Reef Fish Fishery of the Gulf of Mexico

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 641

[Docket No. 931070-4010; ID 100493A]

RIN 0648-AF84

Reef Fish Fishery of the Gulf of Mexico

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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

Fishery Management Plan for the Reef Fish Resources of the Gulf of

Mexico (FMP). This rule requires dealers who purchase from fishing

vessels reef fish caught in the exclusive economic zone (EEZ) to obtain

Federal permits and maintain records of such purchases; allows the

transfer of a fish trap endorsement with the transfer of the vessel's

reef fish permit to an immediate family member; and allows the transfer

or revision of a red snapper endorsement on a reef fish vessel permit

upon the disability or death of a vessel owner or, in certain

circumstances, an operator. The intended effects of this rule are to

enhance enforceability of the regulations, improve quota monitoring of

reef fish species, allow families that have historically fished in the

Gulf of Mexico with fish traps to continue such fishing, and alleviate

hardships caused by disability or death of owners/operators no longer

able to use red snapper endorsements.

EFFECTIVE DATE: February 7, 1994; except that Sec. 641.5(d) is

effective on March 14, 1994 and Sec. 641.7(bb) is effective April 1,

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. The FMP was prepared by the Gulf of Mexico

Fishery Management Council (Council) and is implemented through

regulations at 50 CFR part 641 under the authority of the Magnuson

Fishery Conservation and Management Act (Magnuson Act).

Detailed descriptions, backgrounds, and rationales for the

management measures in Amendment 7 and the additional measures proposed

by NMFS were included in the proposed rule (58 FR 57771, October 27,

1993) and are not repeated here.

Comments and Responses

Three comments were received from the public. In addition, a

minority report was submitted by three Council members. Comments and

responses are as follows.

Comment: The Council minority report objected to the requirements

for dealer permits and recordkeeping and the prohibition on sale of

reef fish except between permitted dealers and permitted fishing

vessels. According to the minority report, the final Amendment 7

measures unduly restrict free enterprise by requiring that federally

permitted dealers purchase reef fish only from federally permitted

fishing vessels (when purchasing from a vessel) and that permitted

vessels sell reef fish only to permitted dealers. The report claimed

that these measures will have the following specific effects: (1) That

preventing federally permitted dealers from purchasing reef fish caught

in state waters from non-federally permitted vessels will cause severe

economic impacts on dealers no longer able to buy reef fish caught in

state waters; may allow permitted dealers to set the ex-vessel price

for reef fish; and will preclude vessels from selling their product at

the highest possible price; (2) duplicates reporting requirements by

the states; and (3) prevents dealers from purchasing imported reef fish

from other nations or from dealers in other areas of the Gulf of Mexico

or South Atlantic.

Response: The draft Amendment 7 document presented by the Council

at public hearings contained a measure requiring that when federally

permitted reef fish dealers purchase reef fish from fishing vessels,

such purchases be made only from federally permitted vessels; however,

the amendment did not adequately discuss a complementary measure

requiring permitted reef fish vessels to sell reef fish only to

permitted dealers (subject measure). At the July 1993 Council meeting,

based on information available at that time, the Council voted to

include in the final Amendment 7 the subject measure requiring

permitted reef fish vessels to sell reef fish only to permitted

dealers. Subsequently, the Council submitted the amendment for

Secretarial review and approval. Based on the public comments received

on the amendment and the proposed rule during Secretarial review, and

on a review by NOAA General Counsel of the history of the development

of the subject measure, NMFS determined that the subject measure did

not comply with the public hearing requirements of section 302(h) of

the Magnuson Act. For this reason, NMFS has disapproved the requirement

that permitted vessels may sell reef fish only to permitted dealers.

