[Federal Register Volume 59, Number 29 (Friday, February 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3176]
[[Page Unknown]]
[Federal Register: February 11, 1994]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 641
[Docket No. 931070-4010; ID 100493A]
RIN 0648-AF84
Reef Fish Fishery of the Gulf of Mexico
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement Amendment 7 to the
Fishery Management Plan for the Reef Fish Resources of the Gulf of
Mexico (FMP). This rule requires dealers who purchase from fishing
vessels reef fish caught in the exclusive economic zone (EEZ) to obtain
Federal permits and maintain records of such purchases; allows the
transfer of a fish trap endorsement with the transfer of the vessel's
reef fish permit to an immediate family member; and allows the transfer
or revision of a red snapper endorsement on a reef fish vessel permit
upon the disability or death of a vessel owner or, in certain
circumstances, an operator. The intended effects of this rule are to
enhance enforceability of the regulations, improve quota monitoring of
reef fish species, allow families that have historically fished in the
Gulf of Mexico with fish traps to continue such fishing, and alleviate
hardships caused by disability or death of owners/operators no longer
able to use red snapper endorsements.
EFFECTIVE DATE: February 7, 1994; except that Sec. 641.5(d) is
effective on March 14, 1994 and Sec. 641.7(bb) is effective April 1,
1994.
FOR FURTHER INFORMATION CONTACT:
Robert Sadler, 813-893-3161.
SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico
is managed under the FMP. The FMP was prepared by the Gulf of Mexico
Fishery Management Council (Council) and is implemented through
regulations at 50 CFR part 641 under the authority of the Magnuson
Fishery Conservation and Management Act (Magnuson Act).
Detailed descriptions, backgrounds, and rationales for the
management measures in Amendment 7 and the additional measures proposed
by NMFS were included in the proposed rule (58 FR 57771, October 27,
1993) and are not repeated here.
Comments and Responses
Three comments were received from the public. In addition, a
minority report was submitted by three Council members. Comments and
responses are as follows.
Comment: The Council minority report objected to the requirements
for dealer permits and recordkeeping and the prohibition on sale of
reef fish except between permitted dealers and permitted fishing
vessels. According to the minority report, the final Amendment 7
measures unduly restrict free enterprise by requiring that federally
permitted dealers purchase reef fish only from federally permitted
fishing vessels (when purchasing from a vessel) and that permitted
vessels sell reef fish only to permitted dealers. The report claimed
that these measures will have the following specific effects: (1) That
preventing federally permitted dealers from purchasing reef fish caught
in state waters from non-federally permitted vessels will cause severe
economic impacts on dealers no longer able to buy reef fish caught in
state waters; may allow permitted dealers to set the ex-vessel price
for reef fish; and will preclude vessels from selling their product at
the highest possible price; (2) duplicates reporting requirements by
the states; and (3) prevents dealers from purchasing imported reef fish
from other nations or from dealers in other areas of the Gulf of Mexico
or South Atlantic.
Response: The draft Amendment 7 document presented by the Council
at public hearings contained a measure requiring that when federally
permitted reef fish dealers purchase reef fish from fishing vessels,
such purchases be made only from federally permitted vessels; however,
the amendment did not adequately discuss a complementary measure
requiring permitted reef fish vessels to sell reef fish only to
permitted dealers (subject measure). At the July 1993 Council meeting,
based on information available at that time, the Council voted to
include in the final Amendment 7 the subject measure requiring
permitted reef fish vessels to sell reef fish only to permitted
dealers. Subsequently, the Council submitted the amendment for
Secretarial review and approval. Based on the public comments received
on the amendment and the proposed rule during Secretarial review, and
on a review by NOAA General Counsel of the history of the development
of the subject measure, NMFS determined that the subject measure did
not comply with the public hearing requirements of section 302(h) of
the Magnuson Act. For this reason, NMFS has disapproved the requirement
that permitted vessels may sell reef fish only to permitted dealers.
