[Federal Register Volume 59, Number 147 (Tuesday, August 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18683]
[[Page Unknown]]
[Federal Register: August 2, 1994]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 204 and 641
[Docket No. 940536-4202; I.D. 041994B]
RIN 0648-AG28
Reef Fish Fishery of the Gulf of Mexico
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule and notice of OMB control number.
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SUMMARY: NMFS issues this final rule to implement Amendment 9 to the
Fishery Management Plan for the Reef Fish Resources of the Gulf of
Mexico (FMP). Amendment 9 extends the current reef fish permit
moratorium from its scheduled expiration on May 8, 1995, through as
late as December 31, 1995. For the red snapper segment of the reef fish
fishery, Amendment 9 authorizes the collection of commercial landings
data for the years 1990 through 1992 and the collection of information
to identify certain participants. It also extends the red snapper
endorsement system and its associated trip and landing limits from
their scheduled expiration on December 31, 1994, through as late as
December 31, 1995. The intended effects of this rule are to collect
information needed to evaluate red snapper effort management
alternatives, to identify individuals who may qualify for initial
participation in a red snapper effort management regime, and to
continue interim management measures until the Gulf of Mexico Fishery
Management Council (Council) has an opportunity to implement longer-
term measures. This rule also informs the public of the approval by the
Office of Management and Budget (OMB) of two new collection-of-
information requirements contained in this rule and publishes the OMB
control number for those collections.
EFFECTIVE DATE: July 27, 1994, except that the amendment to
Sec. 204.1(b) and Secs. 641.7(ee) and 641.10 are effective July 27,
1994, through October 31, 1994.
FOR FURTHER INFORMATION CONTACT: Robert Sadler, 813-893-3161.
SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico
is managed under the FMP, which was prepared by the Council, and is
implemented through regulations at 50 CFR part 641 under the authority
of the Magnuson Fishery Conservation and Management Act (Magnuson Act).
The rationale for the measures in Amendment 9 and for the
additional changes to the regulations proposed by NMFS was included in
the proposed rule (59 FR 27258, May 26, 1994) and is not repeated here.
Comments and Responses
Comments on Amendment 9 and the proposed rule were received from
three individuals. Two of the commenters objected to Amendment 9 and
the proposed rule and the third supported them. Specific comments and
responses follow.
Comment: One person stated that the red snapper endorsement and
trip limit provisions and the reef fish permit moratorium are not cost
effective and should not be extended. The commenter's objections are
based on the contention that a red snapper individual transferable
quota (ITQ) system will not be implemented. The commenter also stated
that the trip limit provisions and moratorium are based on erroneous
and unverifiable data indicating overfishing of red snapper.
Response: The reef fish permit moratorium was implemented on May 8,
1992, for three years, to prevent continued speculative entry into the
fishery while the Council considers other reef fish effort management
alternatives, including an ITQ system. The red snapper endorsement and
trip limit provisions, first established by emergency action, were
continued through 1994 under Amendment 6 to prevent the occurrence of
an extremely short season and a ``derby'' fishery as occurred in 1992.
The Council has not yet determined if an ITQ system should be
implemented. The proposed voluntary landings data collection was
suggested by vessel owners, operators whose earned income qualified for
the vessel permit, and historical captains who were interested in
learning of their possible preliminary shares for planning purposes.
This information will help fishermen determine their most likely level
of participation in an ITQ system, if adopted for the fishery. The
Council, upon receipt of the data collected and analyzed under
Amendment 9 and after receipt of public comments from affected parties,
will decide whether to proceed with an ITQ or other effort management
system and the current target date for implementation of January 1,
1996.
The conditions in the fishery that led to implementation of the
permit moratorium and the red snapper endorsement system will remain
until a more comprehensive program is in place to limit fishing effort
in the red snapper fishery. The Council anticipates that the reef fish
fishery, particularly for red snapper, would be unnecessarily disrupted
if the moratorium and red snapper endorsement provisions expire before
implementation of an effort management system. The Council also
recognized that such provisions should not be continued indefinitely.
Accordingly, the Council determined that the permit moratorium and red
snapper endorsement system should be extended through December 31,
1995, or until such an effort management system can be implemented, if
before that date.