The FMP measure was approved requiring that if federally permitted

dealers purchase reef fish from fishing vessels, such purchases be made

solely from federally permitted vessels. However, after considering

this approved measure as it stands alone without the complementary

measure requiring permitted reef fish vessels to sell only to permitted

dealers, the Secretary has decided to defer its implementation pending

(1) the Council's reconsideration of the disapproved complementary

measure, and (2) review of the potential full range of economic and

social impacts of this measure on fishermen, particularly on non-

federally permitted reef fish vessels lawfully fishing exclusively in

state waters.

In response to the Council's minority report claims regarding the

economic effects of the measures restricting buying and selling of reef

fish between dealers and vessels (report item 1), none of the approved

and implemented measures of Amendment 7 are expected to have these

alleged effects. Also, under Amendment 7, it is expected that dealers

who wish to continue purchasing reef fish harvested in Gulf Federal

waters will obtain a NMFS permit, while other dealers will not. NMFS

recognizes that this may cause some shifts in the availability of reef

fish to permitted dealers. However, these market changes, in

themselves, should not significantly affect the reef fish price

structure or prevent vessels from obtaining fair prices for their

catch.

In response to the minority report statement that mandatory

recordkeeping duplicates reporting requirements by the states (report

item 2), not all the Gulf states require dealer reports. As a result,

the provision is needed to provide landings information from all

dealers (Gulf-wide). For those states with similar reporting

requirements, NMFS recognizes that some of the data to be furnished

under Amendment 7 may track that currently being reported. Nonetheless,

despite the possibility of duplication, the Federal dealer reporting

system established under Amendment 7 will provide significant benefits

by facilitating verification of the catches reported by vessels on the

NMFS vessel logbook system. Such verification, in turn, will allow more

accurate monitoring of the quotas and thereby enhance the reef fish

management program.

In response to the minority report statement that the measures will

prevent permitted dealers from purchasing reef fish from other nations

or from dealers in areas outside the Gulf of Mexico (report item 3),

none of the approved and implemented measures of Amendment 7 will

affect dealer-to-dealer commercial transactions. As an additional

point, management measures approved and implemented under FMP

Amendments 5 and 7 will not prevent permitted Gulf of Mexico reef fish

dealers from buying reef fish harvested from waters of the South

Atlantic and not possessed in the EEZ of the Gulf of Mexico. Finally,

and as noted above, implementation of the Amendment 7 measure

restricting permitted dealers to buying reef fish only from permitted

vessels has been deferred.

Comment: One of the individual commenters also claimed that: (1)

Negative comments on draft Amendment 7 at the Council public hearings

were not reflected in the minutes made available at the July 1993

Council meeting, and therefore were not considered in the deliberations

leading to submittal of Amendment 7 for Secretarial review; (2) the

public was not adequately notified prior to Council hearings that

Amendment 7 includes a proposal that federally permitted vessels sell

only to federally permitted dealers; (3) Secretarial action on

Amendment 7 should be delayed pending outcome of an ongoing lawsuit

regarding the criteria for obtaining red snapper endorsements on reef

fish permits; and (4) the options to control access to the red snapper

fishery that were presented at public hearings on draft Amendment 7

should not be transferred to a subsequent amendment.

Response: The following four responses address each corresponding

item in the order listed above:

(1) The summary minutes presented to the Council at its July 1993

meeting reflect all public comments received by the Council on draft

Amendment 7. Those minutes include remarks made by the commenter at

public hearings in Galveston and Port Aransas, Texas, held on the draft

amendment. NMFS believes that the administrative record before the

Council when it made final decisions regarding the contents of

Amendment 7 included all public comments received by the Council,

including all objections to specific management measures.

(2) NMFS concurs with the commenter that there was inadequate

public review of the requirement that permitted vessels sell only to

permitted dealers and has disapproved this measure in Amendment 7 for

the reasons previously stated.

(3) The measures contained in Amendment 7 include dealer permitting

and recordkeeping, transfer of fish trap endorsements between family

members, and transfer of red snapper endorsements upon death or

disability. These management measures are not at issue in the lawsuit

referred to by the commenter.

