Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 15

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 971009242-7242-01; I.D. 091997B]

RIN 0648-AJ14

Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;

Reef Fish Fishery of the Gulf of Mexico; Amendment 15

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 15 to

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

Mexico (FMP). This proposed rule would replace the current commercial

red snapper endorsement and trip limit system with a system comprised

of two classes of transferrable red snapper licenses and trip limits;

starting in 1998, split the red snapper commercial fishing season into

two time periods, the first commencing February 1 with two-thirds of

the annual quota available and the second commencing on September 1

with the remainder of the annual quota available; open the red snapper

commercial fishery at noon on the first of each month and close it at

noon on the 15th of each month during the commercial season; prohibit

the possession of reef fish in excess of the bag limit on a vessel that

has on board, or is tending, a trap other than a fish, stone crab, or

spiny lobster trap; increase the minimum size limit for vermilion

snapper; close the commercial fishery for greater amberjack each year

during March through May; remove sea basses, grunts, and porgies from

the FMP; and remove certain species from the aggregate bag limit for

reef fish. In addition, NMFS proposes to exclude certain species from

the prohibition on their harvest using powerheads in the stressed area.

The intended effects of this rule are to conserve and manage the reef

fish resources of the Gulf of Mexico.

DATES: Written comments must be received on or before December 8, 1997.

ADDRESSES: Comments on the proposed rule or on the initial regulatory

flexibility analysis (IRFA) must be sent to Robert Sadler, Southeast

Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg,

FL 33702.

Comments regarding the collection-of-information requirements

contained in this rule should be sent to Edward E. Burgess, Southeast

Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg,

FL 33702, and to the Office of Information and Regulatory Affairs,

Office of Management and Budget (OMB), Washington, DC 20503 (Attention:

NOAA Desk Officer).

Requests for copies of Amendment 15, which includes an

environmental assessment, a regulatory impact review (RIR), and an

IRFA, and for copies of a minority report submitted by two members of

the Council, 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, 813-570-5305.

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico

is managed under the FMP. The FMP was prepared by the Gulf of Mexico

Fishery Management Council (Council) and is implemented under the

authority of the Magnuson-Stevens Fishery Conservation and Management

Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

Red Snapper Licenses and Trip Limits

The current commercial red snapper endorsement and trip limit

system would be replaced with a ``two-tier'' license system consisting

of Class 1 licenses, holders of which would be restricted to a red

snapper trip limit of 2,000 lb (907 kg), and Class 2 licenses, holders

of which would be restricted to a red snapper trip limit of 200 lb (91

kg). A Class 1 license would be issued for the vessel specified by the

holder of a red snapper endorsement on March 1, 1997, and to a

historical captain. The determination of status as a historical captain

would be based on information collected under Amendment 9 to the FMP.

The definition of historical captain in this proposed rule is unchanged

from that published in the final rule to implement Amendment 9 (59 FR

39301, August 2, 1994).

A Class 2 license would be issued for a vessel specified by an

owner or operator whose earned income qualified for a Gulf reef fish

permit that was valid on March 1, 1997, and whose vessel had recorded a

red snapper landing during the period January 1, 1990, through February

28, 1997. Eligibility for a Class 2 license would be based on

information collected under Amendment 9 on red snapper landings in the

1990-1992 period. Red snapper landings for the

[[Page 55206]]

period January 1, 1993, through February 28, 1997, would be based

solely on fishing vessel logbooks received by the Science and Research

Director, Southeast Fisheries Science Center, NMFS, not later than

March 31, 1997. To establish eligibility for an initial Class 2

license, a vessel's record of red snapper landings may be transferred

to the current owner of a reef fish permitted vessel. The specific

circumstances for such transfers are designed to protect the reasonable

and legitimate rights of owners.

The Regional Administrator, Southeast Region, NMFS (Regional

Administrator), would notify each owner of a vessel that had a valid

Gulf reef fish permit on March 1, 1997, each operator whose earned

income qualified for a valid permit on that date, and each potential

historical captain of his or her eligibility for a Class 1 or Class 2

red snapper license. Initial determinations of eligibility would be

based on NMFS' records of red snapper endorsements, red snapper

landings during the period from January 1, 1990, through February 28,

1997, and applications for historical captain status under Amendment 9

to the FMP. An owner, operator, or potential historical captain who

concurs with NMFS' initial determination of eligibility would not need

to take further action; if he or she is determined to be eligible, an

appropriate license would be issued not later than January 28, 1998.

