[Federal Register Volume 59, Number 5 (Friday, January 7, 1994)] [Rules and Regulations] [Pages 966-978] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-118] [[Page Unknown]] [Federal Register: January 7, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 641 [Docket No. 930946-3338; ID 090993A] RIN 0648-AE58 Reef Fish Fishery of the Gulf of Mexico AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: NMFS issues this final rule to implement Amendment 5 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) and to make other changes to the regulations This rule imposes a moratorium on additional participants in the Gulf of Mexico reef fish fishery who may use fish traps; imposes additional restrictions on the use of fish traps; increases the minimum allowable size of red snapper; requires that most finfish be maintained with head and fins intact through landing; closes an area southwest of Dry Tortugas, Florida, to all fishing during May and June each year; creates a special management zone (SMZ) in the EEZ off Alabama in which there are gear restrictions; and adds to the management measures that may be adjusted via a framework procedure the establishment or modification of SMZs and associated gear restrictions. In addition, NMFS simplifies and clarifies the regulations to conform them to current usage. The intended effects of this rule are to reduce fishing mortality of the reef fish resources so that they may be protected and rebuilt, to enhance enforceability of the regulations, and to otherwise clarify the regulations. EFFECTIVE DATES: February 7, 1994, except that Sec. 641.4(o) is effective February 7, 1994, through February 7, 1997. FOR FURTHER INFORMATION CONTACT: Robert Sadler, 813-893-3161. SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico is managed under the FMP. The FMP was prepared by the Gulf of Mexico Fishery Management Council (Council) and is implemented through regulations at 50 CFR part 641 under the authority of the Magnuson Fishery Conservation and Management Act (Magnuson Act). Detailed descriptions, backgrounds, and rationales for the management measures in Amendment 5 and the additional measures proposed by NMFS were included in the proposed rule (58 FR 52063, October 6, 1993) and are not repeated here. Comments and Responses Comments were received from 141 entities (including seven that opposed all measures proposed under Amendment 5, but did not offer specific rationale). Several comments referred to a specific management measure but suggested disapproval of all of Amendment 5. A minority report signed by four Council members objected to all provisions of Amendment 5 except for the requirement that all fish be landed with head and fins intact. Comments and responses are summarized, by subject, as follows. Moratorium on Fish Traps Comment: Nineteen individuals, one fish house, and the minority report objected to the fish trap moratorium as unfair and unnecessary. Most of the commenters anticipated severe economic impacts and disruption of their communities if the moratorium is approved. Generally, the individual commenters were persons who had not landed reef fish from fish taps before the cutoff date (November 19, 1992) and, therefore, would not be eligible for fish trap endorsements on their reef fish permits. Response: The moratorium was developed in response to public testimony at Council meetings in 1992 that fishery and ecological damage, user group conflicts, and other social and economic impacts are expected if the trap fishery expands. Amendment 5 provides some data indicating that the use of fish traps in the Gulf of Mexico may be expanding, in terms of number of participants and geographical range. However, little or no data are available to assess catch composition or ecological effects of trap deployment. Although the number of reef fish vessels is capped by the permit moratorium, there is no limitation on the number of currently permitted vessels that may use fish traps, and each vessel may use up to 100 fish traps. The expressed intent of Amendment 5 is to freeze participation in the fish trap fishery at levels existing at the time of Council deliberations and public testimony (November 19, 1992). This includes all those who have historically depended on the fish trap fishery in the Gulf and who were participating in the fishery as of the specified cut-off date. It excludes only new participants entering after that date. Since all landings by fish traps are required to be reported, vessel logbook records were selected as the means to verify use of fish traps. There are approximately 273 reef fish vessel permits that currently authorize the use of fish traps. Of these, 120 reported landings from fish traps by November 19, 1992, and 60 reported only after that date. The other 93 reported no reef fish landings with traps from 1991 to date. The Council rejected more severe fish trap management proposals, including a total ban, and instead proposed the moratorium as an interim measure to control access to the trap fishery until better information could be obtained on ecological, biological, social, and economical effects. NMFS concurs with the Council proposal. Amendment 5 recognizes the need for better information, some of which may become available under a current NMFS research project. Comment: Many of the comments also claimed that the Council acted without adequate public notification, most specifically to fishermen who made significant financial investments in the trap fishery but would be ineligible to continue trap fishing under the moratorium. Response: The Council provided notification of proposed limitations on the use of fish traps in the reef fish fishery as follows: (1) A Federal Register notice (57 FR 47235, October 15, 1992) and a news release sent to Council constituents, NMFS statistical agents, Sea Grant agents, and newspapers announced upcoming public hearings on proposed changes to the reef fish regulations, including additional regulations on the use of fish traps--possibly prohibiting their use, and provided an opportunity for written comments or participation at the hearings; (2) a Federal Register notice (57 FR 48510, October 26, 1992) and a November 4, 1992, news release sent to Council constituents, NMFS statistical agents, Sea Grant agents, and newspapers announced the Council's scheduled meetings of November 16-19, 1992, specified the agenda, which included additional regulations on the use of fish traps, and scheduled a period at the meeting for public testimony on the proposed changes; (3) a Federal Register notice (57 FR 48510, October 26, 1992) announced a public meeting of the Council's Reef Fish Advisory Panel and its Standing and Special Reef Fish Scientific and Statistical Committee scheduled for November 9-10, 1992, and specified the agenda, which included additional regulations on the use of fish traps--possibly prohibiting their use; and (4) a newsletter distributed to Council constituents in early December 1992 announced the Council's vote on November 19, 1992, for the moratorium. Eight public hearings at various locations between Key West, Florida, and Galveston, Texas, were held by the Council prior to the cutoff date, including a hearing attended by a