Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 16A; OMB Control Numbers

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 622

[Docket No. 981229328-9249-02; I.D. 120998C]

RIN 0648-AK31

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

Reef Fish Fishery of the Gulf of Mexico; Amendment 16A; OMB Control

Numbers

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 the approved measures

in Amendment 16A to the Fishery Management Plan for the Reef Fish

Resources of the Gulf of Mexico (FMP). This final rule prohibits

possession of reef fish exhibiting trap rash on board a vessel that is

in the exclusive economic zone (EEZ) of the Gulf of Mexico and that

does not have a valid fish trap endorsement and requires fish trap

[[Page 68933]]

vessel owners or operators to provide trip initiation and trip

termination reports and to comply with a vessel/gear inspection

requirement. The provision of Amendment 16A that would have prohibited

the use of fish traps in the EEZ of the Gulf of Mexico south of

25 deg.03' N. lat. after February 7, 2001, has been disapproved.

Finally, NMFS informs the public of the approval by the Office of

Management and Budget (OMB) of the collection-of-information

requirements contained in this rule, publishes the OMB control number

for these collections, and corrects the list of control numbers

applicable to title 50 of the Code of Federal Regulations. The intended

effects of this rule are to enhance enforceability of fish trap

measures and to conserve and manage the reef fish resources of the Gulf

of Mexico.

DATES: This rule is effective January 10, 2000.

ADDRESSES: Copies of the final regulatory flexibility analysis (FRFA)

may be obtained from the 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 Management and Budget (OMB), Washington, DC 20503 (Attention:

NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Roy Crabtree, 727-570-5305.

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

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

Fishery Management Council (Council) and is implemented under the

authority of the Magnuson-Stevens Fishery Conservation and Management

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

On December 18, 1998, NMFS announced the availability of Amendment

16A and requested comments on the amendment (63 FR 70093). On March 5,

1999, NMFS published a proposed rule to implement the measures in

Amendment 16A and additional measures proposed by NMFS and requested

comments on the rule (64 FR 10613). The background and rationale for

the measures in the amendment and proposed rule, including a detailed

explanation of inspection and reporting requirements, are contained in

the preamble to the proposed rule and are not repeated here. On March

18, 1999, after considering the comments received on the amendment,

NMFS partially approved Amendment 16A. NMFS disapproved the provision

of Amendment 16A prohibiting the use of fish traps in the EEZ of the

Gulf of Mexico south of 25 deg.03' N. lat. after February 7, 2001.

NMFS implemented a 10-year phaseout of the fish trap fishery ending

February 7, 2007, under Amendment 14 (62 FR 13983, March 25, 1997).

Amendment 16A proposed a shorter phaseout period (ending February 7,

2001) for an area in Federal waters south of Cape Sable, FL (25 deg.03'

N. lat.) at the southernmost point of the Florida peninsula. NMFS

disapproved this measure based on national standard 7 of the Magnuson-

Stevens Act because no conservation benefits were shown, the measure

would impose an unnecessary burden on fishermen, and the costs do not

appear to be justified. Amendment 16A and subsequent public comment on

the proposed rule demonstrate no overriding conservation benefits from

the accelerated phaseout to justify overturning the Council's previous

commitment to a 10-year phaseout. NMFS previously approved the

elimination of fish traps in the Gulf of Mexico after February 7, 2007,

as proposed in Reef Fish Amendment 14.

In the proposed rule, NMFS proposed a change from the one-time

inspection proposed by the Council in Amendment 16A to an annual

inspection. NMFS stated in the proposed rule that the need to monitor

compliance in the fishery justified inspections on an annual basis.

After further review, NMFS has concluded that annual inspections would

be overly burdensome on participants in the fishery. Consequently, NMFS

revised this final rule to require only a one-time inspection that is

intended to accomplish the Council's objective of ensuring that all

fish trap gear used in the Gulf of Mexico is in compliance with fish

trap regulations.

Comments and Responses

NMFS received 6 comments on Amendment 16A and on the proposed rule,

including a minority report from two members of the Council.

Comment 1: A commenter objected to the use of trap rash as a

diagnostic tool that indicates that a fish was caught in a wire fish

trap. This commenter stated that fish legally caught with stone crab

pots always have trap rash.

Response: Trap rash is extreme physical damage to fish involving

loss of body parts (e.g., fins, spines, teeth) and cuts, especially to

the head, snout or mouth, resulting from prolonged retention in wire

traps. Physical conditions resulting from brief retention in legal

stone crab traps or coolers are not similar and cannot be confused with

trap rash. Trap rash only occurs during prolonged retention in wire

traps, and NMFS' enforcement experience indicates that prolonged

retention is only associated with illegal traps. Legal fish traps are

required to be tended on each fishing trip, and such practice does not

allow sufficient time for trap rash to develop. Fish retained briefly

in a stone crab trap or cooler may exhibit minor physical irritation

resulting from having rubbed against the trap or cooler but do not have

the serious physical damage referred to as trap rash.