A person initially determined by the Regional Administrator to be

ineligible for historical captain status or a Class 2 red snapper

license may appeal that decision to either the Regional Administrator

or an ad hoc appeals committee, consisting of the principal state

officials who are members of the Council, or their designees. The

Regional Administrator and the appeals committee would be empowered

only to deliberate whether the eligibility criteria were applied

correctly in the appellant's case. In making that determination, the

Regional Administrator or the appeals committee members would consider

only disputed calculations and determinations based on the

documentation provided, including transfers of landings records.

Neither the appeals committee nor the Regional Administrator would be

empowered to consider whether a person should have been eligible for

historical captain status or a Class 2 license because of hardship or

other factors.

Amendment 15 would allow transfer of red snapper licenses to

permitted reef fish vessels without restriction. This would encourage

flexibility in participation in the fishery.

Changes to Timing of Red Snapper Commercial Harvest

Amendment 15 and the proposed rule would split the red snapper

commercial fishing season into two time periods starting in 1998, the

first commencing February 1 with two-thirds of the annual quota

available, and the second commencing on September 1 with the remainder

of the annual quota available. This measure is intended to enhance

planning of fishing activities by ensuring sufficient advance

notification of each year's opening dates. A split commercial harvest

period has been implemented in recent years by regulatory amendment.

Amendment 15 and the proposed rule would open the red snapper

commercial fishery at noon on the first of each month and close it at

noon on the 15th of each month, during the commercial red snapper

season. The Council proposed, and NMFS approved, a regulatory amendment

that included a similar measure starting September 2, 1997, for the

remainder of the 1997 commercial season (62 FR 46677, September 4,

1997). Allowing commercial harvest only during the first 15 days of

each month would help extend the length of the fishing season. This

extension of the fishing season may reduce ex-vessel prices. Any

reduction in revenues would be offset, to some degree, by reduced costs

for vessel/gear maintenance and repair (due to preventive maintenance

during closed periods) and associated increases in efficiency of

fishing operations. However, the 15-day harvest period followed by a

15-day closure could result in a series of mini-derbies as fishermen

compete to get their share of the commercial quota.

Monitoring and enforcement costs would increase as a function of

the number of 15-day periods the fishery is open. However, closing the

commercial red snapper fishery for the rest of the month after the 15-

day harvest period should allow fishermen time to perform preventive

maintenance and minor repairs before the fishery opens the following

month. This should improve safety and avoid the higher repair costs

that can occur when normal, preventive maintenance is postponed.

Restriction on Possession of Reef Fish Harvested in Traps Other

Than Fish Traps

Current regulations do not limit the amount of reef fish that may

be harvested in traps other than fish traps, provided the vessel has a

reef fish permit. This creates a loophole for directed harvest of reef

fish by other trap gear, including blue crab traps. Anecdotal

information indicates that some persons are using blue crab traps to

target reef fish in the EEZ off the Big Bend area of Florida. It is

believed that these persons do not possess fish trap endorsements and,

in some cases, commercial reef fish vessel permits.

To address this loophole, Amendment 15 and the proposed rule would

restrict the possession of reef fish on a vessel that has on board, or

is tending, a trap other than a stone crab, spiny lobster, or permitted

reef fish trap, to the bag limits. The measure should enhance

enforcement by discouraging directed harvest of reef fish by fishermen

allegedly fishing blue crab traps. Blue crabs are seldom found in the

EEZ off Florida, and rarely in commercial quantities.

Increase in the Minimum Size Limit for Vermilion Snapper

Amendment 15 and the proposed rule would extend indefinitely the

10-inch (25.4-cm) minimum size limit established by temporary interim

rule (62 FR 47765, September 11, 1997). That temporary interim rule,

which expires on March 11, 1997, increased the minimum size limit from

8 inches (20.3 cm) pending the development, approval, and

implementation of Amendment 15. Because the interim rule has already

appropriately modified the regulatory text for the 10-inch (25.4-cm)

minimum size limit, the proposed rule would not modify the regulatory

text.

The minimum size limit increase from 8 inches (20.3 cm) to 10

inches (25.4 cm) responds to the 1996 vermilion snapper stock

assessment, a 1997 Addendum to that assessment, and Reef Fish Stock

Assessment Panel (SAP) Reports. In those documents, fishery scientists

concluded that the vermilion snapper resource, while not currently

overfished, is undergoing overfishing based on decreasing trends in

overall catch, mean size of individual fish, catch-per-unit-effort, and

estimated numbers of age-1 fish in the population. The intent of the

increase in the minimum size limit is to help mitigate the need for

more restrictive vermilion snapper management measures in the future

(e.g., quotas, additional increases in minimum size, and reductions in

bag limits). A 10-inch minimum size limit reduces fishing mortality,

increases the vermilion snapper spawning potential ratio (SPR), and

thereby improves the status of the resource.