relatively large number of participants at the Council meeting on November 18, 1992. Comment: One individual suggested a total ban on the use of fish traps in the Gulf of Mexico; another suggested establishing an SMZ to ban fish traps in the Florida Keys, instead of implementing the proposed fish trap moratorium. Response: A total ban on the use of fish traps was proposed in draft Amendment 5, but later was rejected by the Council in Amendment 5 based on a review of available data and objections raised by the public and NMFS. According to the analyses and data provided in Amendment 5, a fish trap ban would not comply with the Magnuson Act national standards or other applicable law. The moratorium is intended as a temporary control on the range and extent of the fishery, pending collection of additional fishery data (as referenced above). Require Fish Traps To Be Returned to Port on Each Trip Comment: Four individuals and the Council minority report opposed this measure as burdensome and unnecessary. Several commenters cited vessel safety problems and stated that their fishing efforts would be limited by the number of traps their vessels could carry. However, one individual supported the proposed requirement. Response: The current regulations, which do not require that fish traps be returned to shore after each fishing trip, cause problems with locating and inspecting, dock-side or in transit, fish traps for enforcement purposes. Amendment 5 recognizes the costs and limitations associated with returning all traps to port after each trip, particularly for smaller vessels unable to carry safely all the traps they now use. Nonetheless, the Council determined that this measure provides benefits by providing enforcement opportunities for inspection of fish traps for compliance with construction, quantity, and tagging requirements. Moreover, many fish trap fishermen currently utilize this practice, and therefore would not be affected by the requirement. This requirement does not inherently create a vessel safety problem. Vessel owners and operators are encouraged to carry only that number of traps which can be safely carried given the size and weight of the traps, the size and tonnage of the vessel, and applicable weather conditions. Lastly, for these reasons, NMFS concurs with the Council and the individual commenter supporting the measure. Buoying Requirements for Fish Traps Comment: An environmental organization supported this measure. The minority report objected to the requirement for surface buoys for each single trap or end traps in a string of traps as increasing the chances of lost traps and ghost fishing in areas of strong currents and frequent ship traffic. The report argues that the presently allowed submerged buoys are sufficient. Response: The current regulations allow trap buoys to be submerged and released with pop-up devices. This creates an enforcement problem locating fish traps at sea and may lead to increased numbers of lost traps. The requirement for surface buoys for individual traps, or for each end trap of traps that are connected by a line, is needed to enhance spotting of traps from the air or at sea for enforcement purposes. This requirement was not objected to by public comments. No fishermen agreed with the objections raised in the minority report. Since available information indicates a need for more effective regulation of the fish trap fishery, NMFS concurs with the Council and the environmental organization and supports this management measure as an appropriate means of regulating fish traps. Special Management Zones (SMZs) Off Alabama Amendment 5 proposes to establish three large SMZs off Alabama, wherein reef fish bag limits and a ``no-sale'' provision would apply to fishing for reef fish with buoy gear, longlines, or gear with more than three hooks per line. In response to concerns raised about the proposed SMZs, NMFS invited public comment on the proposed rule on the following specific concerns: (1) What are the effects of establishing areas totaling approximately 820 square miles (2,124 square km) in which fishing under the commercial allocations would be severely limited; (2) What are the effects of the 3-hook limit on the recreational and commercial user groups; (3) What are the effects on the rebuilding plan of increasing availability of red snapper to the recreational fishery, particularly those in Alabama; and (4) Are the Alabama SMZs consistent with the fairness and equity criteria proposed under the proposed framework procedure for adding SMZs and, if not, should they be consistent? Comment: The minority report objected to the establishment of the SMZs. In addition, a total of 105 entities commented on the proposal, with 74 comments in support and 31 in opposition. The minority report objected to the SMZs as unfair and therefore in violation of the Magnuson Act. The report also claimed that: (1) The Council acted without adequate public notification; (2) no information was presented on historical uses of the tracts; (3) testimony that commercial reef fish fishermen also had constructed reefs was ignored by the Council; and (4) the size of the tracts is so large that enforcement is impractical. In addition, 26 individuals, two commercial fishing organizations, and two fish houses offered various objections to the proposed SMZ designations and gear restrictions. Several disagreed with a statement in Amendment 5 that pulse and derby fishing on the red snapper resource was concentrated on the proposed SMZs off Alabama starting in April 1992. Additionally, a number of commenters objected to implications in Amendment 5 that the three tracts contained virtually no natural reefs or hard bottom area. Tracts B and C were frequently identified as having significant natural reef fish habitat. Many of the reef fish fishermen claimed that once the red snapper season closes, bandit gear hook-and-line fishing occurs for vermilion snapper in the tracts. In addition, several fish houses and fishermen commented that the vermilion snapper fishery in tracts B and C typically is separated geographically and in time from the winter fishery for red snapper. Several comments indicated that vermilion snapper are relatively low-valued fish which have to be targeted with large numbers of hooks per line; i.e., they cannot profitably be fished commercially with three hooks or less. According to one dealer, the vermilion snapper fishery in the tracts includes as many as 18 vessels out of Pensacola, Florida, and a similar number from the Destin, Florida, area. Other commenters indicated that up to 150 commercial vessels would be impacted adversely by the 3-hook rule. This information was not available to the Council during debate on Amendment 5. Several individuals also commented that this proposal, in effect, unfairly allocates part of the total allowable catch to reef fish harvesters who meet the 3-hook limit at the expense of users of longlines, buoy gear, or lines with more than three hooks. In addition, several of the public comments claim that enforcement efforts would be complicated by allowing harvest of fish other than reef fish with lines having more than three hooks and by the unusually large size of the three tracts. One commenter