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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 981229328-8328-01; 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

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule, request for comments.

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

SUMMARY: NMFS issues this proposed rule to implement Amendment 16A to

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

Mexico (FMP). This proposed rule would prohibit the use of fish traps

in the exclusive economic zone (EEZ) of the Gulf of Mexico south of

25 deg.03' N. lat. after February 7, 2001; prohibit possession of reef

fish exhibiting trap rash on board a vessel that does not have a valid

fish trap endorsement; and require fish trap vessel owners or operators

to provide trip initiation and trip termination reports and comply with

an annual vessel/gear inspection requirement. In addition, Amendment

16A proposes that NMFS develop a system design, protocol, and

implementation schedule for a fish trap vessel monitoring system (VMS).

The intended effects of this rule are to enhance enforceability of fish

trap measures and conserve and manage the reef fish resources of the

Gulf of Mexico.

DATES: Written comments must be received on or before April 19, 1999.

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 must 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 16A, which includes an

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

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

Council members 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, 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.

Accelerated Area Phaseout of Fish Traps

A 10-year phaseout of the fish trap fishery ending February 7,

2007, was implemented under Amendment 14 (62 FR 13983, March 25, 1997).

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

2001) for an area in Federal waters south of Cape Sable, FL (25.05 deg.

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

measure is based on Council concerns about increased trap fishing

pressure, continuing fish trap violations, and ineffective fish trap

vessel monitoring. Opponents of fish traps report user group conflicts

and problems with excessive trap fishing pressure in an area south of

25.05 deg. N. lat. Law enforcement agencies reported continued

difficulties in detecting and monitoring fish trap use and requested

additional fish trap vessel monitoring, reporting, and inspection

requirements for the entire fish trap fishery.

Testimony to the Council at its March 1998 meeting included

allegations of continuing problems with fish trap gear in the Florida

Keys area since implementation of the 10-year phaseout. Several

commenters in favor of an accelerated fish trap phaseout stated that

the continued use of the gear in the Gulf EEZ of the Florida Keys will

contribute to bycatch problems, user group conflicts, and illegal trap

use in adjacent state waters. Public testimony also indicated that

deployment of fish traps in the Gulf EEZ adjacent to the Florida Keys

during the 10-year period will continue to cause physical habitat

damage to the coral reef community. Following public testimony, the

Council proposed accelerating the phaseout, from 10 years to 4 years

(ending February 7, 2001), in the Florida Keys. Fish trap use would be

prohibited in the designated area after February 7, 2001.

In the area off the Florida Keys, the accelerated phaseout will

negatively impact those fish trap fishermen who had anticipated a 10-

year phaseout period and invested in fish trap gear or endorsements. It

would also negatively impact fish trap fishermen in the Florida Keys by

requiring them to travel to a point north of 25.05 deg. N. lat. to

deploy their traps. However, the Council anticipates that an

accelerated fish trap phaseout may reduce fishing pressure on reef fish

in the area south of 25.05 deg. N. lat.

Proposed Restrictions on the Possession of Reef Fish

The Council is proposing to prohibit the possession of reef fish

exhibiting the condition of trap rash (i.e., physical damage to fish

caused by the fish rubbing or scraping against, running into, butting,

or biting the wire mesh used to construct wire fish traps) on vessels

without valid fish trap endorsements. This trap rash management measure

is based on information that some vessels that land

[[Page 10614]]

reef fish with trap rash do not have valid fish trap endorsements and

continually deploy fish traps at sea in violation of the requirement

that traps be returned to port at the end of each trip. Persons on

these vessels do not possess fish traps on board longer than the time

required to empty the traps before returning them to the water. As a

result, law enforcement officials cannot prosecute these fishermen due

to lack of evidence of illegal trap deployment. In response, the

Council proposed to prohibit the possession of reef fish exhibiting the

condition of trap rash on board any vessel, except for vessels

possessing a valid fish trap endorsement, as this condition is prima

facie evidence of illegal trap use. The Council rejected

recommendations for reef fish trip limits on vessels fishing stone crab

and spiny lobster traps, because the Council concluded that, by putting

the burden on the fishermen to prove that they were legal fish trappers

if they possessed reef fish with trap rash, the trap rash provision

would be more enforceable than reef fish trip limits. NMFS fishery

scientists conducting research at sea have detected the trap rash

condition on reef fish remaining in illegally deployed fish traps. The

severity of the trap rash condition increases with the time a fish

spends in a wire trap. NMFS has reviewed this information and found no

evidence that trap rash could result from a source other than fish trap

use. As a result, illegal fish trap use is indicated by possession of

reef fish with the trap rash condition aboard vessels without a fish

trap endorsement.