The Council recognized that, if the declining trends continue,

additional regulatory action will be needed to prevent vermilion

snapper from becoming overfished. The Council has

[[Page 55207]]

requested that a stock assessment on vermilion snapper be completed by

the Southeast Fisheries Science Center (SEFSC) in 1998 to allow

development of appropriate management actions. Such actions would be

accomplished under the FMP's framework procedure, or by an additional

FMP amendment.

Seasonal Closure of the Commercial Fishery for Greater Amberjack

NMFS prepared a stock assessment that indicated greater amberjack

is relatively healthy (i.e., the SPR was estimated at 43 percent in

1994, well above the overfished threshold). However, given the

uncertainty associated with the assessment, and based on recent data

showing declines in effort, average size, and landings of greater

amberjack, the Council and the Reef Fish Stock Assessment Panel

determined that the stock assessment was too optimistic. In response to

that information, the Council proposed in Amendment 12, and NMFS

implemented, a reduction in the greater amberjack recreational bag

limit from three fish to one fish (61 FR 65983, December 16, 1996).

The Council believes a seasonal closure of commercial harvest of

greater amberjack is necessary to reduce fishing mortality; ensure that

commercial effort does not negate stock rebuilding resulting from the

recent bag limit reduction; and provide more equitable sharing of the

burden of stock rebuilding between the recreational and commercial

sectors. Accordingly, Amendment 15 and the proposed rule would close

the commercial fishery during March, April, and May of each year. This

measure was found by the SEFSC to be based on the best available

scientific information.

Removal of Sea Basses, Grunts, and Porgies From the FMP

Amendment 15 and the proposed rule would remove sea basses, grunts,

and porgies from the FMP. Removal of these species was proposed by the

Council in response to public testimony that severe, adverse economic

effects resulted from Amendment 12's inclusion of sea basses, grunts,

and porgies in the 20-fish aggregate bag limit for species for which

there is no other bag limit. Public testimony was primarily from

headboat operators who indicated that many of their repeat customers

had typically harvested these species (primarily grunts) in excess of

the 20-fish aggregate bag limit.

Sea basses, grunts, and porgies are harvested predominantly off

Florida. The Council determined that if these species were removed from

the FMP, they could be effectively managed by Florida without

conservation risk. The Council representative from the Florida Marine

Fisheries Commission (FMFC) stated that the FMFC has scheduled public

hearings on potential management measures for these species.

Since Amendment 15 does not include a delegation of management

authority to Florida, although such a delegation can be authorized

under Section 306(a)(3)(B) of the Magnuson-Stevens Act, Florida would

not be empowered to regulate a person aboard a vessel registered in

another state, unless that vessel landed fish in Florida. However,

landings of these species are insignificant outside Florida, and, given

their relatively low value, the economic incentive for out of state

vessels to harvest these species off Florida but land the catch in

another state is minimal. Proposal of this measure also is consistent

with the President's Regulatory Reinvention Initiative of March 4,

1995, that directs Federal agencies, among several things, to consider

eliminating Federal regulations where the states can assume the

necessary regulatory function.

Removal of Species From the Aggregate Bag Limit for Reef Fish

The regulations implementing Amendment 12 to the FMP established a

20-fish aggregate bag limit for species of reef fish not otherwise

subject to a bag limit. In Amendment 12, the Council intended that the

aggregate bag limit apply only to species in the ``management unit'' of

the FMP. However, 11 species that are in the FMP, but are not in the

``management unit,'' were inadvertently included in the aggregate bag

limit.

The Council concluded that the unintended inclusion of these 11

species in the aggregate bag limit resulted in an unnecessary burden on

recreational fishermen, who use some of them (primarily pinfish and

sand perch) as bait. Accordingly, Amendment 15 and the proposed rule

would exclude these species from the aggregate bag limit. Seven of the

11 species are sea basses, grunts, and porgies. If, as discussed above,

sea basses, grunts, and porgies are removed from the FMP, these seven

species would be automatically excluded from the aggregate bag limit.

The remaining four species--sand perch, dwarf sand perch, hogfish, and

queen triggerfish--would be excluded from the aggregate bag limit by

this action.

Availability of and Comments on Amendment 15

Additional background and rationale for the measures discussed

above are contained in Amendment 15, the availability of which was

announced in the Federal Register on September 26, 1997 (62 FR 50553).

Written comments on Amendment 15 are solicited and must be received by

November 25, 1997. Comments that are received by November 25, 1997,

whether specifically directed to the amendment or the proposed rule,

will be considered in the approval/disapproval decision on Amendment

15. Comments received after that date will not be considered in the

approval/disapproval decision. All comments received on Amendment 15 or

on this proposed rule during their respective comment periods will be

addressed in the preamble to the final rule.