recommended disapproving tract C; another recommended disapproving both tracts B and C. An environmental organization indicated general support for the SMZs as a means of offering recreational fishing opportunities, but expressed concern over the resulting impacts on other fisheries once reef fish gear is restricted. The organization also indicated a need to control fishing effort on natural reefs. Response: Concerning the minority report, NMFS has concluded that the Council provided adequate notification of Council meetings and public hearings on Amendment 5 (as outlined in our response to comments on the fish trap moratorium). Eight public hearings were held by the Council on Amendment 5, including a hearing attended by a relatively large number of participants in the reef fish fishery at the Council meeting on November 18, 1992. Many of the objections raised by the minority report and individual commenters which contest statements found in Amendment 5 are supportable by available NMFS information. For example, red snapper commercial landings for 1992 totalled only about 130,000 pounds from the statistical grid which includes tracts B and C (statistical grid 10) and were less than previous years. This does not support the contention in Amendment 5 that pulse overfishing occurred in these two tracts, or that the artificial reefs produced additional red snapper which were then taken and landed in commercial quantities. Moreover, these data do not indicate that the short red snapper season caused more persons to take excessive advantage of the artificial reefs in tracts B and C. The contention of many commenters that the proposed SMZs, particularly tracts B and C, supported a valuable vermilion snapper fishery is also supported by available data. NMFS commercial landing records for 1962-1990 indicate that statistical grid 10 produced the largest landings of vermilion snapper of all the Gulf grids (approximately 12 percent of the Gulf-wide catch). The actual catch from tracts B and C may be higher than 12 percent since 28 percent of the 1962-1990 vermilion snapper landings cannot be traced to any statistical grid, and part of tract C extends seaward of the grid 10 boundary. Due to its proximity to shore, tract A is more readily available for the harvest of red snapper and could contribute to rapid harvest upon opening of the 1993 red snapper commercial harvest period. Additionally, landings data and several of the public comments indicate that tract A does not support a large fishery for vermilion snapper and as an SMZ would pose less adverse impact on historical fisheries. Therefore, tract A appears to be in greater need of the proposed protection as an SMZ than the other two tracts. The 3-hook rule could slow the rate of red snapper harvest in that tract should those who previously used non-conforming gear choose not to compensate by increasing effort or the number of lines per boat. Tract A also would incur the least amount of at-sea time needed by enforcement staff to verify the number of hooks on each reef fish line being used in the tract. Tract B (360 square miles (932 square km)) and tract C (360 square miles (932 square km)) are significantly larger than tract A (100 square miles (259 square km)) and, according to public comments, contain natural reefs and substantial hard bottom habitat, which is important for supporting the vermilion snapper fishery. Without additional rationale, tracts B and C do not appear to be appropriate candidates for the proposed SMZ designation and gear restrictions, mainly because of public and NMFS concerns over adverse impacts to the vermilion snapper fishery documented in those areas. For these reasons, NMFS approves only tract A for the SMZ designation and gear restrictions proposed by the Council. Approval of SMZ tracts B and C is not appropriate given the public comments and landings data which indicate the presence of an important fishery for vermilion snapper that was not addressed in Amendment 5 and that would be unnecessarily eliminated by the 3-hook limit and ``no-sale'' provision. Comment: Seventy-two individuals, one wildlife organization, and one recreational fishing organization supported the SMZs and gear restrictions. The individuals included recreational fishermen and a builder of artificial reefs, all of whom indicated as a rationale for their support that artificial reef fish communities (primarily red snapper) are in need of protection from efficient commercial reef fish fishing gear. Other comments covered related topics and noted that the gear restriction would not in itself prohibit commercial fishing but may extend the season. Several commenters suggested management measures outside the scope of the proposed rule (i.e., allow only rod-and-reel fishing in the SMZs). However, many of the 74 comments that supported the SMZs provided little or no detailed rationale regarding the areas of concern listed in the proposed rule. Response: NMFS acknowledges that SMZ designation of some nearshore artificial reefs may protect the reef fish resources from over exploitation (for the reasons stated above), and therefore has approved tract A. Landings data from the statistical grid that contains tracts B and C do not support the Council's contention that a significant red snapper fishery in those tracts displaced either persons who constructed the artificial reefs or who traditionally fished with fewer hooks per line. Furthermore, Amendment 5 does not clearly indicate or analyze the extent of the vermilion snapper commercial fishery whose participants rely on those tracts for income year round. Unlike red snapper, vermilion snapper has not been shown to be overfished; moreover, artificial reefs have not been shown to be of specific benefit to vermilion snapper. In addition to the 3-hook rule, a ban on reef fish commercial longlining (including use of three hooks or less per line) also was proposed for the area within tract C where that gear currently is allowed. Amendment 5 did not adequately address the impacts resulting from the proposed prohibition, particularly on the deepwater grouper longline fishery. As indicated by some of the comments, the 3-hook rule in itself does not prohibit all commercial fishing. Available information, however, indicates that moving the boundary of the longline and buoy gear restricted area outside tract C, in combination with the 3-hook rule in tracts B and C, would effectively have eliminated the historical fisheries in those tracts. Framework Procedure for Establishing SMZs Comment: One environmental organization supported the regulatory amendment procedure as critical to protecting artificial reefs. One individual and the minority report objected to the procedure because they believe it would result in the placement of additional artificial reefs in tracts B and C, which they believe contain economically valuable natural reef or line bottom habitat. Response: It is conceivable that approving the framework procedure could encourage additional construction of artificial reefs (as acknowledged in Amendment 5). However, the present disapproval of tracts B and C should resolve this issue. Furthermore, the framework procedure is designed to provide for a thorough scientific