pressure on reef fish
in the area south of 25.05 deg. N. lat.
Proposed Restrictions on the Possession of Reef Fish
The Council is proposing to prohibit the possession of reef fish
exhibiting the condition of trap rash (i.e., physical damage to fish
caused by the fish rubbing or scraping against, running into, butting,
or biting the wire mesh used to construct wire fish traps) on vessels
without valid fish trap endorsements. This trap rash management measure
is based on information that some vessels that land
[[Page 10614]]
reef fish with trap rash do not have valid fish trap endorsements and
continually deploy fish traps at sea in violation of the requirement
that traps be returned to port at the end of each trip. Persons on
these vessels do not possess fish traps on board longer than the time
required to empty the traps before returning them to the water. As a
result, law enforcement officials cannot prosecute these fishermen due
to lack of evidence of illegal trap deployment. In response, the
Council proposed to prohibit the possession of reef fish exhibiting the
condition of trap rash on board any vessel, except for vessels
possessing a valid fish trap endorsement, as this condition is prima
facie evidence of illegal trap use. The Council rejected
recommendations for reef fish trip limits on vessels fishing stone crab
and spiny lobster traps, because the Council concluded that, by putting
the burden on the fishermen to prove that they were legal fish trappers
if they possessed reef fish with trap rash, the trap rash provision
would be more enforceable than reef fish trip limits. NMFS fishery
scientists conducting research at sea have detected the trap rash
condition on reef fish remaining in illegally deployed fish traps. The
severity of the trap rash condition increases with the time a fish
spends in a wire trap. NMFS has reviewed this information and found no
evidence that trap rash could result from a source other than fish trap
use. As a result, illegal fish trap use is indicated by possession of
reef fish with the trap rash condition aboard vessels without a fish
trap endorsement.
Fish Trap Vessel Monitoring System (VMS)
The Council considered an electronic VMS for fish trap vessels as a
means to monitor regulated fish trap vessels and detect unlawful fish
trapping activity. NMFS currently is evaluating a device that uses
cellular telephone technology and, in addition to reporting vessel
location, can be configured to sense various operational aspects of
vessels in a fishery such as engine speed and operation of fishing gear
(e.g., winches).
The VMS costs are estimated in Amendment 16A to be relatively small
(approximately $1,000 for equipment, plus $500 installation cost per
vessel) in comparison to the costs of fish trap operations, including
acquiring a fish trap endorsement. Most fish trappers who commented on
this measure to the Council supported establishing a VMS and accepting
the associated VMS costs, if necessary, to allow themselves to continue
trap fishing through February 7, 2007 (the time period established
under Amendment 14 to the FMP).
The Council was unwilling to proceed with requiring VMS for fish
trap vessels without knowledge of the detailed cost of the system or
confirmation by NMFS that the system is viable. The Council has asked
NMFS to complete its evaluation of VMS system purchase/installation
costs and to test systems on fish trap vessels. Once this evaluation is
complete, NMFS will present the system design, costs, and
implementation schedule to the Council for its approval prior to
implementation. If the Council approves the VMS at that time, NMFS will
take the necessary steps to implement this action, if it is deemed
appropriate.
Additional Fish Trap Vessel Inspection and Reporting Requirements
Amendment 16A proposes a 1-month fish trap/vessel inspection period
and a requirement for fish trappers to report trip initiation and trip
termination times. The inspections will establish a baseline to assure
that all fish trap gear is in compliance with fish trap construction
and tagging requirements and that all participants are familiar with
the Federal regulations governing their fishery.
The proposed rule specifies that each fish trap vessel owner or
operator will contact NMFS by telephone to schedule the inspection
during an assigned 1-month period. On the inspection date, the owner or
operator must make all fish trap gear with attached trap tags and buoys
and all applicable permits available for inspection at a land-based
site. Vessels must also be made available for inspection. Vessels may
continue to use fish traps during the 1-month period until the
inspection is initiated. An owner or operator may resume fishing upon
completion of the inspection and a determination that all fish trap
gear, permits, and vessels are in compliance. However, an owner or
operator who fails to comply with the inspection requirements may not
use or possess fish traps in the Gulf EEZ until the required inspection
or reinspection has been completed and all fish trap gear, permits, and
vessels are determined to be in compliance. (See Changes Proposed by
NMFS.)