Concerning the validity of the scientific data that indicates that
red snapper are overfished, all such data undergo extensive scientific
review and verification prior to NMFS's assessment of the status of the
resource. The best available information continues to indicate that red
snapper are overfished.
Comment: The first commenter also objected to the proposed data
collection as duplicative and wasteful. The commenter believes that:
(1) NMFS already has obtained landings data as part of the red snapper
endorsement process, and (2) the requested submittal would allow
fraudulent landings records to be used to increase a person's share if
an ITQ system is implemented.
Response: Applicants for a red snapper endorsement on their reef
fish vessel permits submitted data only to document the specified
landing threshold of 5,000 pounds in any 2 of 3 qualifying years. In
contrast, the data collection proposed under Amendment 9 covers all red
snapper landings information for the period when data are readily
available (1990-1992). This collection will provide the Council with a
complete data base upon which to establish any effort management
system; because this collection covers the full three years for which
good data exists, it will avoid the need for additional collections.
Concerning fraudulent reporting, the data collection provisions are
designed to minimize that possibility. Dealer records and trip receipts
must definitively show the species known as red snapper and the
vessel's name, official number, or other reference that provides a way
of clearly identifying the vessel. Dealer records must contain a sworn
affidavit by the dealer confirming the accuracy and authenticity of the
records, under penalty of law. Accordingly, NMFS disagrees with the
comment and supports collection of data under these safeguards.
Comment: The first commenter also objected to the proposed
submittal of data by persons who believe they are historical captains.
The commenter characterized those persons as employees who do not share
in the losses sustained by the vessel owner and therefore should not be
entitled to participate in an ITQ system.
Response: After review of testimony and recommendations of the
Council's Ad Hoc Allocation Advisory Panel, the Council determined that
historical captains should be considered for fishing privileges under a
red snapper effort management system, as well as vessel owners and
operators whose earned income qualified for the vessel permit. NMFS
believes that collection of these data will provide the Council with
the information needed to determine if those persons warrant inclusion
in an effort management system as being developed under Amendment 8.
However, comments on allocation to historical captains are outside of
the scope of Amendment 9 and therefore are not addressed here.
Comment: The second commenter objected to the share agreement time
period specified in Sec. 641.10(a)(2)(i). That section specifies that a
share agreement must have been in effect from at least November 6,
1989, through 1993. The commenter claimed that the Council intended
that a historical captain fish solely under a share agreement only
through 1992, and that the final rule should be revised accordingly.
Response: NMFS has reviewed the administrative record in regard to
the referenced share agreement criterion, and concluded that the
Council intended that historical captains must document a share
agreement in effect up to the present time. At its March 1994 meeting,
the Council specifically rejected an alternative that would have
required share agreements only in 1990, 1991, and 1992. Since the final
rule will be implemented in mid-1994, 1993 is the most recent calendar
year with readily available records for a full year. NMFS therefore
disagrees with the commenter and supports the time period for share
agreements, as specified in Amendment 9 and the rule.
Comment: The second commenter also suggested that Sec. 641.10(a)(2)
include in the criteria to qualify as a historical captain the
requirement that a person must have landed red snapper at least once
prior to November 7, 1989.
Response: Section 641.10(d)(iv) requires an applicant for
historical captain status to submit documentation of a landing of red
snapper prior to November 7, 1989. NMFS agrees that, for consistency,
the requirement for such a landing should also be included in the
criteria for historical captain status, and it is added in this final
rule at Sec. 641.10(a)(2)(iv).
Comment: The second commenter also objected to the use of the word
``lease'' in one of the criteria for historical captain status,
primarily because of the present use of that term in the fishing
industry.
Response: NMFS agrees with the commenter and has removed the phrase
containing the word ``lease'' from Sec. 641.10(a)(2)(i).
Comment: The second commenter also objected to the statement in
Sec. 641.10(a)(2)(i) that the share agreement must have provided for
the operator to be responsible for hiring the crew, ``who were paid
from his or her share.'' The commenter suggested replacement text to
reflect the standard practice in the fishery for the ``buyer'' to write
the checks to the crew--after the captain determines shares and payment
to the crew.