The FMP measure was approved requiring that if federally permitted
dealers purchase reef fish from fishing vessels, such purchases be made
solely from federally permitted vessels. However, after considering
this approved measure as it stands alone without the complementary
measure requiring permitted reef fish vessels to sell only to permitted
dealers, the Secretary has decided to defer its implementation pending
(1) the Council's reconsideration of the disapproved complementary
measure, and (2) review of the potential full range of economic and
social impacts of this measure on fishermen, particularly on non-
federally permitted reef fish vessels lawfully fishing exclusively in
state waters.
In response to the Council's minority report claims regarding the
economic effects of the measures restricting buying and selling of reef
fish between dealers and vessels (report item 1), none of the approved
and implemented measures of Amendment 7 are expected to have these
alleged effects. Also, under Amendment 7, it is expected that dealers
who wish to continue purchasing reef fish harvested in Gulf Federal
waters will obtain a NMFS permit, while other dealers will not. NMFS
recognizes that this may cause some shifts in the availability of reef
fish to permitted dealers. However, these market changes, in
themselves, should not significantly affect the reef fish price
structure or prevent vessels from obtaining fair prices for their
catch.
In response to the minority report statement that mandatory
recordkeeping duplicates reporting requirements by the states (report
item 2), not all the Gulf states require dealer reports. As a result,
the provision is needed to provide landings information from all
dealers (Gulf-wide). For those states with similar reporting
requirements, NMFS recognizes that some of the data to be furnished
under Amendment 7 may track that currently being reported. Nonetheless,
despite the possibility of duplication, the Federal dealer reporting
system established under Amendment 7 will provide significant benefits
by facilitating verification of the catches reported by vessels on the
NMFS vessel logbook system. Such verification, in turn, will allow more
accurate monitoring of the quotas and thereby enhance the reef fish
management program.
In response to the minority report statement that the measures will
prevent permitted dealers from purchasing reef fish from other nations
or from dealers in areas outside the Gulf of Mexico (report item 3),
none of the approved and implemented measures of Amendment 7 will
affect dealer-to-dealer commercial transactions. As an additional
point, management measures approved and implemented under FMP
Amendments 5 and 7 will not prevent permitted Gulf of Mexico reef fish
dealers from buying reef fish harvested from waters of the South
Atlantic and not possessed in the EEZ of the Gulf of Mexico. Finally,
and as noted above, implementation of the Amendment 7 measure
restricting permitted dealers to buying reef fish only from permitted
vessels has been deferred.
Comment: One of the individual commenters also claimed that: (1)
Negative comments on draft Amendment 7 at the Council public hearings
were not reflected in the minutes made available at the July 1993
Council meeting, and therefore were not considered in the deliberations
leading to submittal of Amendment 7 for Secretarial review; (2) the
public was not adequately notified prior to Council hearings that
Amendment 7 includes a proposal that federally permitted vessels sell
only to federally permitted dealers; (3) Secretarial action on
Amendment 7 should be delayed pending outcome of an ongoing lawsuit
regarding the criteria for obtaining red snapper endorsements on reef
fish permits; and (4) the options to control access to the red snapper
fishery that were presented at public hearings on draft Amendment 7
should not be transferred to a subsequent amendment.
Response: The following four responses address each corresponding
item in the order listed above:
(1) The summary minutes presented to the Council at its July 1993
meeting reflect all public comments received by the Council on draft
Amendment 7. Those minutes include remarks made by the commenter at
public hearings in Galveston and Port Aransas, Texas, held on the draft
amendment. NMFS believes that the administrative record before the
Council when it made final decisions regarding the contents of
Amendment 7 included all public comments received by the Council,
including all objections to specific management measures.
(2) NMFS concurs with the commenter that there was inadequate
public review of the requirement that permitted vessels sell only to
permitted dealers and has disapproved this measure in Amendment 7 for
the reasons previously stated.
(3) The measures contained in Amendment 7 include dealer permitting
and recordkeeping, transfer of fish trap endorsements between family
members, and transfer of red snapper endorsements upon death or
disability. These management measures are not at issue in the lawsuit
referred to by the commenter.