Change Proposed by NMFS

NMFS proposes to exempt four species from the prohibition on their

being taken by use of a powerhead in the stressed area, the near-shore

portion of the Gulf of Mexico EEZ where the majority of fishing for

reef fish occurs. Appendix B, Table 2 of 50 CFR part 622 sets forth the

coordinates of the stressed area. As discussed above, there are 11

species in the FMP that are not in the management unit. If Amendment

15's proposal to remove sea basses, grunts, and porgies from the FMP is

approved, only sand perch, dwarf sand perch, hogfish, and queen

triggerfish would remain in the FMP but not in the management unit.

Commencing with the original regulations implementing the FMP (49

FR 39548, October 9, 1984), the use of a powerhead in the stressed area

to take reef fish species in the FMP management unit has been

prohibited. Such prohibition did not apply to species in the FMP but

not in the management unit. No other management measures distinguished

between reef fish species in the management unit and those not in the

management unit. By interim final and final rules (61 FR 34930, July 3,

1996, and 61 FR 47821, September 11, 1996), NMFS consolidated 11 CFR

parts covering most of the fisheries conducted in the Southeast Region,

NMFS, into 50 CFR part 622. In the process of that consolidation, the

prohibition on the taking of reef fish species in the stressed area

with a powerhead was expanded erroneously to include species in the FMP

but not in the management unit. Accordingly, to conform to the intent

of the Council regarding species for which

[[Page 55208]]

a powerhead may not be used in the stressed area, NMFS proposes to

exempt sand perch, dwarf sand perch, hogfish, and queen triggerfish

from that prohibition. However, if Amendment 15's proposed removal from

the FMP of sea basses, grunts, and porgies is not approved, NMFS would

remove all 11 species currently in the FMP but not in the management

unit from the powerhead prohibition.

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 15.

This proposed rule has been determined to be not significant for

purposes of E.O. 12866.

The Council prepared an IRFA that describes the impact this

proposed rule, if adopted, would have on small entities. Based on the

IRFA, NMFS has concluded that Amendment 15, if approved and implemented

through final regulations, would have significant economic impacts on a

substantial number of small entities. The IRFA is summarized as

follows.

The Council intends that the proposed management measures will:

Increase the stability of the commercial red snapper fishery in terms

of fishing patterns and markets, while also reducing harvesting

capacity; promote flexibility for and safety of commercial red snapper

fishermen in their fishing operations; provide for cost-effective and

enforceable management of the reef fish fishery by removing certain

species from the FMP and restricting use of certain non-fish traps to

catch reef fish; reduce fishing mortality of vermilion snapper, which

is in danger of becoming overfished, and greater amberjack, which

appears to be declining in abundance; and limit the application of the

20-fish aggregate bag limit to species listed in the FMP management

unit, thereby relieving recreational fishermen of an unnecessary

burden. The Magnuson-Stevens Act provides the legal basis for the rule.

Amendment 15 would affect all of the 1,424 commercial reef fish

harvesting firms and 930 for-hire vessels (838 charter vessels and 92

headboats) operating in the Gulf of Mexico. These commercial and

recreational entities are considered small business entities for the

purposes of the Regulatory Flexibility Act, because their annual gross

revenues are less than $3 million and $5 million, respectively.

Therefore, a substantial number of small entities are expected to be

affected for purposes of the Regulatory Flexibility Act.

The commercial red snapper license and trip limit system is

expected to include practically all current participants in the

commercial red snapper fishery. Based on historical landings, the

potential change in the distribution of revenues could be higher than 5

percent relative to the 1996 share for an unknown number of these

vessels. The provisions of Amendment 15 regarding commercial red

snapper fishing seasons have potential impacts on revenues. These

impacts have been determined to reduce ex-vessel revenues by an unknown

amount.

The potential reduction in revenues due to the non-fish trap

harvest provision is unknown. The proposed increase in minimum size

limit for vermilion snapper would reduce commercial ex-vessel revenues

by less than 5 percent, since landings reductions have been estimated

to be only about 1.6 percent. On the other hand, the minimum size limit

increase would reduce recreational landings by about 23 percent,

primarily in the for-hire sector. The proposed removal of species from

the FMP and 20-fish aggregate bag limit are not expected to reduce

revenues.

Revenue reduction from the proposed spawning season closure for

greater amberjack could be as high as 22 percent. While amberjack

revenues account for only 4.7 percent of commercial reef fish revenues,

a revenue reduction of 22 percent for those fishermen who target

amberjack would be significant.