Response: Neither the Council nor NMFS intended to establish as a
criterion for status as a historical captain that such person must have
written paychecks to his or her crew. The intent was that the share
agreement provide for proceeds to be divided between the owner and the
historical captain. Crew shares or payments would not be contained in
such share agreement. Rather, the historical captain would determine
payments to the crew, such payments coming from the share under the
control of the historical captain--without regard to who wrote the
checks. For clarity, the above quoted language is revised to read,
``who were paid from the share under his or her control.''
Comment: A third commenter provided various comments in support of
Amendment 9, noting the need to continue the effectiveness of the reef
fish permit moratorium and to then establish an ITQ system.
Response: NMFS agrees with this comment in support of Amendment 9.
However, remarks on an allocation system such as an ITQ system or other
effort management option are outside the scope of Amendment 9 and are
not included here.
Approval of Amendment 9
On July 20, 1994, the Director, Southeast Region, NMFS (Regional
Director), approved Amendment 9.
Changes From the Proposed Rule
In Sec. 641.2, the address in the definition of ``Regional
Director'' is corrected.
As noted above under Comments and Responses, Sec. 641.10(a)(2)(i)
is revised and Sec. 641.10(a)(2)(iv) is added. An additional change is
made to Sec. 641.10(a)(2)(i) to clarify that a historical captain may
have fished under more than one share agreement during the required
period.
A new Sec. 641.10(b)(3) is added to clarify the procedures whereby
owners/operators will receive printouts of existing NMFS data on
landings of red snapper during 1990 through 1992. The provisions for
owners/operators to submit records of landings they believe were
omitted from NMFS data are moved to Sec. 641.10(c)(1).
Classification
This final rule has been determined to be not significant for
purposes of E.O. 12866.
The General Counsel of the Department of Commerce certified to the
Chief Counsel for Advocacy of the Small Business Administration that
this rule would not have a significant economic impact on a substantial
number of small entities. The reasons were published in the preamble to
the proposed rule (59 FR 27258, May 26, 1994). As a result, a
regulatory flexibility analysis was not prepared.
This final rule contains collection-of-information requirements
subject to the Paperwork Reduction Act--specifically, information on
landings of red snapper and documentation of status as a historical
captain in the red snapper fishery. These collections of information
have been approved by OMB under OMB control number 0648-0281. The
public reporting burdens for these collections of information are
estimated to average 2 and 5 hours per response, respectively,
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 these
burden estimates or any other aspect of the collections of information,
including suggestions for reducing the burdens, 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).
The data to be collected under this final rule are needed by
fishermen and the Council to evaluate the effects of potential effort
management systems for the red snapper segment of the reef fish
fishery. That segment is managed under measures that expire December
31, 1995. To provide ample time to collect the data, present it to the
fishermen and the Council, evaluate its effects, and develop, approve,
and implement additional management measures prior to December 31,
1995, it is necessary that the data collection under this rule commence
as soon as possible. To that end, information regarding the proposed
data collection has been broadly disseminated to the fishing community
prior to this final rule. The other measures in this final rule are
extensions of effectiveness or clarifications of measures that are
currently in effect and, thus, do not affect current fishing practices.
Accordingly, the Assistant Administrator for Fisheries, NOAA, finds for
good cause under section 553(d)(3) of the Administrative Procedure Act
that the effectiveness of this final rule should not be delayed.
List of Subjects
50 CFR Part 204
Reporting and recordkeeping requirements.
50 CFR Part 641
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: July 27, 1994.
Gary Matlock,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR parts 204 and 641
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).
2. Effective from July 27, 1994, through October 31, 1994, in
Sec. 204.1(b), the table is amended by adding in the left column, in
numerical order, ``Sec. 641.10 (c) and (d)'', and in the right column,
in corresponding position, the control number ``-0281''.
PART 641--REEF FISH FISHERY OF THE GULF OF MEXICO
3. The authority citation for part 641 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
4. In Sec. 641.2, the definition of ``Regional Director'' is
revised to read as follows:
Sec. 641.2 Definitions.
* * * * *
Regional Director means the Director, Southeast Region, NMFS, 9721
Executive Center Drive, St. Petersburg, FL 33702, telephone 813-893-
3141; or a designee.