evaluation of the benefits and costs and environmental impacts of future proposed SMZs. The framework procedure specifies that each SMZ would have to be extensively reviewed by the Council's advisors, monitoring team, and scientific committee prior to Council review and submittal for abbreviated rulemaking. Moreover, each framework request must comply with the six criteria listed in the procedure, including fairness, equity, and consideration of natural bottom habitat. This would include tracts B and C should the Council choose to resubmit a revised framework proposal addressing these areas. Accordingly, NMFS concurs with the proposed framework procedure for establishing SMZs. Increases in the Minimum Size Limit for Red Snapper Comment: Six fishermen contended that additional release mortality and economic impacts of the increased size limit (including elimination of a market size) would outweigh any benefits. These concerns also were contained in the minority report, which noted the potential for imports replacing that size of red snapper in the U.S. market. One commenter also noted text from the regulation amendment prepared by the Council in 1990 that cites impacts of additional mortality in support of the status quo. Several fishermen feared decreased demand by consumers for the larger size fillets. Other comments indicated that red snapper are not in need of additional protection. An environmental organization and a recreational fishing organization commented in favor of the increased size limits. Response: Although there may be some initial short-term adverse economic impacts associated with the incremental size limit increases, NMFS economic analyses indicate that the longer term economic gains should outweigh short-term revenue losses. Concerning the comment on an earlier Council document that supported status quo, information is now available that supports the Council's proposal. For example, red snapper price information from the 1993 season indicates that there was a modest price premium paid for the one- to two-pound size in the early part of 1993, but by the end of the season, prices generally were the same for all size categories. The major advantage of the incremental size increases is that it will allow for harvest of the fish when yield per recruit is maximized. Additionally, it aids in the rebuilding of the stock and reduces the urgency to implement in 1994 the program to reduce bycatch of juvenile red snapper in the shrimp trawl fishery. The FMP calls for a 50 percent bycatch reduction in the shrimp fishery by 1994. However, this goal could not be achieved without significant economic losses to the shrimp fishery. More recent stock assessment analyses assuming implementation of the size limit increases indicate various probabilities of stock recovery by the target year of 2009, based on the following dates for reaching the specified bycatch reduction goal of 50 percent: early 1994-95 percent, 1995--90 percent; or 1996--70 percent. Moreover, a very active research program is underway that potentially will provide bycatch and mortality information leading to the desired bycatch reduction goal without adversely impacting the fisheries for either shrimp or red snapper. For these reasons, NMFS concurs with the proposed increases in the minimum size limit for red snapper. Mutton Snapper Spawning Aggregation Closure Comment: The minority report questioned the need for protection of the aggregation, given that mutton snapper have not been shown to be overfished. One individual claimed that no significant bycatch of mutton snapper occurs while fishing for yellowtail snapper, and that closure of the area to all fishing is therefore unnecessary. Response: Mutton snapper have been shown to be particularly vulnerable to harvest during the spawning season. Species that aggregate for spawning are vulnerable to fishing effort and traditionally are easier to catch at that time. In addition, they may be caught before spawning activity occurs. While the resource may not be overfished Gulf-wide, local overfishing could occur in the aggregation. Moreover, allowing fishing for other species could complicate enforcement of the closure, and vessels targeting mutton snapper could have the opportunity to discard their catch before being boarded by an authorized officer. The benefits of the action could be reduced significantly by mutton snapper release mortality as part of fishing for other species. For these reasons, the proposed closure to all fishing is necessary to protect the spawning individuals during this critical period. Accordingly, NMFS concurs with the spawning aggregation closure. Finfish Landed With Head and Fins Intact Comment: An environmental organization supported this proposal. Response: NMFS concurs with the Council and the commenter. Changes From the Proposed Rule Section 641.4(b)(2)(xiii)(C) requires an applicant for a vessel permit to sign a statement that he or she will allow an authorized officer reasonable access to his or her property to examine fish traps for compliance with the regulations. NMFS finds that this requirement is unnecessary. Accordingly, as a technical amendment, this final rule removes Sec. 641.4(b)(2)(xiii)(C). Section 641.4(o)(1) in the proposed rule specified that a fish trap endorsement will not be issued or renewed unless the vessel for which the endorsement is requested and its current owner have records of landings of reef fish from fish traps in the EEZ of the Gulf of Mexico during 1991 or 1992, as reported on fishing vessel logbooks received by the Science and Research Director on or before November 19, 1992. As a result, persons with the qualifying catch record, but who have sold or transferred the vessel from which reef fish were harvested with fish traps and reported to NMFS, would be ineligible if the current regulations are implemented. NMFS finds that this requirement is inconsistent with the Council's intent, which was to limit the use of fish traps to those persons who had participated in the fish trap fishery and whose reports had been received as of November 19, 1992. Accordingly, Sec. 641.4(o)(1) is re-written to specify that a fish trap endorsement will not be issued or renewed unless the current owner of the vessel for which the endorsement is requested has a record of landings of reef fish from fish traps in the EEZ of the Gulf of Mexico during 1991 or 1992, as reported on fishing vessel logbooks received by the Science and Research Director on or before November 19, 1992. Changes from the proposed rule to effect implementation of the moratorium have been made at Sec. 641.4 (a)(4) and (o)(2) and Sec. 641.7(y). For the initial implementation of the moratorium on fish trap endorsements, NMFS intends to reissue the permit for each vessel that meets the criteria for the fish trap endorsement. Such reissued permit will have a ``Date Issued'' of February 7, 1994, the effective date of this final rule, and will be endorsed for the use of fish traps. On and after that date, a fish trap endorsement is valid only when it is on such a reissued permit. A fish trap endorsement on a permit issued before that date will not be valid. Each owner of a vessel that has a permit that currently authorizes