[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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