* * * * *
5. In Sec. 641.4, paragraph (m) introductory text, paragraph
(m)(4), paragraph (o) introductory text, and paragraphs (p)(4) and
(p)(5) are revised, and introductory text for paragraph (n) is added to
read as follows:
Sec. 641.4 Permits and fees.
* * * * *
(m) Moratorium on permits. This paragraph (m) is effective through
December 31, 1995.
* * * * *
(4) A permit 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 Regional Director within 1 year of
the expiration date of the permit.
(n) Red snapper endorsement. This paragraph (n) is effective
through December 31, 1995.
* * * * *
(o) Condition of a permit. Effective through December 31, 1995, as
a condition of a reef fish permit issued under this section, without
regard to where red snapper are harvested or possessed, a permitted
vessel--
* * * * *
(p) * * *
(4) A fish trap endorsement is not transferable upon change of
ownership of a vessel with a fish trap endorsement, except when such
change of ownership is from one to another of the following: Husband,
wife, son, daughter, brother, sister, mother, or father. In the event
of such transfer of a fish trap endorsement, the new owner of the
vessel may renew the endorsement without regard to the requirement of
paragraph (p)(1) of this section regarding a record of landing of reef
fish from fish traps.
(5) A fish trap endorsement that is not renewed or that is revoked
will not be reissued. A fish trap endorsement is considered to be not
renewed when an application for renewal is not received by the Regional
Director within one year of the expiration date of the permit.
6. In Sec. 641.7, effective from July 27, 1994, through October 31,
1994, a new paragraph (ee) is added to read as follows:
Sec. 641.7 Prohibitions.
* * * * *
(ee) Falsify information submitted in accordance with Sec. 641.10.
7. In subpart A, effective from July 27, 1994, through October 31,
1994, a new Sec. 641.10 is added to read as follows:
Sec. 641.10 Red snapper data collection.
(a) General. (1) To evaluate red snapper effort management
alternatives, including individual transferable quota (ITQ) systems and
license limitations, it is necessary to obtain commercial red snapper
landings data for the years 1990 through 1992. To identify individuals
who may qualify for initial participation in a red snapper effort
management regime, it is necessary to identify certain participants in
the red snapper fishery, specifically, operators of vessels who were
the earned income qualifiers for the vessels' reef fish permits and
those who are ``historical captains.'' In the latter case,
determination of a historical captain's share agreement with the
vessel's owner is also required.
(2) For the purpose of the red snapper effort limitation
alternatives, a historical captain means an operator who--
(i) From November 6, 1989, through 1993, fished solely under verbal
or written share agreements with an owner, such agreements provided for
the operator to be responsible for hiring the crew, who were paid from
the share under his or her control;
(ii) Landed from that vessel at least 5,000 lb (2,268 kg) of red
snapper per year in 2 of the 3 years 1990, 1991, and 1992;
(iii) Derived more than 50 percent of his or her earned income from
commercial fishing, that is, sale of the catch, in each of the years
1989 through 1993; and
(iv) Landed red snapper prior to November 7, 1989.
(3) The data collection described in this section will be the only
collection for the effort management alternatives currently being
considered by the Council. Accordingly, failure to submit requested
data may result in failure to be included among the initial
participants in the red snapper fishery under an effort management
system and/or failure to obtain the full initial share of red snapper
to which a person may be entitled under an ITQ regime.
(b) Existing data. (1) NMFS has records of all red snapper landings
reported by vessel logbook forms submitted pursuant to Sec. 641.5 (a)
or (b) and has access to records of red snapper landings reported under
Florida's trip ticket system. NMFS also has records of the earned
income qualifier for each vessel permit issued for reef fish. Data
duplicating these records are not needed.
(2) Landings of red snapper reported by vessel logbook forms and
received by the Science and Research Director prior to September 16,
1992, are conclusive as to red snapper landed during the months that
such logbook forms were required of, or voluntarily submitted by, a
vessel--landings data from other sources will not be considered for
such months. In the absence of landings data from such logbook forms,
landings of red snapper reported under Florida's trip ticket system and
received by the State prior to September 16, 1992, are conclusive as to
landings in Florida--landings data from other sources will not be
considered for landings in Florida.