(4) Draft Amendment 7 previously included a wide variety of

management measures, most notably a series of options to limit access

to the red snapper fishery. Early public review of the draft document

indicated that (a) additional time was needed for the Council to

properly develop the limited access and license limitation options, and

(b) timely action was needed on other changes to the reef fish

management program as are contained in the final Amendment 7 submitted

by the Council. As provided under the procedures of the Magnuson Act,

the proposals for limited access will undergo further public review and

comment and may be submitted by the Council for Secretarial review

under a future FMP amendment. In the interim, the other measures of the

final Amendment 7 were appropriately submitted by the Council for

Secretarial review, approval, and implementation (with the exception of

the disapproved measure restricting permitted vessels from selling to

only permitted dealers).

Comment: An owner of a seafood house objected to the requirement

for dealer permits and mandatory recordkeeping as burdensome and

unnecessarily duplicative of other similar reporting systems.

Response: NMFS and the Council recognize that the requirement for

dealer permits may constitute an inconvenience. However, any

inconvenience should be outweighed by the substantive benefits expected

from dealer permitting, namely, improved quota monitoring by providing

a census of reef fish dealers as well as enhanced enforceability of the

vessel trip limits.

As described in the proposed rule, the maintenance of dealer

records of reef fish purchases would formalize what is considered to be

the standard industry practice of maintaining such records. For dealers

currently conforming to that standard, the mandatory recordkeeping

provision would not be an additional requirement. Availability of the

dealers' records will provide a means of verification of information

submitted in fishing vessel logbooks.

Information available to the Council indicates that these benefits

are not uniformly attained from the licensing and reporting systems in

effect in some of the Gulf states. The additional burdens of dealer

permits and recordkeeping are considered to be minimal. Accordingly,

NMFS concurs with the requirement of Amendment 7 for dealer permits and

recordkeeping.

Comment: One individual offered general support for Amendment 7,

and also expressed his views on the earlier proposed 1-year

experimental adjustment to the longline/buoy gear area boundary in the

EEZ off Florida.

Response: For the reasons stated above, NMFS concurs with the

individual in his support for Amendment 7, with the exception of the

disapproved provision. However, the experimental longline boundary

proposal, recently withdrawn by the Council, is outside the scope of

Amendment 7 and comments on this topic are not addressed here.

Changes From the Proposed Rule

The proposed rule at Sec. 641.5(d)(1) would have required a dealer

to maintain a record of reef fish ``harvested from the Gulf of Mexico''

that the dealer receives. NMFS considers it an unnecessary burden on

dealers to require that they ascertain where the fish were caught.

Accordingly, this final rule removes the quoted language.

For the reasons discussed above, the proposed requirements that

reef fish harvested aboard permitted vessels be sold only to permitted

dealers and that permitted dealers purchase reef fish only from

permitted vessels, contained in Sec. 641.7(cc) and (dd) and Sec. 641.28

of the proposed rule, are deleted.

Since the proposed rule was published, NMFS has revised the reef

fish regulations through a framework measure (58 FR 68325, December 27,

1993) and implementation of Amendment 5 to the FMP (59 FR 966, January

7, 1994). Accordingly, some references and paragraphs in this final

rule differ from those in the proposed rule.

Partial Disapproval of Amendment 7

On January 6, 1994, the Secretary of Commerce partially disapproved

Amendment 7. As discussed above, the provision that required permitted

vessels to sell harvested reef fish only to permitted dealers was

disapproved.