Fish Trap Vessel Monitoring System (VMS)

The Council considered an electronic VMS for fish trap vessels as a

means to monitor regulated fish trap vessels and detect unlawful fish

trapping activity. NMFS currently is evaluating a device that uses

cellular telephone technology and, in addition to reporting vessel

location, can be configured to sense various operational aspects of

vessels in a fishery such as engine speed and operation of fishing gear

(e.g., winches).

The VMS costs are estimated in Amendment 16A to be relatively small

(approximately $1,000 for equipment, plus $500 installation cost per

vessel) in comparison to the costs of fish trap operations, including

acquiring a fish trap endorsement. Most fish trappers who commented on

this measure to the Council supported establishing a VMS and accepting

the associated VMS costs, if necessary, to allow themselves to continue

trap fishing through February 7, 2007 (the time period established

under Amendment 14 to the FMP).

The Council was unwilling to proceed with requiring VMS for fish

trap vessels without knowledge of the detailed cost of the system or

confirmation by NMFS that the system is viable. The Council has asked

NMFS to complete its evaluation of VMS system purchase/installation

costs and to test systems on fish trap vessels. Once this evaluation is

complete, NMFS will present the system design, costs, and

implementation schedule to the Council for its approval prior to

implementation. If the Council approves the VMS at that time, NMFS will

take the necessary steps to implement this action, if it is deemed

appropriate.

Additional Fish Trap Vessel Inspection and Reporting Requirements

Amendment 16A proposes a 1-month fish trap/vessel inspection period

and a requirement for fish trappers to report trip initiation and trip

termination times. The inspections will establish a baseline to assure

that all fish trap gear is in compliance with fish trap construction

and tagging requirements and that all participants are familiar with

the Federal regulations governing their fishery.

The proposed rule specifies that each fish trap vessel owner or

operator will contact NMFS by telephone to schedule the inspection

during an assigned 1-month period. 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 at a land-based

site. Vessels must also be made available for inspection. Vessels may

continue to use fish traps during the 1-month period until the

inspection is initiated. An owner or operator may resume fishing upon

completion of the inspection and a determination that all fish trap

gear, permits, and vessels are in compliance. However, an owner or

operator who fails to comply with the inspection requirements may not

use or possess fish traps in the Gulf EEZ until the required inspection

or reinspection has been completed and all fish trap gear, permits, and

vessels are determined to be in compliance. (See Changes Proposed by

NMFS.)

The proposed rule also requires trip initiation and termination

reports submitted by telephone, through the use of a 24-hour toll-free

number for each fishing trip on which a fish trap will be used or

possessed.

Council Minority Report on Amendment 16A

A minority report signed by two Council members opposes Amendment

16A and specifically raises concerns on the accelerated phase out of

fish traps off the Florida Keys. The minority report contends that

Amendment 16A is inconsistent with several Magnuson-Stevens Act

national standards. Copies of the minority report may be obtained from

the Council (see ADDRESSES).

Availability of and Comments on Amendment 16A

Additional background and rationale for the measures discussed

above are contained in Amendment 16A, the availability of which was

announced in the Federal Register on December 18, 1998 (63 FR 70093).

Written comments on Amendment 16A were solicited and must have been

received by February 16, 1999, to be considered in the approval/

disapproval decision on Amendment 16A. Comments received after that

date will not be considered in the approval/disapproval decision. All

comments received on Amendment 16A or on this proposed rule during

their respective comment periods will be addressed in the preamble to

the final rule.

Changes Proposed by NMFS

To improve compliance in the fishery, the Council proposed a 1-

month period for vessel inspections and user group education preceding

implementation of the trip initiation and termination reporting

requirements contained in Amendment 16A. The Council's objective is to

establish a baseline for ensuring that all fish trap gear used in the

Gulf of Mexico is in compliance with fish trap regulations. To achieve

that objective, NMFS is proposing to implement the vessel inspection

and user group education concept. However, NMFS finds that the need to

monitor compliance in the fishery will continue and, therefore,

proposes to continue the inspection and education period on an annual

basis. Because NMFS proposes that the inspections occur annually,

delaying implementation of the new reporting requirement is

impractical. As a result, NMFS also proposes to implement the trip

initiation and trip termination reporting requirement upon

effectiveness of the final rule.

Pursuant to section 311 of the Magnuson-Stevens Act, NMFS-

authorized officers possess the authority to inspect any vessel subject

to the Magnuson-Stevens Act without notice, at any time. However, for

consistency with the Council's proposal in

[[Page 10615]]

Amendment 16A, NMFS is proposing in this rule to provide advance notice

for the proposed annual inspections. Notice of annual inspections

conducted under this measure would be through the use of appointments,

as contemplated in Amendment 16A's initial inspection.