(3) On or about August 1, 1994, vessel owners, and operators whose
earned income was used to qualify for a vessel permit, will be mailed
printouts of their logbook/trip ticket records of landings of red
snapper during 1990 through 1992 and forms for the reporting of
additional landings. An owner, or such operator, who had such landings
and who does not receive a printout by August 8, 1994, must contact the
Regulations and Permits Branch, Southeast Region, NMFS, telephone (813)
893-3722, for such printout and forms.
(c) Additional landings data. (1) An owner or operator who wishes
to be considered for initial participation in the red snapper fishery
under an effort management system may submit documentation of red
snapper landings not covered by vessel logbook forms or the Florida
trip ticket system or documentation of landings that he or she believes
were erroneously omitted from the logbook/trip ticket records.
(i) Such documentation may consist of copies of trip receipts that
show dates and amounts of landings of red snapper. Trip receipts must
definitively show the species known as red snapper and the vessel's
name, official number, or other reference that provides a way of
clearly identifying the vessel.
(ii) Such documentation may also consist of dealer records that
show dates and amounts of landings of red snapper. As with trip
receipts, dealer records must definitively show the species known as
red snapper and the vessel's name, official number, or other reference
that provides a way of clearly identifying the vessel. Dealer records
must contain a sworn affidavit by the dealer confirming the accuracy
and authenticity of the records. A sworn affidavit is an official
written statement wherein the individual signing the affidavit affirms
that the information presented is accurate and can be substantiated,
under penalty of law.
(iii) Documentation by a combination of trip receipts and dealer
records is acceptable, but duplicate records for the same landings are
not acceptable.
(2) Red snapper landings data will not be accepted--
(i) For a period during which the harvesting vessel did not have a
permit, provided a permit was required during such period. Permits were
not required from January 1 through April 22, 1990, and from January 1
through 31, 1992.
(ii) For a period during which the commercial red snapper fishery
in the EEZ was closed. The commercial red snapper fishery was closed in
the EEZ from August 24 through December 31, 1991, from February 22
through April 2, 1992, and from May 15 through December 31, 1992.
(3) Additional landings data submitted under this paragraph (c)
must be attached to a Red Snapper Landings Data form, which is
available from the Regional Director, and must be postmarked not later
than September 30, 1994.
(d) Historical captains. (1) An operator who wishes to be
considered for status as a historical captain in the red snapper
fishery under an effort management system may submit documentation of
such status by providing the following:
(i) A Historical Captain Status form, available from the Regional
Director, which requests information necessary to determine such status
and information to establish the share agreement of a historical
captain with the vessel's owner;
(ii) A Red Snapper Landings Data form and accompanying additional
landings data pursuant to paragraph (c) of this section, if such form
and data have not been submitted by a vessel owner;
(iii) Copies of forms and schedules from the applicant's income tax
returns for the years 1989 through 1993 that show total earned income
and that part of earned income derived from commercial fishing, that
is, sale of the catch (generally, pages 1 and 2 of Form 1040, W-2's,
and Schedule C); and
(iv) Documentation of a landing of red snapper prior to November 7,
1989.
(2) Forms and information submitted under paragraph (d)(1) of this
section must be postmarked not later than September 30, 1994.
(e) Verification. Documentation of red snapper landings,
documentation of status as a historical captain, and other information
submitted under this section are subject to verification by comparison
with state, Federal, and other records and information. Submission of
false documentation or information may disqualify a person from initial
participation under a red snapper effort management system.
8. In Sec. 641.23, paragraphs (b)(1) introductory text and (d)(2)
introductory text are revised to read as follows:
Sec. 641.23 Area limitations.
* * * * *
(b) * * *
(1) Longline and buoy gear may not be used to fish for reef fish in
the longline and buoy gear restricted area. For the purpose of this
paragraph (b), ``for reef fish'' means possessing or landing reef
fish--
* * * * *
(d) * * *
(2) In the SMZ specified in paragraph (d)(1) of this section,
fishing for reef fish is limited to hook-and-line gear with three or
fewer hooks per line and spearfishing gear. For the purpose of this
paragraph (d), ``for reef fish'' means possessing reef fish aboard or
landing reef fish from--
* * * * *
[FR Doc. 94-18683 Filed 7-27-94; 3:53 pm]
BILLING CODE 3510-22-P