the use of fish traps will receive by January 24, 1994, either a reissued permit with a fish trap endorsement or a letter advising him or her that the current fish trap endorsement on the permit will not be valid as of February 7, 1994. With removal from the regulations of the specific information that must be included in required reports by fishing vessels, the term ``statistical area'' is no longer used. Accordingly, this final rule removes the definition of ``statistical area'' from Sec. 641.2 and removes Figure 2, which depicts the statistical grids, from Appendix A. Depiction of the grids is included with the reporting forms that are provided by the Science and Research Director. The proposed rule to implement Amendment 5 contained changes to Sec. 641.5(d), the reporting requirements for dealers and processors. The proposed changes were minor, primarily for standardization. More substantive changes to these reporting requirements are contained in Amendment 7 to the FMP, the proposed rule for which was published on October 27, 1993 (58 FR 57771). Accordingly, the proposed changes to Sec. 641.5(d) in the rule to implement Amendment 5 are deleted. In Sec. 641.22, paragraph (b)(2)(iii)(A) is revised to clarify that untreated jute string may not be wrapped or overlapped when used as degradable material. Wrapping or overlapping overly prolongs the time for the material to degrade. In Secs. 641.6(e) and 641.22(b)(7), language in the proposed rule regarding buoys on each end of a ``string'' of traps is revised. Trap fishermen refer to traps placed in a line as a ``string,'' even when such traps are not connected. For clarity, this final rule requires buoys for marking individual, separate traps or each end trap of traps that are connected by a line. In Sec. 641.23(d), for the reasons discussed above, proposed SMZs B and C have been deleted. Concomitantly, in Appendix A, the proposed change to Table 2, and that part of the proposed change to Figure 5 that would have moved the seaward limits of the longline and buoy gear restricted area so that all of proposed SMZ C would be shoreward of the limits, are deleted. Figures 4 and 5 in Appendix A have been enlarged to more clearly depict the seaward limits of the stressed area and of the longline and buoy gear restricted area, respectively. Figures 3 through 6 now depict each of the limits separately for the eastern and western portions of the Gulf of Mexico. Partial Disapproval of Amendment 5 On December 16, 1993, the Secretary of Commerce (Secretary) partially disapproved Amendment 5. As discussed above, the provisions that would have established tracts B and C as SMZs were disapproved. Classification The Secretary determined that Amendment 5 is necessary for the conservation and management of the reef fish fishery and that it is consistent with the national standards, other provisions of the Magnuson Act, and other applicable law, with the exception of the provisions that would have established SMZs B and C. The Council prepared a regulatory impact review as part of Amendment 5. A summary of the regulatory impacts was contained in the proposed rule and is not repeated here. The Council prepared an initial regulatory flexibility analysis (RFA) for this action. The initial RFA has been adopted as final without change. The final RFA concludes that the measures in this final rule, considered individually, would not have a significant economic impact on small entities, but, considered collectively, would have a significant economic impact on a substantial number of small entities. The Council prepared a final supplemental environmental impact statement (SEIS) for Amendment 5 that discusses the impacts on the environment of the reef fish fishery and the impacts that would result from implementation of the amendment. The final SEIS was filed with the Environmental Protection Agency (EPA). EPA published on October 15, 1993, (58 FR 53512) a notice of availability of the final SEIS for a 30-day comment period. The Council determined that the proposed rule would be implemented in a manner that is consistent to the maximum extent practicable with the approved coastal zone management programs of Alabama, Florida, Louisiana, and Mississippi. Texas does not have an approved coastal zone management program. These determinations were submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act. Louisiana and Mississippi agreed with this determination. Alabama and Florida did not respond within the statutory time period; therefore, state agency agreement with the consistency determination is presumed. This final rule involves, but does not change, collection-of- information requirements subject to the Paperwork Reduction Act, specifically, fishing vessel permits and fishing vessel reports. These requirements were previously approved by the Office of Management and Budget under OMB Control Numbers 0648-0205 and 0648-0016, respectively. The public reporting burdens for these collections of information, estimated to average 15 and 10-18 minutes per response, respectively, are not changed by this rule. Send comments regarding these burdens or any other aspect of these collections of information, including suggestions for reducing the burdens, to Edward E. Burgess, Southeast Regional Office, NMFS, 9450 Koger Boulevard, St. Petersburg, FL 33702, and to the Office of Information and Regulatory Affairs, Office of Management and Budget (Attention: NOAA Desk Officer), Washington, DC 20503. This rule is not significant and is not subject to review under E.O. 12866. This final rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under E.O. 12612. List of Subjects in 50 CFR Part 641 Fisheries, Fishing, Reporting and recordkeeping requirements. Dated: December 30, 1993. Nancy Foster, Deputy Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set forth in the preamble, 50 CFR part 641 is amended as follows: PART 641--REEF FISH FISHERY OF THE GULF OF MEXICO 1. The authority citation for part 641 continues to read as follows: Authority 16 U.S.C. 1801 et seq. 2. In Sec. 641.1, paragraph (b) is revised to read as follows: Sec. 641.1 Purpose and scope. * * * * * (b) This part governs conservation and management of reef fish in the Gulf of Mexico EEZ, except that Secs. 641.5 and 641.25 also apply to fish from adjoining state waters. The boundary between the Gulf of Mexico EEZ and the Atlantic Ocean EEZ begins at the intersection of the outer boundary of the EEZ and 83 deg.00'W. longitude, proceeds north to 24 deg.35'N. latitude (near Dry Tortugas), east to Marquesas Key, then through the Florida Keys to the mainland. Sec. 641.2 [Amended] 3. In Sec. 641.2, the definition for ``Statistical area'' is removed. 