Effective Dates

A number of management measures implemented by this final rule

depend, for application and enforcement, on the presence or absence of

a dealer permit. To ensure timely implementation of these measures, it

is necessary to make the permitting procedural requirements effective

as soon as practicable. New Sec. 641.4 (a)(2) and (c) contain these

procedural requirements and revised Sec. 641.7(a) contains the

prohibition applicable to applications for dealer permits. The

redesignation of paragraphs and corrections of references in

Sec. 641.4, additional changes in Sec. 641.4 (b) and (d) through (i),

and changes to the prohibitions at Sec. 641.7 (b) and (c) are

housekeeping changes related to the addition of dealer permits. Because

delay in effectiveness of these measures is not in the public interest,

the Assistant Administrator for Fisheries, NOAA (Assistant

Administrator), finds that good cause exists under section 553(d)(3) of

the Administrative Procedure Act (APA) not to delay their effective

date.

This final rule allows, under specified conditions, transfers of

red snapper endorsements and fish trap endorsements that were not

previously allowed. Since Sec. 641.4(n)(3) and (p)(4) relieve

restrictions, the Assistant Administrator finds that good cause exists

under section 553(d)(1) of the APA not to delay their effective date.

However, since the provisions for fish trap endorsements are not

effective until February 7, 1994 (see 59 FR 966, January 7, 1994), and

for simplicity, the specified sections in this and the preceding

paragraph for which delayed effectiveness under the APA is waived are

effective February 7, 1994.

Changes to dealer recordkeeping and reporting requirements,

Sec. 641.5(d), are effective on March 14, 1994.

The prohibition at Sec. 641.7(bb) on purchasing from a fishing

vessel reef fish harvested from the EEZ without a dealer permit is not

effective until April 1, 1944. The delayed effective date of this

prohibition will allow sufficient time for dealers to obtain and submit

applications for permits and for NMFS to process and issue permits.

Classification

The Secretary of Commerce determined that Amendment 7 is necessary

for the conservation and management of the reef fish fishery and that

it is consistent with the national standards, other provisions of the

Magnuson Act, and other applicable law, with the exception of the

measure requiring reef fish harvested by permitted vessels to be sold

only to permitted dealers.

This rule is not subject to review under E.O. 12866.

This final rule contains two new collection-of-information

requirements subject to the Paperwork Reduction Act. The new

collections have been approved by the Office of Management and Budget

and the following OMB control numbers apply: (1) Applications for

dealer permits, 0648-0205; and (2) the requirement that dealers

maintain for at least 1 year their records of reef fish purchases from

fishing vessels, 0648-0013. The public reporting burden for the dealer

permitting collection of information is estimated to average 5 minutes

per response. The public reporting burden for the maintenance of dealer

records collection of information is estimated to average 40 minutes

per response for those few dealers who are not currently maintaining

such records. These burden estimates include 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, 9450 Koger Boulevard, St. Petersburg, FL 33702 and to the Office

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

(Attention: NOAA Desk Officer).

List of Subjects in 50 CFR Part 641

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: February 7, 1994.

Nancy Foster,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set forth in the preamble, 50 CFR part 641 is

amended as follows:

PART 641--REEF FISH FISHERY OF THE GULF OF MEXICO

1. The authority citation for part 641 continues to read as

follows:

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

2. In Sec. 641.4, paragraphs (a)(1) through (a)(5) are redesignated

as paragraphs (a)(1)(i) through (a)(1)(v) and paragraphs (c) through

(o) are redesignated as paragraphs (d) through (p); in newly designated

paragraph (m) introductory text, the reference to ``this paragraph

(l)'' is revised to read ``this paragraph (m)''; in newly designated

paragraph (m)(1), the reference to ``paragraphs (l)(2) and (l)(3) of

this section'' is revised to read ``paragraphs (m)(2) and (m)(3) of

this section''; in newly designated paragraphs (m)(2) and (n)(2), the

phrase ``owned by him or her'' is revised to read ``owned by the same

entity''; in newly designated paragraph (p) introductory text, the

reference to ``this paragraph (o)'' is revised to read ``this paragraph

(p)''; paragraph (b) heading and newly designated paragraphs (d)

through (i) and (p)(4) are revised; and new paragraphs (a)(1) heading,

(a)(2), (c), and (n)(3) are added to read as follows:

Sec. 641.4 Permits and fees.