The total public burden to comply with the provisions of Amendment

15 has been estimated at $35,000 annually--an insignificant portion of

the total industry costs. However, entry costs by new red snapper

fishery participants could account for more than 5 percent of total

operating costs. As a result, annual compliance costs (e.g., annualized

capital, operating, reporting) could increase total costs of production

for some small entities by more than 5 percent.

The IRFA also discusses information available regarding the ability

of small business fishing firms to finance items such as a switch to

new gear. Available information, however, is not sufficient to estimate

whether capital costs of compliance represent a significant portion of

capital available to small entities.

It is unknown whether this proposed rule is likely to result in 2

percent of the small entities affected being forced to cease business

operations. The adoption of a license limitation system would preclude

some vessels from re-entering the commercial red snapper fishery

without leasing or buying licenses, but those vessels could still

harvest other reef fish if they possess valid commercial reef fish

permits. The vermilion snapper minimum size limit and spawning season

closure for greater amberjack would reduce revenues of some vessels,

but the affected entities are not expected to cease operation.

No duplicative, overlapping, or conflicting Federal rules have been

identified. The reporting, recordkeeping, and other compliance

requirements of the proposed rule are not materially different from the

current practice, with the possible exception of license renewal. No

additional professional skills are required to comply with the proposed

rule.

The Council considered several types of alternatives designed to

meet the FMP objectives. With respect to the license limitation

program, the status quo (i.e., continuation of the current endorsement

system) is not considered a viable alternative since it provides little

opportunity for new entities to enter the fishery. Some unknown amount

of revenue could be forgone by adopting the proposed split monthly

harvest period alternative. Other specific alternatives were

considered, but are generally found to be more costly to the fishery

participants.

Regarding vermilion snapper minimum size limits, under the status

quo (i.e., an 8-inch (20.3-cm) size limit after expiration of the

interim rule) the status of the stocks would deteriorate, which could

have potentially significant adverse short-term impacts on the stock

and the industry over the long-run. The other rejected vermilion

snapper management alternative was a 12-inch (30.5-cm) minimum size

limit. This rejected alternative could effect an immediate and

substantial revenue reduction on both the commercial vessels and for-

hire vessels by potentially causing a loss of as much as 25 percent and

69 percent in landings, respectively.

Regarding the spawning season closure for greater amberjack, both

rejected alternatives would have less adverse short-term impacts on

fishing participants. However, the proposed spawning season closure

responds to landings information indicating a declining status of the

stock; therefore, the proposed spawning season closure could prevent

potential long-term negative impacts associated with the two rejected

alternatives.

[[Page 55209]]

The alternatives proposed in the remainder of Amendment 15,

compared to the corresponding rejected alternatives, were generally

shown to better address problems in the fishery. 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, one-time collection-of-information

requirements subject to the PRA--namely, the submission of copies of

agreements whereby a vessel's record of landings was not transferred

when the vessel was sold and the submission of appeals of the Regional

Administrator's initial determination of eligibility for historical

captain status or a Class 2 red snapper license. These collection-of-

information requirements have been submitted to OMB for approval. The

public reporting burdens for these collections of information are

estimated at 15 and 45 minutes 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.

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).

This rule would continue in effect the collection-of-information

requirement associated with the transfer or renewal of commercial red

snapper endorsements, which would be applied to commercial red snapper

licenses under Amendment 15. This collection of information was

previously approved by OMB under OMB control number 0648-0205.

List of Subjects in 50 CFR Part 622

Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping

requirements, Virgin Islands.

Dated: October 17, 1997.

David L. Evans,

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:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

1. The authority citation for part 622 continues to read as

follows:

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

2. In Sec. 622.4, paragraph (a) introductory text, paragraph (a)(2)

heading, and paragraphs (a)(2)(ix), (d), (g), (i) through (l), and (p)

are revised to read as follows:

Sec. 622.4 Permits and fees.

(a) Permits required. To conduct activities in fisheries governed

in this part, valid permits, licenses, and endorsements are required as

follows:

* * * * *

(2) Commercial vessel permits, licenses, and endorsements.

* * * * *

(ix) Gulf red snapper. For a person aboard a vessel for which a

commercial vessel permit for Gulf reef fish has been issued to retain

red snapper under the trip limits specified in Sec. 622.44(e)(1) or

(2), a Class 1 or Class 2 Gulf red snapper license must have been

issued to the vessel and must be on board. See paragraph (p) of this

section regarding initial issue of red snapper licenses.