The amendment states that the Regional Administrator, Southeast

Region, NMFS (RA) will publish notification of the 1-month fish trap

inspection period in the Federal Register. NMFS proposes, in lieu of

that requirement, that the RA provide written notification to each

owner of a vessel that has a valid fish trap endorsement. NMFS believes

that direct notification of owners would be more effective.

NMFS solicits public comment on these proposed changes.

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 16A.

This proposed rule has been determined to be not significant for

purposes of E.O. 12866.

The Council prepared an IRFA, based on the RIR, that concludes that

Amendment 16A and this proposed rule, if adopted, would have

significant economic impacts on a substantial number of small entities.

A summary of the IRFA follows.

The rule is proposed to address fish trap fishing violations in

south Florida and to provide more effective monitoring and reporting

for all fish trapping operations. The Magnuson-Stevens Act provides the

legal basis for the rule, and no duplicative, overlapping, or

conflicting Federal rules were identified.

It was determined that 86 commercial fish trapping businesses and

an undetermined number of spiny lobster and stone crab fishermen, all

of which qualify as small business entities, would be affected by the

rule. Of the 86 fish trapping businesses, 12 have home ports in the

Keys and can expect a greater than 5-percent decrease in revenues if it

becomes illegal to use fish traps in the specified south Florida area

in 2 years. The action that would limit possession of Gulf reef fish

exhibiting trap rash to those vessels with a fish trap endorsement is

expected to reduce revenues of some stone crab and spiny lobster

fishermen. All the revenue losses are characterized as long-term with

no offsetting benefits to the small businesses identified. All 86

vessels would incur additional compliance costs (annualized capital,

operating and reporting costs).

Assuming that a VMS system is imposed in 1999 through a subsequent

rulemaking, the 86 firms would incur a capital cost for installation

estimated at $1500 per vessel plus undetermined annual costs of

maintenance and cellular phone reporting of VMS data. The 86 firms

would incur costs of reporting before and after each trip before a VMS

system was put into effect and would also incur costs associated with

having all gear inspected. The IRFA made no determination regarding the

number of small business entities that could be forced to cease

business operations if the proposals go into effect.

Alternatives are identified for the four proposed actions. In all

cases, the status quo provides the least adverse impact on small

entities, but the status quo was rejected as being incapable of

addressing the issue of fish trap violations. The other rejected

alternative to a 2-year phaseout of trapping in south Florida was a 2-

year phaseout of all fish trapping; it would have a much greater

negative impact. The VMS preferred alternative was for a design study

of a VMS system to be followed by implementation under a separate

rulemaking. One alternative recommended implementing the VMS system

directly. This alternative was rejected because of the implied costs

and the need for the design to be completed.

The proposed action regarding trip limits for vessels with reef

fish permits that are fishing spiny lobster and stone crab maintains

the status quo of no trip limits for possession of reef fish, but it

requires vessels to have a fish trap endorsement if there are fish

exhibiting trap rash on board. Other trip limit alternatives would

institute various trip limits. However, they were rejected because the

Council concluded that the trap rash provision would resolve

enforcement problems better by putting the burden on the fishermen to

prove that they were legal fish trappers if they possessed fish with

trap rash.

For the action recommending additional reporting requirements,

there were two alternatives that were both rejected on the basis of

creating greater negative impacts than the preferred alternative

without an offsetting improvement in the reporting process. The status

quo was rejected because of the need to manage the fishery better

through improved information gathering.

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 collection-of-information requirements

subject to the PRA--namely, a requirement for fish trap vessel

operators to provide, via toll-free telephone calls, trip initiation

and trip termination reports and an annual 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 collection-of-information

requirements have been submitted to OMB for approval. 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.

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).

List of Subjects in 50 CFR Part 622

Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping

requirements, Virgin Islands.

Dated: March 1, 1999.

Andrew A. Rosenberg, Ph.D.,

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:

[[Page 10616]]

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. 622.5, 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) Annual inspection. Each year, the RD will establish a 1-month

period for mandatory inspection of all fish trap gear, permits, and

vessels. The RD 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 a

24-hour toll-free number that will be provided in the final rule.

(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]

* * * * *

3. 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).

* * * * *

4. In Sec. 622.31, paragraph (c)(2) is revised to read as follows:

Sec. 622.31 Prohibited gear and methods.

* * * * *

(c) * * *

(2) In the Gulf EEZ, a fish trap--

(i) May not be used or possessed west of 85 deg.30' W. long.;

(ii) May not be used, but may be possessed on board a vessel with a

valid fish trap endorsement for the sole purpose of transit, after

February 7, 2001, south of 25 deg.03' N. lat.; and

(iii) May not be used or possessed after February 7, 2007.

* * * * *

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. 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. 99-5498 Filed 3-4-99; 8:45 am]

BILLING CODE 3510-22-F