4. In Sec. 641.4, paragraphs (b)(2)(xiii)(C) and (b)(2)(xiv) are removed; paragraphs (a)(1), (a)(4), (b)(1), (b)(2) introductory text, (b)(2)(xi), (b)(2)(Xiii)(B), (h), (i), and (k) are revised; and new paragraph (o) is added to read as follows: Sec. 641.4 Permits and fees. (a) * * * (1) As a prerequisite to selling reef fish and to be eligible for exemption from bag the limits specified in Sec. 641.24(b), an owner or operator of a vessel that fishes in the EEZ must obtain an annual vessel permit. * * * * * (4) To possess or use a fish trap in the EEZ, an annual vessel permit for reef fish with a valid fish trap endorsement thereon must be issued to the vessel and must be on board the vessel. (See paragraph (o)(2) of this section for information on the validity of a fish trap endorsement.) In addition, a color code for marking the vessel and trap buoys must be obtained from the Regional Director. * * * * * (b) * * * (1) An application for a vessel permit must be submitted and signed by the owner or operator of the vessel. The application must be submitted to the Regional Director at least 30 days prior to the date on which the applicant desires to have the permit made effective. (2) A permit applicant must provide the following information: * * * * * (xi) A sworn statement by the applicant certifying that more than 50 percent of his or her earned income was derived from commercial fishing, that is, sale of the catch, or charter or headboat operations, during either of the two calendar years preceding the application; * * * * * (xiii) * * * (B) The applicant's desired color code for use in identifying his or her vessel and buoys (white is not an acceptable color code). * * * * * (h) Display. A permit or endorsement issued under this section must be carried on board the fishing vessel and such vessel must be identified as provided for in Sec. 641.6. The operator of a fishing vessel must present the permit or endorsement for inspection upon request of an authorized officer. (i) Sanctions and denials. A permit or endorsement issued pursuant to this section may be revoked, suspended, or modified, and a permit or endorsement application may be denied, in accordance with the procedures governing enforcement-related permit sanctions and denials found at subpart D of 15 CFR part 904. * * * * * (k) Replacement. A replacement permit or endorsement may be issued. An application for a replacement permit or endorsement will not be considered a new application. A fee, the amount of which is stated with the application form, must accompany each request for a replacement. * * * * * (o) Moratorium on fish trap endorsements. The provisions of this paragraph (o) are effective through February 7, 1997. (1) A fish trap endorsement will not be issued or renewed unless the current owner of the permitted vessel for which the endorsement is requested has a record of landings of reef fish from fish traps in the EEZ of the Gulf of Mexico during 1991 or 1992, as reported on fishing vessel logbooks received by the Science and Research Director on or before November 19, 1992. An owner will not be issued fish trap endorsements for vessels in numbers exceeding the number of vessels for which the owning entity had the requisite reported landings in 1991 or 1992. (2) A fish trap endorsement on a vessel permit issued under this section that has a ``Date Issued'' of February 7, 1994, or later, is valid. Endorsements on permits issued before that date are not valid. (3) An owner of a vessel with a fish trap endorsement may transfer the endorsement to another vessel owned by the same entity by returning the existing endorsement with an application for an endorsement for the replacement vessel. (4) A fish trap endorsement is not transferable upon purchase of a vessel with a fish trap endorsement, the provisions of paragraph (1)(3) of this section regarding purchase of a vessel with a reef fish permit notwithstanding. (5) A fish trap endorsement that is not renewed or that is revoked will not be reissued. 5. In Sec. 641.5, paragraphs (b), (c), (f), (g), and (i) are revised to read as follows: Sec. 641.5 Recordkeeping and reporting. * * * * * (b) Vessels fishing with fish traps. The owner or operator of a vessel for which a fish trap endorsement has been issued under Sec. 641.4, or the owner or operator of a vessel that uses a fish trap in adjoining state waters, must maintain a fishing record on a form available from the Science and Research Director. These forms must be submitted to the Science and Research Director so as to be received not later than 7 days after the end of each fishing trip. If no fishing occurred during a month, a report so stating must be submitted on one of the forms to be received not later than 7 days after the end of each month. Information to be reported is indicated on the form and its accompanying instructions. (c) Vessels not fishing with fish traps. The owner or operator of a vessel for which a reef fish permit has been issued under Sec. 641.4, or the owner or operator of a vessel that harvests reef fish in adjoining state waters, and who is selected by the Science and Research Director, must maintain a fishing record on a form available from the Science and Research Director. These forms must be submitted to the Science and Research Director on a monthly basis (or more frequently, if requested by the Science and Research Director) so as to be received not later than 7 days after the end of the reporting period. If no fishing occurred during a reporting period, a report so stating must be submitted on one of the forms to be received not later than 7 days after the end of the reporting period. Information to be reported is indicated on the form and its accompanying instructions. * * * * * (f) Charter vessels. The owner or operator of a charter vessel that fishes for or lands reef fish under the bag limits in the Gulf of Mexico EEZ or in adjoining state waters, and who is selected by the Science and Research Director, must maintain a daily fishing record for each trip on forms provided by the Science and Research Director. These forms must be submitted to the Science and Research Director on a weekly basis so as to be received not later than 7 days after the end of each week (Sunday). Information to be reported is indicated on the form and its accompanying instructions. (g) Headboats. The owner or operator of a headboat that fishes for or lands reef fish under the bag limits in the Gulf of Mexico EEZ or in adjoining state waters, and who is selected by the Science and Research Director, must maintain a daily fishing record for each trip, or a portion of such trips as specified by the Science and Research Director, on forms provided by the Science and Research Director. These forms must be submitted to the Science and Research Director at least monthly so as to be received not later than 7 days after the end of each month. Information to be reported is indicated on the form and its accompanying instructions. * * * * * (i) Additional data and inspection. Additional data will be collected by authorized statistical reporting agents, as designees of the Science and Research Director, and by authorized officers. An owner or operator of a fishing vessel and a dealer or processor are required upon request to make reef fish or parts thereof available for inspection by the Science and Research Director or an authorized officer. 