(4) Draft Amendment 7 previously included a wide variety of
management measures, most notably a series of options to limit access
to the red snapper fishery. Early public review of the draft document
indicated that (a) additional time was needed for the Council to
properly develop the limited access and license limitation options, and
(b) timely action was needed on other changes to the reef fish
management program as are contained in the final Amendment 7 submitted
by the Council. As provided under the procedures of the Magnuson Act,
the proposals for limited access will undergo further public review and
comment and may be submitted by the Council for Secretarial review
under a future FMP amendment. In the interim, the other measures of the
final Amendment 7 were appropriately submitted by the Council for
Secretarial review, approval, and implementation (with the exception of
the disapproved measure restricting permitted vessels from selling to
only permitted dealers).
Comment: An owner of a seafood house objected to the requirement
for dealer permits and mandatory recordkeeping as burdensome and
unnecessarily duplicative of other similar reporting systems.
Response: NMFS and the Council recognize that the requirement for
dealer permits may constitute an inconvenience. However, any
inconvenience should be outweighed by the substantive benefits expected
from dealer permitting, namely, improved quota monitoring by providing
a census of reef fish dealers as well as enhanced enforceability of the
vessel trip limits.
As described in the proposed rule, the maintenance of dealer
records of reef fish purchases would formalize what is considered to be
the standard industry practice of maintaining such records. For dealers
currently conforming to that standard, the mandatory recordkeeping
provision would not be an additional requirement. Availability of the
dealers' records will provide a means of verification of information
submitted in fishing vessel logbooks.
Information available to the Council indicates that these benefits
are not uniformly attained from the licensing and reporting systems in
effect in some of the Gulf states. The additional burdens of dealer
permits and recordkeeping are considered to be minimal. Accordingly,
NMFS concurs with the requirement of Amendment 7 for dealer permits and
recordkeeping.
Comment: One individual offered general support for Amendment 7,
and also expressed his views on the earlier proposed 1-year
experimental adjustment to the longline/buoy gear area boundary in the
EEZ off Florida.
Response: For the reasons stated above, NMFS concurs with the
individual in his support for Amendment 7, with the exception of the
disapproved provision. However, the experimental longline boundary
proposal, recently withdrawn by the Council, is outside the scope of
Amendment 7 and comments on this topic are not addressed here.
Changes From the Proposed Rule
The proposed rule at Sec. 641.5(d)(1) would have required a dealer
to maintain a record of reef fish ``harvested from the Gulf of Mexico''
that the dealer receives. NMFS considers it an unnecessary burden on
dealers to require that they ascertain where the fish were caught.
Accordingly, this final rule removes the quoted language.
For the reasons discussed above, the proposed requirements that
reef fish harvested aboard permitted vessels be sold only to permitted
dealers and that permitted dealers purchase reef fish only from
permitted vessels, contained in Sec. 641.7(cc) and (dd) and Sec. 641.28
of the proposed rule, are deleted.
Since the proposed rule was published, NMFS has revised the reef
fish regulations through a framework measure (58 FR 68325, December 27,
1993) and implementation of Amendment 5 to the FMP (59 FR 966, January
7, 1994). Accordingly, some references and paragraphs in this final
rule differ from those in the proposed rule.
Partial Disapproval of Amendment 7
On January 6, 1994, the Secretary of Commerce partially disapproved
Amendment 7. As discussed above, the provision that required permitted
vessels to sell harvested reef fish only to permitted dealers was
disapproved.
Effective Dates
A number of management measures implemented by this final rule
depend, for application and enforcement, on the presence or absence of
a dealer permit. To ensure timely implementation of these measures, it
is necessary to make the permitting procedural requirements effective
as soon as practicable. New Sec. 641.4 (a)(2) and (c) contain these
procedural requirements and revised Sec. 641.7(a) contains the
prohibition applicable to applications for dealer permits. The
redesignation of paragraphs and corrections of references in
Sec. 641.4, additional changes in Sec. 641.4 (b) and (d) through (i),
and changes to the prohibitions at Sec. 641.7 (b) and (c) are
housekeeping changes related to the addition of dealer permits. Because
delay in effectiveness of these measures is not in the public interest,
the Assistant Administrator for Fisheries, NOAA (Assistant
Administrator), finds that good cause exists under section 553(d)(3) of
the Administrative Procedure Act (APA) not to delay their effective
date.