The proposed rule also requires trip initiation and termination
reports submitted by telephone, through the use of a 24-hour toll-free
number for each fishing trip on which a fish trap will be used or
possessed.
Council Minority Report on Amendment 16A
A minority report signed by two Council members opposes Amendment
16A and specifically raises concerns on the accelerated phase out of
fish traps off the Florida Keys. The minority report contends that
Amendment 16A is inconsistent with several Magnuson-Stevens Act
national standards. Copies of the minority report may be obtained from
the Council (see ADDRESSES).
Availability of and Comments on Amendment 16A
Additional background and rationale for the measures discussed
above are contained in Amendment 16A, the availability of which was
announced in the Federal Register on December 18, 1998 (63 FR 70093).
Written comments on Amendment 16A were solicited and must have been
received by February 16, 1999, to be considered in the approval/
disapproval decision on Amendment 16A. Comments received after that
date will not be considered in the approval/disapproval decision. All
comments received on Amendment 16A or on this proposed rule during
their respective comment periods will be addressed in the preamble to
the final rule.
Changes Proposed by NMFS
To improve compliance in the fishery, the Council proposed a 1-
month period for vessel inspections and user group education preceding
implementation of the trip initiation and termination reporting
requirements contained in Amendment 16A. The Council's objective is to
establish a baseline for ensuring that all fish trap gear used in the
Gulf of Mexico is in compliance with fish trap regulations. To achieve
that objective, NMFS is proposing to implement the vessel inspection
and user group education concept. However, NMFS finds that the need to
monitor compliance in the fishery will continue and, therefore,
proposes to continue the inspection and education period on an annual
basis. Because NMFS proposes that the inspections occur annually,
delaying implementation of the new reporting requirement is
impractical. As a result, NMFS also proposes to implement the trip
initiation and trip termination reporting requirement upon
effectiveness of the final rule.
Pursuant to section 311 of the Magnuson-Stevens Act, NMFS-
authorized officers possess the authority to inspect any vessel subject
to the Magnuson-Stevens Act without notice, at any time. However, for
consistency with the Council's proposal in
[[Page 10615]]
Amendment 16A, NMFS is proposing in this rule to provide advance notice
for the proposed annual inspections. Notice of annual inspections
conducted under this measure would be through the use of appointments,
as contemplated in Amendment 16A's initial inspection.
The amendment states that the Regional Administrator, Southeast
Region, NMFS (RA) will publish notification of the 1-month fish trap
inspection period in the Federal Register. NMFS proposes, in lieu of
that requirement, that the RA provide written notification to each
owner of a vessel that has a valid fish trap endorsement. NMFS believes
that direct notification of owners would be more effective.
NMFS solicits public comment on these proposed changes.
Classification
At this time, NMFS has not determined that the amendment that this
rule would implement is consistent with the national standards of the
Magnuson-Stevens Act and other applicable laws. NMFS, in making that
determination, will take into account the data, views, and comments
received during the comment period on Amendment 16A.
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
The Council prepared an IRFA, based on the RIR, that concludes that
Amendment 16A and this proposed rule, if adopted, would have
significant economic impacts on a substantial number of small entities.
A summary of the IRFA follows.
The rule is proposed to address fish trap fishing violations in
south Florida and to provide more effective monitoring and reporting
for all fish trapping operations. The Magnuson-Stevens Act provides the
legal basis for the rule, and no duplicative, overlapping, or
conflicting Federal rules were identified.