6. In Sec. 641.6, the section heading and paragraphs (a) through (e) are revised to read as follows: Sec. 641.6 Vessel and gear identification. (a) Official number. A vessel for which a permit has been issued under Sec. 641.4 must display its official number-- (1) On the port and starboard sides of the deckhouse or hull and on an appropriate weather deck so as to be clearly visible from an enforcement vessel or aircraft; (2) In block arabic numerals in contrasting color to the background; (3) At least 18 inches (45.7 cm) in height for fishing vessels over 65 feet (19.8 m) in length and at least 10 inches (25.4 cm) in height for all other vessels; and (4) Permanently affixed to or painted on the vessel. (b) Color code. In addition to its official number, a vessel for which a fish trap endorsement has been issued under Sec. 641.4 must display its color code-- (1) On the port and starboard sides of the deckhouse or hull and on an appropriate weather deck so as to be clearly visible from an enforcement vessel or aircraft; (2) In the form of a circle at least 20 inches (50.8 cm) in diameter; and (3) Permanently affixed to or painted on the vessel. (c) Duties of operator. The operator of each fishing vessel specified in paragraph (a) or (b) of this section must-- (1) Keep the official number and color code clearly legible and in good repair; and (2) Ensure that no part of the fishing vessel, its rigging, fishing gear, or any other material aboard obstructs the view of the official number and color code from an enforcement vessel or aircraft. (d) Fish traps. A valid identification tag, available from the Regional Director, must be affixed to each fish trap used or possessed in the EEZ and to each fish trap aboard a vessel for which a fish trap endorsement has been issued under Sec. 641.4. Such tag shows the specific tag number (normally 1 through 100, or less), the permit number, and the month and year through which the permit and tag are valid. (e) Buoys. Each buoy used to mark a fish trap, or each end trap of traps that are connected by a line, must display the designated color code and permit number so as to be easily distinguished, located, and identified. * * * * * 7. In Sec. 641.7, paragraphs (a), (b), (g), (i), (k), (l), and (s) are revised and new paragraphs (y) through (cc) are added to read as follows: Sec. 641.7 Prohibitions. (a) Falsify information specified in Sec. 641.4(b)(2) on an application for a vessel permit, or information on an application for an endorsement on a permit. (b) Fail to display a permit or endorsement, as specified in Sec. 641.4(h). * * * * * (g) Possess a finfish without its head and fins intact, as specified in Sec. 641.21(b). * * * * * (i) Use or possess in the EEZ a fish trap that does not conform to the requirements for escape windows, panels and access doors with degradable fasteners, mesh sizes, and buoys, as specified in Sec. 641.22 (b)(1), (b)(2), (b)(3), and (b)(7). * * * * * (k) Fish or possess in the EEZ more than 100 fish traps per vessel, as specified in Sec. 641.22(b)(5). (l) Pull or tend a fish trap, except during the hours specified in Sec. 641.22(b)(6)(i); tend, open, pull, or otherwise molest or have in possession another person's fish trap, except as specified in Sec. 641.22(b)(6)(ii); or fail to retrieve all fish traps and return them to port on each trip, as specified in Sec. 641.22(b)(6)(iii). * * * * * (s) Purchase, barter, trade, or sell, or attempt to purchase, barter, trade, or sell, a reef fish possessed under the bag limits, as specified in Sec. 641.24(g). * * * * * (y) Use or possess in the EEZ a fish trap without a valid fish trap endorsement, as specified in Sec. 641.4(a)(4) and (o)(2). (z) During May and June, fish in Riley's Hump, as specified in Sec. 641.23(c). (aa) In a special management zone, fish for reef fish with prohibited or unauthorized fishing gear, or, after having fished in a special management zone for species other than reef fish, exceed the possession and landing limits for reef fish; as specified in Sec. 641.23(d). (bb) Make any false statement, oral or written, to an authorized officer concerning the taking, catching, harvesting, landing, purchase, sale, possession, or transfer of a reef fish. (cc) Interfere with, obstruct, delay, or prevent by any means an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Magnuson Act. 8. In Sec. 641.21, paragraphs (a)(1) and (b) are revised to read as follows: Sec. 641.21 Harvest limitations. (a) * * * (1) Red snapper-- (i) Effective through December 31, 1995--14 inches (35.6 cm) total length; (ii) Effective January 1, 1996, through December 31, 1997--15 inches (38.1 cm) total length; (iii) Effective January 1, 1998--16 inches (40.6 cm) total length. * * * * * (b) Head and fins intact. (1) Except as specified in paragraphs (b)(2), (b)(3), and (b)(4) of this section, a finfish possessed in the EEZ in the Gulf of Mexico must have its head and fins intact and such finfish taken from the EEZ must have its head and fins intact through landing. Such finfish may be eviscerated, gilled, and scaled but must otherwise be maintained in a whole condition. (2) Shark, swordfish, and tuna species are exempt from the requirements of paragraph (b)(1) of this section. (3) Bait is exempt from the requirements of paragraph (b)(1) of this section. (i) For the purpose of this paragraph (b)(3), bait means-- (A) Packaged, headless fish fillets that have the skin attached and are frozen or refrigerated; (B) Headless fish fillets that have the skin attached and are held in brine; or (C) Small pieces no larger than 3 cubic inches (7.6 cubic cm) or strips no larger than 3 inches by 9 inches (7.6 cm by 22.9 cm) that have the skin attached and are frozen, refrigerated, or held in brine. (ii) Paragraph (b)(3)(i) of this section notwithstanding, a finfish or part thereof possessed in or landed from the EEZ that is subsequently sold, purchased, traded, or bartered or attempted to be sold, purchased, traded, or bartered as a finfish species, rather than as bait, is not bait. (4) Legal-sized finfish possessed for consumption at sea aboard the harvesting vessel are exempt from the requirements of paragraph (b)(1) of this section provided-- (i) Such finfish do not exceed any applicable bag limit; (ii) Such finfish do not exceed 1.5 pounds (680 gm) of finfish parts per person on board; and (iii) The vessel is equipped to cook such finfish on board. * * * * * 9. In Sec. 641.22, in paragraph (b)(3) introductory text, the reference to ``Figure 3'' is revised to read ``Figure 2''; paragraphs (b)(2)(i), (b)(2)(ii), (b)(2)(iii) introductory text, (b)(2)(iii)(A), (b)(5) and (b)(6) are revised; and new paragraph (b)(7) is added to read as follows: Sec. 641.22 Gear restrictions. * * * * * (b) * * * (2) * * * (i) A panel or access door must be located opposite each side of the trap that has a funnel. (ii) The opening covered by each panel or access door must be 144 square inches (929 square cm) or larger, with one dimension of the area equal to or larger than the largest interior axis of the trap's throat (funnel) with no other dimension less than 6 inches (15.2 cm). (iii) The hinges and fasteners of each panel or access door must be constructed of one of the following degradable materials: (A) Untreated jute string of 3/16-inch (4.76-mm) diameter or smaller that is not wrapped or overlapped; or * * * * * (5) Effort limitation. The maximum number of traps that may be assigned to, possessed, or fished in the EEZ by a vessel is 100. (6) Tending traps. (i) A reef fish trap may be pulled or tended only during the period from official (civil) sunrise to