Comment 2: Four commenters supported the accelerated phaseout of

fish traps south of Cape Sable and objected to the NMFS disapproval of

this measure in Amendment 16A. One commenter argued that the

accelerated phaseout measure is consistent with national standard 7 of

the Magnuson-Stevens Act and would result in significant conservation

benefits and improved enforcement.

Response: NMFS believes the proposed accelerated phaseout of fish

traps is inconsistent with national standard 7 of the Magnuson-Stevens

Act because no conservation benefits were shown, the measure would

impose an unnecessary burden on fishermen, and the costs do not appear

to be justified. The Council's Regulatory Impact Review suggests that

if the accelerated area phaseout had been approved, substantial

increases in fish trapping costs due to relocation would have forced

some vessels to cease their fishing operations. The Council did not

show that other benefits would have accrued to the fishery that would

have outweighed the negative costs. Furthermore, Amendment 16A does not

substantiate the Council's assumption that continued fish trapping in

the proposed area would contribute to bycatch problems, user group

conflicts, or illegal trap use in adjacent state waters. The document

demonstrates no overriding conservation benefits from the accelerated

phaseout to justify overturning the Council's previous commitment to a

10-year phaseout. NMFS continues to support the elimination of fish

traps in the Gulf of Mexico after February 7, 2007, as approved in Reef

Fish Amendment 14.

Comment 3: Two Council members, in a minority report, opposed the

accelerated phaseout of fish traps south of Cape Sable. The report

states that this measure is a violation of national standards 2, 4, 5,

6, 7, and 8 of the Magnuson-Stevens Act. The report concludes that the

measure is arbitrary

[[Page 68934]]

and capricious, and recommends disapproval.

Response: NMFS concurs that this measure was not adequately

justified by the Council for the reasons stated above. NMFS disapproved

this measure based on national standard 7 of the Magnuson-Stevens Act.

Changes From the Proposed Rule

In Sec. 622.31(c)(2), the proposed language regarding the

accelerated phaseout of fish traps south of Cape Sable, FL (25.05 deg.

N. lat.) was removed due to the disapproval of that provision.

In Sec. 622.5(a)(1)(ii)(A)(1), the language proposed by NMFS that

would have required an annual vessel/gear inspection was revised to

require only a one-time inspection. This revision was based on NMFS'

subsequent determination that annual inspections would be unduly

burdensome.

Classification

Under NOAA Administrative Order 205-11, 7.01, dated December 17,

1990, the Under Secretary for Oceans and Atmosphere, Department of

Commerce, has delegated authority to sign material for publication in

the Federal Register to the Assistant Administrator for Fisheries, NOAA

(AA).

The Regional Administrator, Southeast Region, NMFS, with the

concurrence of the AA, determined that the approved measures of

Amendment 16A are necessary for the conservation and management of the

reef fish fishery of the Gulf of Mexico and that, with the exception of

the measure that was not approved, Amendment 16A is consistent with the

Magnuson-Stevens Act and other applicable law.

This final rule has been determined to be not significant for

purposes of E.O. 12866.

NMFS prepared a FRFA for the final rule implementing Amendment 16A

to the FMP. The FRFA was based on the IRFA, public comments, and

subsequent analysis by NMFS. A summary of the FRFA follows.

This rule is needed because reports that fish trap fishing

violations are continuing. The objective is to provide for improved

monitoring and reporting of trap fishing operations as a means to

increase the effectiveness of law enforcement activities. Amendment 16A

proposed to prohibit the use of fish traps in the EEZ of the Gulf of

Mexico south of 25 deg.03' N. lat. after February 7, 2001; to prohibit

possession of reef fish exhibiting trap rash (i.e., physical injuries

characteristic of confinement in wire fish traps) on board a vessel

that does not have a valid fish trap endorsement; and to require that

fish trap vessel owners or operators provide trip initiation and trip

termination reports and to comply with a vessel/gear inspection

requirement. NMFS received several comments during the public comment

period that addressed the economic impacts of the proposed accelerated

phaseout of fish trapping in the area south of 25 deg.03' N. lat. These

comments indicated that there would be increased costs associated with

longer transits to alternate fishing grounds and that the proposal

would have increased safety risks. There were also comments in favor of

the Council's proposal for an accelerated phase out, but these comments

did not address issues about economic impacts. In general, NMFS agrees

with the fishermen's economic concerns but disagrees with general

comments supporting the accelerated phaseout. NMFS found that the

accelerated phaseout was not supported by information in Amendment 16A,

other available information, or by the public comments. Hence, the

accelerated phaseout was disapproved, and that provision was removed

from the final rule. There were no substantive public comments

regarding the economic impacts of other provisions of the rule.