This final rule allows, under specified conditions, transfers of
red snapper endorsements and fish trap endorsements that were not
previously allowed. Since Sec. 641.4(n)(3) and (p)(4) relieve
restrictions, the Assistant Administrator finds that good cause exists
under section 553(d)(1) of the APA not to delay their effective date.
However, since the provisions for fish trap endorsements are not
effective until February 7, 1994 (see 59 FR 966, January 7, 1994), and
for simplicity, the specified sections in this and the preceding
paragraph for which delayed effectiveness under the APA is waived are
effective February 7, 1994.
Changes to dealer recordkeeping and reporting requirements,
Sec. 641.5(d), are effective on March 14, 1994.
The prohibition at Sec. 641.7(bb) on purchasing from a fishing
vessel reef fish harvested from the EEZ without a dealer permit is not
effective until April 1, 1944. The delayed effective date of this
prohibition will allow sufficient time for dealers to obtain and submit
applications for permits and for NMFS to process and issue permits.
Classification
The Secretary of Commerce determined that Amendment 7 is necessary
for the conservation and management of the reef fish fishery and that
it is consistent with the national standards, other provisions of the
Magnuson Act, and other applicable law, with the exception of the
measure requiring reef fish harvested by permitted vessels to be sold
only to permitted dealers.
This rule is not subject to review under E.O. 12866.
This final rule contains two new collection-of-information
requirements subject to the Paperwork Reduction Act. The new
collections have been approved by the Office of Management and Budget
and the following OMB control numbers apply: (1) Applications for
dealer permits, 0648-0205; and (2) the requirement that dealers
maintain for at least 1 year their records of reef fish purchases from
fishing vessels, 0648-0013. The public reporting burden for the dealer
permitting collection of information is estimated to average 5 minutes
per response. The public reporting burden for the maintenance of dealer
records collection of information is estimated to average 40 minutes
per response for those few dealers who are not currently maintaining
such records. These burden estimates include the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collections of information. Send comments regarding these burden
estimates or any other aspect of the collections of information,
including suggestions for reducing the burdens, to Edward E. Burgess,
NMFS, 9450 Koger Boulevard, St. Petersburg, FL 33702 and to the Office
of Information and Regulatory Affairs, OMB, Washington, DC 20503
(Attention: NOAA Desk Officer).
List of Subjects in 50 CFR Part 641
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: February 7, 1994.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set forth in the preamble, 50 CFR part 641 is
amended as follows:
PART 641--REEF FISH FISHERY OF THE GULF OF MEXICO
1. The authority citation for part 641 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 641.4, paragraphs (a)(1) through (a)(5) are redesignated
as paragraphs (a)(1)(i) through (a)(1)(v) and paragraphs (c) through
(o) are redesignated as paragraphs (d) through (p); in newly designated
paragraph (m) introductory text, the reference to ``this paragraph
(l)'' is revised to read ``this paragraph (m)''; in newly designated
paragraph (m)(1), the reference to ``paragraphs (l)(2) and (l)(3) of
this section'' is revised to read ``paragraphs (m)(2) and (m)(3) of
this section''; in newly designated paragraphs (m)(2) and (n)(2), the
phrase ``owned by him or her'' is revised to read ``owned by the same
entity''; in newly designated paragraph (p) introductory text, the
reference to ``this paragraph (o)'' is revised to read ``this paragraph
(p)''; paragraph (b) heading and newly designated paragraphs (d)
through (i) and (p)(4) are revised; and new paragraphs (a)(1) heading,
(a)(2), (c), and (n)(3) are added to read as follows:
Sec. 641.4 Permits and fees.
(a) * * *
(1) Annual vessel permits.