It was determined that 86 commercial fish trapping businesses and
an undetermined number of spiny lobster and stone crab fishermen, all
of which qualify as small business entities, would be affected by the
rule. Of the 86 fish trapping businesses, 12 have home ports in the
Keys and can expect a greater than 5-percent decrease in revenues if it
becomes illegal to use fish traps in the specified south Florida area
in 2 years. The action that would limit possession of Gulf reef fish
exhibiting trap rash to those vessels with a fish trap endorsement is
expected to reduce revenues of some stone crab and spiny lobster
fishermen. All the revenue losses are characterized as long-term with
no offsetting benefits to the small businesses identified. All 86
vessels would incur additional compliance costs (annualized capital,
operating and reporting costs).
Assuming that a VMS system is imposed in 1999 through a subsequent
rulemaking, the 86 firms would incur a capital cost for installation
estimated at $1500 per vessel plus undetermined annual costs of
maintenance and cellular phone reporting of VMS data. The 86 firms
would incur costs of reporting before and after each trip before a VMS
system was put into effect and would also incur costs associated with
having all gear inspected. The IRFA made no determination regarding the
number of small business entities that could be forced to cease
business operations if the proposals go into effect.
Alternatives are identified for the four proposed actions. In all
cases, the status quo provides the least adverse impact on small
entities, but the status quo was rejected as being incapable of
addressing the issue of fish trap violations. The other rejected
alternative to a 2-year phaseout of trapping in south Florida was a 2-
year phaseout of all fish trapping; it would have a much greater
negative impact. The VMS preferred alternative was for a design study
of a VMS system to be followed by implementation under a separate
rulemaking. One alternative recommended implementing the VMS system
directly. This alternative was rejected because of the implied costs
and the need for the design to be completed.
The proposed action regarding trip limits for vessels with reef
fish permits that are fishing spiny lobster and stone crab maintains
the status quo of no trip limits for possession of reef fish, but it
requires vessels to have a fish trap endorsement if there are fish
exhibiting trap rash on board. Other trip limit alternatives would
institute various trip limits. However, they were rejected because the
Council concluded that the trap rash provision would resolve
enforcement problems better by putting the burden on the fishermen to
prove that they were legal fish trappers if they possessed fish with
trap rash.
For the action recommending additional reporting requirements,
there were two alternatives that were both rejected on the basis of
creating greater negative impacts than the preferred alternative
without an offsetting improvement in the reporting process. The status
quo was rejected because of the need to manage the fishery better
through improved information gathering.
A copy of the IRFA is available from the Council (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 two new collection-of-information requirements
subject to the PRA--namely, a requirement for fish trap vessel
operators to provide, via toll-free telephone calls, trip initiation
and trip termination reports and an annual requirement for fish trap
owners/operators to schedule, via telephone call, an appointment with
NMFS enforcement to allow inspection of fish trap gear, fish trap
permits and tags, and vessels. These collection-of-information
requirements have been submitted to OMB for approval. The public
reporting burdens for the telephone calls for the trip initiation and
termination reports, and for scheduling the fish trap inspection are
estimated at 5 minutes each 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.
Public comment is sought regarding: Whether these proposed
collections of information are necessary for the proper performance of
the functions of the agency, including whether the information will
have practical utility; the accuracy of the burden estimates; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collections of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these, or any other aspects of the collections of information, 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: March 1, 1999.
Andrew A. Rosenberg, Ph.D.,
Deputy 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:
[[Page 10616]]
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. 622.5, paragraph (a)(1)(ii)(B) is added and reserved,
and paragraph (a)(1)(ii)(A) is added to read as follows:
Sec. 622.5 Recordkeeping and reporting.
* * * * *
(a) * * *
(1) * * *
(ii) * * *
(A) Fish traps. In addition to the other reporting requirements in
paragraph (a)(1)(ii) of this section, the owner or operator of a vessel
for which a fish trap endorsement has been issued, as required under
Sec. 622.4(a)(2)(i), must comply with the following requirements.