* * * * *

(d) Fees. A fee is charged for each application for a permit,

license, or endorsement submitted under this section, for each request

for transfer or replacement of such permit, license, or endorsement,

and for each fish trap or sea bass pot identification tag required

under Sec. 622.6(b)(1)(i). The amount of each fee is calculated in

accordance with the procedures of the NOAA Finance Handbook, available

from the RD, 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, request for transfer or replacement, or request for fish

trap/sea bass pot identification tags.

* * * * *

(g) Transfer. A vessel permit, license, or endorsement or dealer

permit issued under this section is not transferable or assignable,

except as provided in paragraph (m) of this section for a commercial

vessel permit for Gulf reef fish, paragraph (n) of this section for a

fish trap endorsement, or paragraph (p) of this section for a red

snapper license. A person who acquires a vessel or dealership who

desires to conduct activities for which a permit, license, or

endorsement is required must apply for such permit, license, or

endorsement in accordance with the provisions of this section. If the

acquired vessel or dealership is currently permitted, the application

must be accompanied by the original permit and a copy of a signed bill

of sale or equivalent acquisition papers.

* * * * *

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

this section must be carried on board the vessel. A dealer permit

issued under this section, or a copy thereof, must be available on the

dealer's premises. 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 Gulf EEZ. The operator of a vessel must

present the permit, license, or endorsement for inspection upon the

request of an authorized officer. A dealer or a vehicle operator must

present the permit or a copy for inspection upon the request of an

authorized officer.

(j) Sanctions and denials. A permit, license, or endorsement issued

pursuant to this section may be revoked, suspended, or modified, and a

permit, license, or endorsement application may be denied, in

accordance with the procedures governing enforcement-related permit

sanctions and denials found at 15 CFR part 904, subpart D.

(k) Alteration. A permit, license, or endorsement that is altered,

erased, or mutilated is invalid.

(l) Replacement. A replacement permit, license, or endorsement may

be issued. An application for a replacement permit, license, or

endorsement is not considered a new application.

* * * * *

(p) Gulf red snapper licenses--(1) Class 1 licenses. To be eligible

for the 2,000-lb (907-kg) trip limit for Gulf red snapper specified in

Sec. 622.44(e)(1), a vessel must have been issued both a valid

commercial vessel permit for Gulf reef fish and a valid Class 1 Gulf

red snapper license, and such permit and license must be on board.

(2) Class 2 licenses. To be eligible for the 200-lb (91-kg) trip

limit for Gulf red snapper specified in Sec. 622.44(e)(2), a vessel

must have been issued both a

[[Page 55210]]

valid commercial vessel permit for Gulf reef fish and a valid Class 2

Gulf red snapper license, and such permit and license must be on board.

(3) Operator restriction. An initial Gulf red snapper license that

is issued for a vessel based on the qualification of an operator or

historical captain is valid only when that operator or historical

captain is the operator of the vessel. When applicable, this operator

restriction is shown on the license.

(4) Transfer of Gulf red snapper licenses. A red snapper license

may be transferred to a vessel owner independently of a commercial

vessel permit for Gulf reef fish by completing the transfer information

on the reverse of the license and returning it to the RD.

(5) Initial issue of Gulf red snapper licenses--(i) Class 1

licenses. (A) An initial Class 1 license is issued for the vessel

specified by the holder of a valid red snapper endorsement on March 1,

1997, and to a historical captain. In the event of death or disability

of such holder between March 1, 1997, and the date Class 1 licenses are

issued, the Class 1 license is issued for the vessel specified by the

person to whom the red snapper endorsement was transferred.

(B) Status as a historical captain is based on information

collected under Amendment 9 to the Fishery Management Plan for the Reef

Fish Resources of the Gulf of Mexico (FMP). A historical captain is an

operator who--

(1) From November 6, 1989, through 1993, fished solely under verbal

or written share agreements with an owner, and such agreements provided

for the operator to be responsible for hiring the crew, who was paid

from the share under his or her control;

(2) 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;

(3) 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

(4) Landed red snapper prior to November 7, 1989.

(ii) Class 2 licenses. (A) An initial Class 2 license is issued for

the vessel specified by an owner or operator whose income qualified for

a commercial vessel permit for reef fish that was valid on March 1,

1997, and such owner or operator was the person whose earned income

qualified for a commercial vessel permit for reef fish that had a

landing of red snapper during the period from January 1, 1990, through

February 28, 1997.

(B) For the purpose of paragraph (p)(5)(ii)(A) of this section,

landings of red snapper are as recorded in the information collected

under Amendment 9 to the FMP for the period 1990 through 1992 and in

fishing vessel logbooks, as required under Sec. 622.5(a)(1)(ii),

received by the SRD not later than March 31, 1997, for the period from

January 1, 1993, through February 28, 1997.