* * * * *
(2) Annual dealer permits. A dealer who receives from a fishing
vessel reef fish harvested from the EEZ to the Gulf of Mexico must
obtain an annual dealer permit. To be eligible for such permit, an
applicant must have a valid state wholesaler's license in the state(s)
where the dealer operates, if required by such state(s), and must have
a physical facility at a fixed location in such state(s).
(b) Application for an annual vessel permit.
* * * * *
(c) Application for an annual dealer permit.
(1) An application for a dealer permit must be submitted and signed
by the dealer or an officer of a corporation acting as a dealer. The
application must be submitted to the Regional Director at least 30 days
prior to the date on which the applicant desires to have the permit
made effective.
(2) A permit applicant must provide the following information:
(i) A copy of each state wholesaler's license held by the dealer.
(ii) Business name; mailing address, including zip code, of the
principal office of the business; telephone number; employer
identification number, if one has been assigned by the Internal Revenue
Service; and the date the business was formed.
(iii) The address of each physical facility at a fixed location
where the business receives fish.
(iv) Name, official capacity in the business, mailing address
including zip code, telephone number, social security number, and date
of birth of the applicant.
(v) Any other information requested by the Regional Director that
may be necessary for the issuance or administration of the permit.
(d) Change in application information. The owner or operator of a
vessel with a permit or a dealer with a permit must notify the Regional
Director within 30 days after any change in the application information
specified in paragraph (b) or (c) of this section. The permit is void
if any change in the information is not reported within 30 days.
(e) Fees. A fee is charged for each permit application submitted
under paragraph (b) or (c) of this section and for each fish trap
identification tag required under Sec. 641.6(d). The amount of each fee
is calculated in accordance with the procedures of the NOAA Finance
Handbook for determining the administrative costs of each special
product or service. The fee may not exceed such costs and is specified
with each application form. The appropriate fee must accompany each
application or request for fish trap identification tags.
(f) Issuance. (1) The Regional Director will issue a permit at any
time to an applicant if the application is complete and, in the case of
an application for a vessel permit, the applicant meets the earned
income requirement specified in paragraph (b)(2)(xi) of this section.
An application is complete when all requested forms, information, and
documentation have been received and the applicant has submitted all
applicable reports specified at Sec. 641.5.
(2) Upon receipt of an incomplete application, the Regional
Director will notify the applicant of the deficiency. If the applicant
fails to correct the deficiency within 30 days of the date of the
Regional Director's letter of notification, the application will be
considered abandoned.
(g) Duration. A permit remains valid for the period specified on it
unless it is revoked, suspended, or modified pursuant to subpart D of
15 CFR part 904 or the vessel or dealership is sold.
(h) Transfer. A vessel permit or endorsement or dealer permit
issued under this section is not transferable or assignable, except as
provided under paragraph (m) of this section for a vessel permit, as
provided under paragraph (n) of this section for a red snapper
endorsement, or as provided under paragraph (p) of this section for a
fish trap endorsement. A person who acquires a vessel or dealership who
desires to conduct activities for which a permit or endorsement is
required must apply for a permit or endorsement in accordance with the
provisions of this section. The application must be accompanied by a
copy of a signed bill of sale or equivalent acquisition papers.
(i) Display. A vessel permit or endorsement issued under this
section must be carried on board the vessel and such vessel must be
identified as provided for in Sec. 641.6. A dealer permit issued under
this section must be available at the dealer's principal place of
business. In addition, a copy of the dealer's permit must accompany
each vehicle that is used to pick up from a fishing vessel reef fish
harvested from the EEZ of the Gulf of Mexico. The operator of a vessel,
a dealer, or a vehicle operator must present the permit or, in the case
of a vehicle operator, a copy of the permit for inspection upon the
request of an authorized officer.
* * * * *
(n) * * *
(3) The provisions of paragraph (n)(2) of this section
notwithstanding, special provisions apply in the event of the
disability or death of the owner of a vessel with a red snapper
endorsement or the disability or death of an operator whose presence on
board the vessel is a condition for the validity of a red snapper
endorsement.