(1) Annual inspection. Each year, the RD will establish a 1-month
period for mandatory inspection of all fish trap gear, permits, and
vessels. The RD will provide written notification of the inspection
period to each owner of a vessel for which a fish trap endorsement has
been issued as required under Sec. 622.4(a)(2)(i). Each such owner or
operator must contact the Special Agent-in-Charge, NMFS, Office of
Enforcement, Southeast Region, St. Petersburg, FL (SAC) or his designee
by telephone (727-570-5344) to schedule an inspection during the 1-
month period. Requests for inspection must be made between 8:00 a.m.
and 4:30 p.m. Monday through Friday and must be made at least 72 hours
in advance of the desired inspection date. Inspections will be
conducted Monday through Friday between 8:00 a.m. and 4:30 p.m. only.
On the inspection date, the owner or operator must make all fish trap
gear with attached trap tags and buoys and all applicable permits
available for inspection on land. Vessels must also be made available
for inspection as directed by the SAC or his designee. Upon completion
of the inspection and a determination that all fish trap gear, permits,
and vessels are in compliance, an owner or operator may resume fishing
with the lawful gear. However, an owner or operator who fails to comply
with the inspection requirements during the 1-month inspection period
or during any other random inspection may not use or possess a fish
trap in the Gulf EEZ until the required inspection or reinspection, as
directed by the SAC, has been completed and all fish trap gear,
permits, and vessels are determined to be in compliance with all
applicable regulations.
(2) Trip reports. For each fishing trip on which a fish trap will
be used or possessed, an owner or operator of a vessel for which a fish
trap endorsement has been issued, as required under
Sec. 622.4(a)(2)(i), must submit a trip initiation report and a trip
termination report to the SAC or his designee, by telephone, using a
24-hour toll-free number that will be provided in the final rule.
(i) Trip initiation report. The trip initiation report must be
submitted before beginning the trip and must include: vessel name;
official number; number of traps to be deployed; sequence of trap tag
numbers; date, time, and point of departure; and intended time and date
of trip termination.
(ii) Trip termination report. The trip termination report must be
submitted immediately upon returning to port and prior to any
offloading of catch or fish traps. The trip termination report must
include: vessel name; official number; name and address of dealer where
catch will be offloaded and sold; the time offloading will begin;
notification of any lost traps; and notification of any traps left
deployed for any reason.
(B) [Reserved]
* * * * *
3. In Sec. 622.7, paragraph (d) is revised to read as follows:
Sec. 622.7 Prohibitions.
* * * * *
(d) Falsify or fail to maintain, submit, or provide information or
fail to comply with inspection requirements or restrictions, as
specified in Sec. 622.5(a) through (f).
* * * * *
4. In Sec. 622.31, paragraph (c)(2) is revised to read as follows:
Sec. 622.31 Prohibited gear and methods.
* * * * *
(c) * * *
(2) In the Gulf EEZ, a fish trap--
(i) May not be used or possessed west of 85 deg.30' W. long.;
(ii) May not be used, but may be possessed on board a vessel with a
valid fish trap endorsement for the sole purpose of transit, after
February 7, 2001, south of 25 deg.03' N. lat.; and
(iii) May not be used or possessed after February 7, 2007.
* * * * *
5. In Sec. 622.41, paragraph (i) is added to read as follows:
Sec. 622.41 Species specific limitations.
* * * * *
(i) Gulf reef fish exhibiting trap rash. Gulf reef fish in or from
the Gulf EEZ that exhibit trap rash may be possessed on board a vessel
only if that vessel has a valid fish trap endorsement, as required
under Sec. 622.4(a)(2)(i), on board. Possession of such fish on board a
vessel without a valid fish trap endorsement is prima facie evidence of
illegal trap use and is prohibited. For the purpose of this paragraph,
trap rash is defined as physical damage to fish that characteristically
results from contact with wire fish traps. Such damage includes, but is
not limited to, broken fin spines, fin rays, or teeth; visually obvious
loss of scales; and cuts or abrasions on the body of the fish,
particularly on the head, snout, or mouth.
[FR Doc. 99-5498 Filed 3-4-99; 8:45 am]
BILLING CODE 3510-22-F