(a) * * *

(1) Annual vessel permits.

* * * * *

(2) Annual dealer permits. A dealer who receives from a fishing

vessel reef fish harvested from the EEZ to the Gulf of Mexico must

obtain an annual dealer permit. To be eligible for such permit, an

applicant must have a valid state wholesaler's license in the state(s)

where the dealer operates, if required by such state(s), and must have

a physical facility at a fixed location in such state(s).

(b) Application for an annual vessel permit.

* * * * *

(c) Application for an annual dealer permit.

(1) An application for a dealer permit must be submitted and signed

by the dealer or an officer of a corporation acting as a dealer. The

application must be submitted to the Regional Director at least 30 days

prior to the date on which the applicant desires to have the permit

made effective.

(2) A permit applicant must provide the following information:

(i) A copy of each state wholesaler's license held by the dealer.

(ii) Business name; mailing address, including zip code, of the

principal office of the business; telephone number; employer

identification number, if one has been assigned by the Internal Revenue

Service; and the date the business was formed.

(iii) The address of each physical facility at a fixed location

where the business receives fish.

(iv) Name, official capacity in the business, mailing address

including zip code, telephone number, social security number, and date

of birth of the applicant.

(v) Any other information requested by the Regional Director that

may be necessary for the issuance or administration of the permit.

(d) Change in application information. The owner or operator of a

vessel with a permit or a dealer with a permit must notify the Regional

Director within 30 days after any change in the application information

specified in paragraph (b) or (c) of this section. The permit is void

if any change in the information is not reported within 30 days.

(e) Fees. A fee is charged for each permit application submitted

under paragraph (b) or (c) of this section and for each fish trap

identification tag required under Sec. 641.6(d). The amount of each fee

is calculated in accordance with the procedures of the NOAA Finance

Handbook for determining the administrative costs of each special

product or service. The fee may not exceed such costs and is specified

with each application form. The appropriate fee must accompany each

application or request for fish trap identification tags.

(f) Issuance. (1) The Regional Director will issue a permit at any

time to an applicant if the application is complete and, in the case of

an application for a vessel permit, the applicant meets the earned

income requirement specified in paragraph (b)(2)(xi) of this section.

An application is complete when all requested forms, information, and

documentation have been received and the applicant has submitted all

applicable reports specified at Sec. 641.5.

(2) Upon receipt of an incomplete application, the Regional

Director will notify the applicant of the deficiency. If the applicant

fails to correct the deficiency within 30 days of the date of the

Regional Director's letter of notification, the application will be

considered abandoned.

(g) Duration. A permit remains valid for the period specified on it

unless it is revoked, suspended, or modified pursuant to subpart D of

15 CFR part 904 or the vessel or dealership is sold.

(h) Transfer. A vessel permit or endorsement or dealer permit

issued under this section is not transferable or assignable, except as

provided under paragraph (m) of this section for a vessel permit, as

provided under paragraph (n) of this section for a red snapper

endorsement, or as provided under paragraph (p) of this section for a

fish trap endorsement. A person who acquires a vessel or dealership who

desires to conduct activities for which a permit or endorsement is

required must apply for a permit or endorsement in accordance with the

provisions of this section. The application must be accompanied by a

copy of a signed bill of sale or equivalent acquisition papers.

(i) Display. A vessel permit or endorsement issued under this

section must be carried on board the vessel and such vessel must be

identified as provided for in Sec. 641.6. A dealer permit issued under

this section must be available at the dealer's principal place of

business. In addition, a copy of the dealer's permit must accompany

each vehicle that is used to pick up from a fishing vessel reef fish

harvested from the EEZ of the Gulf of Mexico. The operator of a vessel,

a dealer, or a vehicle operator must present the permit or, in the case

of a vehicle operator, a copy of the permit for inspection upon the

request of an authorized officer.