Approximately 86 vessels currently have fish trap endorsements. All

of these are small entities, and all will be affected to about the same

degree by the approved provisions of the rule. Existing data indicate

that one class of fish trap vessels reported average annual gross sales

of $93,426, average annual income net of variable costs and crew shares

of $19,409, and average boat resale value of $55,846. Another class of

vessels reported figures of $86,039 average gross sales, average annual

net income of $21,025, and $48,118 boat resale value.

This rule contains two provisions that will require additional

reporting and compliance efforts but no additional recordkeeping. All

permitted trap fishermen will be required to schedule an appointment

with NMFS law enforcement and have their vessels and trap gear

inspected by a law enforcement officer. This will take an estimated 2

to 4 hours to comply. In addition, fishermen will be required to

provide trip initiation and termination reports via a toll free call.

Each call will take 5 minutes, or a total of 10 minutes per trip.

Because the average vessel takes 29 trips per year, the average annual

time burden per vessel is estimated to be 290 minutes or about 5 hours.

The Magnuson-Stevens Act provides the legal basis for all the

approved provisions of the rule. Under existing regulations, all fish

traps are to be phased out over a 10-year period. Three alternatives

for a different phaseout period were considered in Amendment 16A:

status quo, a 2-year phaseout of all fish trapping, and a 2-year

phaseout for the area south of 25 deg.03' N. lat. NMFS rejected the

Council's alternative for the early phaseout of the use of fish traps

south of 25 deg.03' N. lat. because the associated negative economic

impacts were not adequately justified or offset by benefits. Five

alternatives were considered for a provision regarding the possession

of reef fish exhibiting trap rash. The preferred alternative prohibits

possession of reef fish that exhibit trap rash on board any vessel not

possessing a valid fish trap endorsement. If this situation is observed

by a law enforcement officer, it is considered to be prima facie

evidence that the fish were taken illegally. Three rejected

alternatives would have limited the possession of reef fish to a trip

limit to be determined. These three rejected alternatives had an

unknown level of economic impacts because there was no final

determination of the actual trip limits. Another alternative would have

provided that a spiny lobster or stone crab vessel that also had a reef

fish permit could keep the same quantity of reef fish as any other

permitted reef fish vessel. That alternative was rejected because it

would not provide law enforcement with an adequate means to address the

problem of illegal traps, even if the condition of trap rash was

evident. Finally, the status quo was considered and rejected on the

basis that a solution was needed to the use of trap rash as an

indicator of the use of illegal traps. Two alternatives to the proposed

provisions for inspection of the vessels/traps and to the requirement

for trip initiation and termination reports were considered and

rejected. One alternative was to close the fishery to all fish trapping

for one month to allow time for the inspections of vessels and gear.

This was rejected because a fixed one-month closure was considered

unnecessarily burdensome compared to the preferred alternative that

provides flexibility for scheduling inspections at times most

convenient and least burdensome to the fishermen. The status quo was

considered and rejected because it did not address the trap issue.

Copies of the FRFA are available (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 PRA unless that

[[Page 68935]]

collection of information displays a currently valid OMB control

number.

This rule contains two new collection-of-information requirements

subject to the Paperwork Reduction Act (PRA)--namely, a requirement for

fish trap vessel operators to provide, via toll-free telephone calls,

trip initiation and trip termination reports and a requirement for fish

trap owners/operators to schedule, via telephone call, an appointment

with NMFS enforcement to allow inspection of fish trap gear, fish trap

permits and tags, and vessels. These requirements have been approved by

OMB under OMB control number 0648-0392. The public reporting burdens

for the telephone calls for the trip initiation and termination

reports, and for scheduling the fish trap inspection are estimated at 5

minutes each per response, including the time for reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collections of information. Send comments regarding these burden

estimates or any other aspects of the collections of information,

including suggestions for reducing the burden, to NMFS and OMB (see

ADDRESSES).

List of Subjects

15 CFR Part 902

Reporting and recordkeeping requirements.

50 CFR Part 622

Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping

requirements, Virgin Islands.

Dated: December 2, 1999.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR

part 622 are amended as follows:

15 CFR CHAPTER IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE

PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

1. The authority citation for part 902 continues to read as

follows:

Authority: 44 U.S.C. 3501 et seq.