(C) A vessel's red snapper landings record during the period from

January 1, 1990, through February 28, 1997, is retained by the owner at

the time of the landings if he or she transferred the permit to another

vessel owned by him or her. When a vessel has had a change of ownership

and concurrent transfer of its permit, the vessel's red snapper

landings record is credited to the owner of that vessel on March 1,

1997, unless there is a legally binding agreement under which a

previous owner retained the landings record. An owner who claims such

retention of a landings record must submit a copy of the agreement to

the RD postmarked or hand delivered not later than January 6, 1998.

(6) Implementation procedures--(i) Initial notification. The RD

will notify each owner of a vessel that had a valid permit for Gulf

reef fish on March 1, 1997, each operator whose earned income qualified

for a valid permit on that date, and each potential historical captain

of his or her eligibility for a Class 1 or Class 2 red snapper license.

Initial determinations of eligibility will be based on NMFS' records of

red snapper endorsements, red snapper landings during the period from

January 1, 1990, through February 28, 1997, and applications for

historical captain status under Amendment 9 to the FMP. An owner,

operator, or potential historical captain who concurs with NMFS'

initial determination of eligibility need take no further action--if

determined to be eligible, an appropriate license will be issued not

later than January 23, 1998.

(ii) Appeals. (A) An appeal of the RD's initial decision regarding

eligibility for historical captain status or for a Class 2 red snapper

license may be submitted for reconsideration solely by the RD or to an

ad hoc appeals committee consisting of the principal state officials

who are members of the GMFMC, or their designees.

(B) The RD and the appeals committee are empowered only to

deliberate whether the eligibility criteria in paragraph (p)(5) of this

section were applied correctly in the appellant's case. In making that

determination, the RD or the appeals committee members will consider

only disputed calculations and determinations, including disputed

transfers of landings records, based on the documentation provided.

Neither the appeals committee nor the RD is empowered to consider

whether a person should have been eligible for historical captain

status or a Class 2 license because of hardship or other factors.

(C) A written request for consideration of an appeal must be

submitted to the RD postmarked or hand delivered not later than January

13, 1998, and must provide written documentation supporting the basis

for the appeal. An appellant may also make a personal appearance before

the appeals committee. If consideration by the appeals committee is

requested, such request constitutes the appellant's written

authorization under section 402(b)(1)(F) of the Magnuson-Stevens

Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) for

the RD to make available to the appeals committee members such

confidential catch and other records as are pertinent to the matter

being appealed.

(D) The appeals committee will meet only once to consider appeals

submitted within the time period specified in paragraph (p)(6)(iii)(C)

of this section. Members of the appeals committee will provide their

individual recommendations for each appeal referred to the committee to

the RD. Members of the appeals committee may comment upon whether the

eligibility criteria were correctly applied in each case, based solely

on the available record, including documentation submitted by the

appellant. The RD will decide the appeal based on the initial

eligibility criteria in paragraph (p)(5) of this section and the

available record, including documentation submitted by the appellant

and, if the appeal is considered by the appeals committee, the

recommendations and comments from members of the appeals committee. The

RD will notify the appellant of the decision and the reason therefore,

in writing, normally within 15 days of receiving the recommendations of

the appeals committee members. The RD's decision will constitute the

final administrative action by NMFS on an appeal.

3. In Sec. 622.7, paragraphs (a) through (c) are revised to read as

follows:

Sec. 622.7 Prohibitions.

* * * * *

(a) Engage in an activity for which a valid Federal permit,

license, or endorsement is required under Sec. 622.4 or Sec. 622.17

without such permit, license, or endorsement.

[[Page 55211]]

(b) Falsify information on an application for a permit, license, or

endorsement or submitted in support of such application, as specified

in Sec. 622.4(b), (g), or (p) or Sec. 622.17.

(c) Fail to display a permit, license, or endorsement, as specified

in Sec. 622.4(i) or Sec. 622.17(g).

* * * * *

4. In Sec. 622.34, a sentence is added at the end of paragraph

(g)(1) and paragraph (l) is revised to read as follows:

Sec. 622.34 Gulf EEZ seasonal and/or area closures.

* * * * *

(g) * * *

(1) * * * The provisions of this paragraph (g)(1) do not apply to

the following species: dwarf sand perch, hogfish, queen triggerfish,

and sand perch.

