Reef Fish Fishery of the Gulf of Mexico

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--

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[FR Doc. 94-18683 Filed 7-27-94; 3:53 pm]

BILLING CODE 3510-22-P