(i) In the event that a vessel with a red snapper endorsement has a
change of ownership that is directly related to the disability or death
of the owner, the Regional Director may issue a red snapper
endorsement, temporarily or permanently, with the reef fish permit that
is issued for the vessel under the new owner. Such new owner will be
the person specified by the owner or his/her legal guardian, in the
case of a disabled owner, or by the will or executor/administrator of
the estate, in the case of a deceased owner. (Change of ownership of a
vessel with a reef fish permit upon disability or death of an owner is
considered a purchase of a permitted vessel and paragraph (m)(3) of
this section applies regarding a reef fish permit for the vessel under
the new owner.)
(ii) In the event of the disability or death of an operator whose
presence on board a permitted vessel is a condition for the validity of
a red snapper endorsement, the Regional Director may revise and reissue
an endorsement, temporarily or permanently, to the permitted vessel.
Such revised endorsement will contain the name of a substitute operator
specified by the operator or his/her legal guardian, in the case of a
disabled operator, or by the will or executor/administrator of the
estate, in the case of a deceased operator. As was the case with the
replaced endorsement, the presence of the substitute operator on board
and in charge of the vessel is a condition for the validity of the
revised endorsement. Such revised endorsement will be reissued only
with the concurrence of the vessel owner.
* * * * *
(p) * * *
(4) A fish trap endorsement is not transferable upon change of
ownership of a vessel with a fish trap endorsement, except when such
change of ownership is from one to another of the following: husband,
wife, son, daughter, brother, sister, mother, or father.
* * * * *
3. In Sec. 641.5, paragraph (d) is revised to read as follows:
Sec. 641.5 Recordkeeping and reporting.
* * * * *
(d) Dealers. A person who receives reef fish by way of purchase,
barter, trade, or sale from a fishing vessel or person that fishes for
or lands reef fish from the EEZ or adjoining state waters, must
maintain records and submit information as follows:
(1) A dealer must maintain at his/her principal place of business a
record of reef fish that he/she receives. The record must contain the
name of each fishing vessel from which reef fish were received and the
date, species, and quantity of each receipt. A dealer must retain such
record for at least 1 year after receipt date and must provide such
record for inspection upon the request of an authorized officer or the
Science and Research Director.
(2) When requested by the Science and Research Director, a dealer
must provide the following information from his/her record of reef fish
received: Total poundage of each species received during the requested
period, average monthly price paid for each species by market size, and
proportion of total poundage landed by each gear type.
(3) The operator of a car or truck that is used to pick up from a
fishing vessel reef fish harvested from the Gulf of Mexico must
maintain a record containing the name of each fishing vessel from which
reef fish on the car or truck have been received. The vehicle operator
must provide such record for inspection upon the request of an
authorized officer.
* * * * *
4. In Sec. 641.7, in paragraph (y), the reference to
``Sec. 641.4(a)(4) and (o)(2)'' is revised to read
``Sec. 641.4(a)(1)(iv) and (p)(2)''; paragraphs (a), (b), and (c) are
revised; paragraphs (bb) and (cc) are designated as paragraphs (cc) and
(dd); and new paragraph (bb) is added to read as follows:
Sec. 641.7 Prohibitions.
* * * * *
(a) Falsify information specified in Sec. 641.4 (b) or (c) on an
application for a permit, information on an application for an
endorsement on a permit, or information regarding a transfer or
revision of an endorsement on a permit.
(b) Fail to display a permit or endorsement, as specified in
Sec. 641.4(i).
(c) Falsify or fail to maintain, submit, or provide records or
information required to be maintained, submitted, or provided, as
specified in Sec. 641.5 (b) through (h).
* * * * *
(bb) Receive from a fishing vessel, by purchase, trade, or barter,
reef fish harvested from the EEZ without a dealer permit, as specified
in Sec. 641.4(a)(2).
* * * * *
[FR Doc. 94-3176 Filed 2-7-94; 5:04 pm]
BILLING CODE 3510-22-M