2. In Sec. 902.1, the table in paragraph (b), under 50 CFR, is

amended by adding the following entry in numerical order to read as

follows:

Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork

Reduction Act.

* * * * *

(b) * * *

------------------------------------------------------------------------

Current OMB control number

CFR part or section where the information (all numbers begin with 0648-

collection requirement is located )

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* * * * *

50 CFR

* * * * *

622.5 -0392

* * * * *

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50 CFR CHAPTER VI

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

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

follows:

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

4. In Sec. 622.5, paragraph (a)(1)(ii)(B) is added and reserved,

and paragraph (a)(1)(ii)(A) is added to read as follows:

Sec. 622.5 Recordkeeping and reporting.

* * * * *

(a) * * *

(1) * * *

(ii) * * *

(A) Fish traps. In addition to the other reporting requirements in

paragraph (a)(1)(ii) of this section, the owner or operator of a vessel

for which a fish trap endorsement has been issued, as required under

Sec. 622.4(a)(2)(i), must comply with the following requirements.

(1) Inspection. The RA will establish a 1-month period for

mandatory inspection of all fish trap gear, permits, and vessels. The

RA will provide written notification of the inspection period to each

owner of a vessel for which a fish trap endorsement has been issued as

required under Sec. 622.4(a)(2)(i). Each such owner or operator must

contact the Special Agent-in-Charge, NMFS, Office of Enforcement,

Southeast Region, St. Petersburg, FL (SAC) or his designee by telephone

(727-570-5344) to schedule an inspection during the 1-month period.

Requests for inspection must be made between 8:00 a.m. and 4:30 p.m.

Monday through Friday and must be made at least 72 hours in advance of

the desired inspection date. Inspections will be conducted Monday

through Friday between 8:00 a.m. and 4:30 p.m. only. On the inspection

date, the owner or operator must make all fish trap gear with attached

trap tags and buoys and all applicable permits available for inspection

on land. Vessels must also be made available for inspection as directed

by the SAC or his designee. Upon completion of the inspection and a

determination that all fish trap gear, permits, and vessels are in

compliance, an owner or operator may resume fishing with the lawful

gear. However, an owner or operator who fails to comply with the

inspection requirements during the 1-month inspection period or during

any other random inspection may not use or possess a fish trap in the

Gulf EEZ until the required inspection or reinspection, as directed by

the SAC, has been completed and all fish trap gear, permits, and

vessels are determined to be in compliance with all applicable

regulations.

(2) Trip reports. For each fishing trip on which a fish trap will

be used or possessed, an owner or operator of a vessel for which a fish

trap endorsement has been issued, as required under

Sec. 622.4(a)(2)(i), must submit a trip initiation report and a trip

termination report to the SAC or his designee, by telephone, using the

following 24-hour toll-free number--800-305-0697.

(i) Trip initiation report. The trip initiation report must be

submitted before beginning the trip and must include: vessel name;

official number; number of traps to be deployed; sequence of trap tag

numbers; date, time, and point of departure; and intended time and date

of trip termination.

(ii) Trip termination report. The trip termination report must be

submitted immediately upon returning to port and prior to any

offloading of catch or fish traps. The trip termination report must

include: vessel name; official number; name and address of dealer where

catch will be offloaded and sold; the time offloading will begin;

notification of any lost traps; and notification of any traps left

deployed for any reason.

(B) [Reserved]

* * * * *

4. In Sec. 622.7, paragraph (d) is revised to read as follows:

Sec. 622.7 Prohibitions.

* * * * *

(d) Falsify or fail to maintain, submit, or provide information or

fail to comply with inspection requirements or restrictions, as

specified in Sec. 622.5(a) through (f).

* * * * *

5. In Sec. 622.41, paragraph (i) is added to read as follows:

Sec. 622.41 Species specific limitations.

* * * * *

(i) Gulf reef fish exhibiting trap rash. Gulf reef fish in or from

the Gulf EEZ that exhibit trap rash may be possessed on board a vessel

only if that vessel has a valid fish trap endorsement, as required

under Sec. 622.4(a)(2)(i), on board.

[[Page 68936]]

Possession of such fish on board a vessel without a valid fish trap

endorsement is prima facie evidence of illegal trap use and is

prohibited. For the purpose of this paragraph, trap rash is defined as

physical damage to fish that characteristically results from contact

with wire fish traps. Such damage includes, but is not limited to,

broken fin spines, fin rays, or teeth; visually obvious loss of scales;

and cuts or abrasions on the body of the fish, particularly on the

head, snout, or mouth.

[FR Doc. 99-31969 Filed 12-8-99; 8:45 am]

BILLING CODE 3510-22-F