* * * * *

(l) Closures of the commercial fishery for red snapper. The

commercial fishery for red snapper in or from the Gulf EEZ is closed

from January 1 to noon on February 1 and thereafter from noon on the

15th of each month to noon on the first of each succeeding month. All

times are local times. During these closed periods, the possession of

red snapper in or from the Gulf EEZ and in the Gulf on board a vessel

for which a commercial permit for Gulf reef fish has been issued, as

required under Sec. 622.4(a)(2)(v), without regard to where such red

snapper were harvested, is limited to the bag and possession limits, as

specified in Sec. 622.39(b)(1)(iii) and (b)(2), respectively, and such

red snapper are subject to the prohibition on sale or purchase of red

snapper possessed under the bag limit, as specified in

Sec. 622.45(c)(1).

5. In Sec. 622.36, the introductory text and paragraphs (a), (b),

and (c) are redesignated as paragraph (b) introductory text and

paragraphs (b)(1), (b)(2), and (b)(3), respectively, and paragraph (a)

is added to read as follows:

Sec. 622.36 Seasonal harvest limitations.

(a) During March, April, and May, each year, the possession of

greater amberjack in or from the Gulf EEZ and in the Gulf on board a

vessel for which a commercial permit for Gulf reef fish has been

issued, as required under Sec. 622.4(a)(2)(v), without regard to where

such greater amberjack were harvested, is limited to the bag and

possession limits, as specified in Sec. 622.39(b)(1)(i) and (b)(2),

respectively, and such greater amberjack are subject to the prohibition

on sale or purchase of greater amberjack possessed under the bag limit,

as specified in Sec. 622.45(c)(1).

* * * * *

6. In Sec. 622.39, paragraph (a)(2) introductory text is

republished, paragraph (a)(2)(iv) is added, and paragraph (b)(1)(v) is

revised to read as follows:

Sec. 622.39 Bag and possession limits.

(a) * * *

(2) Paragraph (a)(1) of this section notwithstanding, bag and

possession limits also apply for Gulf reef fish in or from the EEZ to a

person aboard a vessel that has on board a commercial permit for Gulf

reef fish--

* * * * *

(iv) When the vessel has on board or is tending any trap other than

a fish trap authorized under Sec. 622.40(a)(2), a stone crab trap, or a

spiny lobster trap.

(b) * * *

(1) * * *

(v) Gulf reef fish, combined, excluding those specified in

paragraphs (b)(1)(i) through (iv) of this section and excluding dwarf

sand perch, hogfish, queen triggerfish, and sand perch--20.

* * * * *

7. In Sec. 622.42, paragraph (a)(1)(i) is revised to read as

follows:

Sec. 622.42 Quotas.

(a) * * *

(1) * * *

(i) Red snapper--4.65 million lb (2.11 million kg), round weight,

apportioned as follows:

(A) 3.06 million lb (1.39 million kg) available at noon on February

1 each year, subject to the closure provisions of Secs. 622.34(l) and

622.43(a)(1)(i).

(B) The remainder available at noon on September 1 each year,

subject to the closure provisions of Secs. 622.34(l) and

622.43(a)(1)(i).

* * * * *

8. In Sec. 622.44, paragraph (e) is revised to read as follows:

Sec. 622.44 Commercial trip limits.

* * * * *

(e) Gulf red snapper. (1) The trip limit for red snapper in or from

the Gulf for a vessel that has on board a valid commercial permit for

Gulf reef fish and a valid Class 1 red snapper license is 2,000 lb (907

kg), round or eviscerated weight.

(2) The trip limit for red snapper in or from the Gulf for a vessel

that has on board a valid commercial permit for Gulf reef fish and a

valid Class 2 red snapper license is 200 lb (91 kg), round or

eviscerated weight.

(3) The trip limit for red snapper in or from the Gulf for any

other vessel for which a commercial permit for Gulf reef fish has been

issued is zero.

(4) As a condition of a commercial vessel permit for Gulf reef

fish, as required under Sec. 622.4(a)(2)(v), without regard to where

red snapper are harvested or possessed, a vessel that has been issued

such permit--

(i) May not possess red snapper in or from the Gulf in excess of

the appropriate vessel trip limit, as specified in paragraphs (e)(1)

through (3) of this section.

(ii) May not transfer or receive at sea red snapper in or from the

Gulf.

* * * * *

Appendix A to Part 622 [Amended]

9. In Table 3 of appendix A to part 622, the family Haemulidae--

Grunts and the three species and scientific names thereunder are

removed; under the family Serranidae, the species Bank sea bass, Rock

sea bass, and Black sea bass and their scientific names are removed and

the family name ``Serranidae--Sea Basses and Groupers'' is revised to

read ``Serranidae--Groupers''; and the family Sparidae--Porgies and the

six species and scientific names thereunder are removed.

[FR Doc. 97-28166 Filed 10-22-97; 8:45 am]

BILLING CODE 3510-22-F