* * * * *

(n) * * *

(3) The provisions of paragraph (n)(2) of this section

notwithstanding, special provisions apply in the event of the

disability or death of the owner of a vessel with a red snapper

endorsement or the disability or death of an operator whose presence on

board the vessel is a condition for the validity of a red snapper

endorsement.

(i) In the event that a vessel with a red snapper endorsement has a

change of ownership that is directly related to the disability or death

of the owner, the Regional Director may issue a red snapper

endorsement, temporarily or permanently, with the reef fish permit 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. (Change of ownership of a

vessel with a reef fish permit upon disability or death of an owner is

considered a purchase of a permitted vessel and paragraph (m)(3) of

this section applies regarding a reef fish permit for the vessel under

the new owner.)

(ii) In the event of the disability or death of an operator whose

presence on board a permitted vessel is a condition for the validity of

a red snapper endorsement, the Regional Director may revise and reissue

an endorsement, temporarily or permanently, to the permitted vessel.

Such revised endorsement will contain the name of a substitute operator

specified by the operator or his/her legal guardian, in the case of a

disabled operator, or by the will or executor/administrator of the

estate, in the case of a deceased operator. As was the case with the

replaced endorsement, the presence of the substitute operator on board

and in charge of the vessel is a condition for the validity of the

revised endorsement. Such revised endorsement will be reissued only

with the concurrence of the vessel owner.

* * * * *

(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.

* * * * *

3. In Sec. 641.5, paragraph (d) is revised to read as follows:

Sec. 641.5 Recordkeeping and reporting.

* * * * *

(d) Dealers. A person who receives reef fish by way of purchase,

barter, trade, or sale from a fishing vessel or person that fishes for

or lands reef fish from the EEZ or adjoining state waters, must

maintain records and submit information as follows:

(1) A dealer must maintain at his/her principal place of business a

record of reef fish that he/she receives. The record must contain the

name of each fishing vessel from which reef fish were received and the

date, species, and quantity of each receipt. A dealer must retain such

record for at least 1 year after receipt date and must provide such

record for inspection upon the request of an authorized officer or the

Science and Research Director.

(2) When requested by the Science and Research Director, a dealer

must provide the following information from his/her record of reef fish

received: Total poundage of each species received during the requested

period, average monthly price paid for each species by market size, and

proportion of total poundage landed by each gear type.

(3) The operator of a car or truck that is used to pick up from a

fishing vessel reef fish harvested from the Gulf of Mexico must

maintain a record containing the name of each fishing vessel from which

reef fish on the car or truck have been received. The vehicle operator

must provide such record for inspection upon the request of an

authorized officer.

* * * * *

4. In Sec. 641.7, in paragraph (y), the reference to

``Sec. 641.4(a)(4) and (o)(2)'' is revised to read

``Sec. 641.4(a)(1)(iv) and (p)(2)''; paragraphs (a), (b), and (c) are

revised; paragraphs (bb) and (cc) are designated as paragraphs (cc) and

(dd); and new paragraph (bb) is added to read as follows:

Sec. 641.7 Prohibitions.

* * * * *

(a) Falsify information specified in Sec. 641.4 (b) or (c) on an

application for a permit, information on an application for an

endorsement on a permit, or information regarding a transfer or

revision of an endorsement on a permit.

(b) Fail to display a permit or endorsement, as specified in

Sec. 641.4(i).

(c) Falsify or fail to maintain, submit, or provide records or

information required to be maintained, submitted, or provided, as

specified in Sec. 641.5 (b) through (h).

* * * * *

(bb) Receive from a fishing vessel, by purchase, trade, or barter,

reef fish harvested from the EEZ without a dealer permit, as specified

in Sec. 641.4(a)(2).

* * * * *

[FR Doc. 94-3176 Filed 2-7-94; 5:04 pm]

BILLING CODE 3510-22-M