official (civil) sunset. (ii) Except for inspection of a fish trap by an authorized officer, a reef fish trap may be tended only by a person aboard the vessel for which the fish trap endorsement has been issued under Sec. 641.4 to fish such trap, or aboard another vessel if such vessel has on board written consent of the owner or operator of the vessel with the fish trap endorsement. Such written consent is valid solely for the removal of fish traps from the EEZ, and harvest of fish incidental to such removal, when vessel or equipment breakdown prevents the vessel with the fish trap endorsement from retrieving its traps. (iii) The operator of a vessel from which a fish trap is deployed in the EEZ must retrieve all the vessel's fish traps and return them to port on each trip. A fish trap that is not returned to port on a trip, and its attached line and buoy, may be disposed of in any appropriate manner by the Secretary (including an authorized officer). If an owner of such trap or the operator of the responsible vessel can be ascertained, the owner and/or operator is subject to appropriate civil penalties. (7) Buoys. A buoy that floats on the surface must be attached to each fish trap, or to each end trap of traps that are connected by a line, used in the EEZ. 10. In Sec. 641.23, in paragraphs (a)(3) and (b)(3), the concluding parenthetical phrases are revised; and new paragraphs (c) and (d) are added to read as follows: Sec. 641.23 Area limitations. (a) * * * (3) * * * (See also Appendix A, Figures 3 and 4.) (b) * * * (3) * * * (See also Appendix A, Figures 5 and 6.) (c) Riley's Hump seasonal closure. From May 1 through June 30 each year, Riley's Hump, southwest of Dry Tortugas, Florida, is closed to all fishing. Riley's Hump is enclosed by rhumb lines joining the following points in the order listed: ------------------------------------------------------------------------ Point Latitude Longitude ------------------------------------------------------------------------ A...................... 24 deg.32.2' N......... 83 deg.08.7' W. B...................... 24 deg.32.2' N......... 83 deg.05.2' W. C...................... 24 deg.28.7' N......... 83 deg.05.2' W. D...................... 24 deg.28.7' N......... 83 deg.08.7' W. A...................... 24 deg.32.2' N......... 83 deg.08.7' W. ------------------------------------------------------------------------ (d) Special management zones (SMZs). (1) The following artificial reef and surrounding area is established as an SMZ: Alabama--A. The area is bounded by rhumb lines connecting the following points in the order listed: ------------------------------------------------------------------------ Point Latitude Longitude ------------------------------------------------------------------------ A...................... 30 deg.02.5' N......... 88 deg.07.7' W. B...................... 30 deg.02.6' N......... 87 deg.59.3' W. C...................... 29 deg.55.0' N......... 87 deg.55.5' W. D...................... 29 deg.54.5' N......... 88 deg.07.5' W. A...................... 30 deg.02.5' N......... 88 deg.07.7' W. ------------------------------------------------------------------------ (2) In the SMZ specified in paragraph (d)(1) of this section, fishing for reef fish is limited to hook-and-line gear with three or less hooks per line and spearfishing gear. For the purpose of this paragraph (d)(2), fishing for reef fish means possessing reef fish aboard or landing reef fish from-- (i) A vessel that is operating as a charter vessel or headboat; (ii) A recreational vessel, that is, a vessel that is not in a commercial fishery; or (iii) A vessel that has been issued a permit under Sec. 641.4 when the reef fish aboard or landed from the vessel exceed a bag limit specified in Sec. 641.24(b), for a species that has a bag limit, or exceed 5 percent by weight of all fish aboard, for other reef fish. (3) A person aboard a vessel that uses in an SMZ gear other than hook-and-line gear with three or fewer hooks per line and spearfishing gear to fish for species other than reef fish may not possess reef fish in excess of the bag limits specified in Sec. 641.24(b), for those species that have a bag limit, and in excess of 5 percent by weight of all fish aboard, for other reef fish, and may not land from a trip on which fishing was conducted in an SMZ, reef fish in excess of those limits. 11. In Sec. 641.24, in paragraph (c)(1), the phrase ``as required by the U.S. Coast Guard for trips of over 12 hours'' is removed; and paragraphs (a) and (g) are revised to read as follows: Sec. 641.24 Bag and possession limits. (a) Applicability. (1) Bag limits apply to a person-- (i) Who fishes from a fixed structure in the EEZ; or (ii) Aboard a vessel that fishes in the EEZ, or aboard a fishing vessel that possesses reef fish in the EEZ, (A) Without a permit specified in Sec. 641.4 on board, (B) With trawl gear or entangling net gear on board, (C) With a longline or buoy gear on board when such vessel is fishing or has fished on its present trip in the longline and buoy gear restricted area specified in Sec. 641.23(b), (D) That is operating as a charter vessel or headboat, or (E) For a species for which the quota specified in Sec. 641.25 has been reached and closure has been effected. (2) For the purpose of paragraph (a)(1)(ii)(B) of this section, a vessel is considered to have trawl gear on board when trawl doors and a net are on board. Removal from the vessel of all trawl doors or all nets constitutes removal of trawl gear. (3) For the purpose of paragraph (a)(2)(ii)(C) of this section, a vessel is considered to have a longline on board when a power-operated longline hauler, a cable of diameter and length suitable for use in the longline fishery, and gangions are on board. Removal of any one of these three elements, in its entirety, constitutes removal of a longline. * * * * * (g) Sale. A reef fish possessed under the bag limits specified in paragraph (b) of this section may not be purchased, bartered, traded, or sold, or attempted to be purchased, bartered, traded, or sold. Sec. 641.27 [Amended] 12. In Sec. 641.27, in paragraph (a), the reference to ``641.24(a)(2)(ii)'' is revised to read ``641.24(a)(1)(ii)(B)''. 13. Section 641.28 is revised to read as follows: Sec. 641.28 Adjustment of management measures. In accordance with the procedures and limitations of the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico, the Regional Director may-- (a) Establish or modify for species or species groups in the reef fish fishery the following: target dates for rebuilding overfished species, total allowable catch, bag limits, size limits, vessel trip limits, closed seasons or areas, gear restrictions, and quotas; and (b) Establish or modify special management zones and the gear restrictions applicable in each. Appendix A to Part 641--[Amended] 14. In Appendix A to part 641, Figures 2, 4, Seaward Limits of the Stressed Area, and 5 are removed; Figure 4, Examples of mesh sizes meeting the measurement criteria, is redesignated as Figure 2; and new Figures 3 through 6 are added to read as follows: BILLING CODE 3510-22-M![]()
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TR07JA94.005 [FR Doc. 94-118 Filed 1-6-94; 8:45 am] BILLING CODE 3510-22-C