[Federal Register Volume 59, Number 147 (Tuesday, August 2, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-18683] [[Page Unknown]] [Federal Register: August 2, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 204 and 641 [Docket No. 940536-4202; I.D. 041994B] RIN 0648-AG28 Reef Fish Fishery of the Gulf of Mexico AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule and notice of OMB control number. ----------------------------------------------------------------------- SUMMARY: NMFS issues this final rule to implement Amendment 9 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). Amendment 9 extends the current reef fish permit moratorium from its scheduled expiration on May 8, 1995, through as late as December 31, 1995. For the red snapper segment of the reef fish fishery, Amendment 9 authorizes the collection of commercial landings data for the years 1990 through 1992 and the collection of information to identify certain participants. It also extends the red snapper endorsement system and its associated trip and landing limits from their scheduled expiration on December 31, 1994, through as late as December 31, 1995. The intended effects of this rule are to collect information needed to evaluate red snapper effort management alternatives, to identify individuals who may qualify for initial participation in a red snapper effort management regime, and to continue interim management measures until the Gulf of Mexico Fishery Management Council (Council) has an opportunity to implement longer- term measures. This rule also informs the public of the approval by the Office of Management and Budget (OMB) of two new collection-of- information requirements contained in this rule and publishes the OMB control number for those collections. EFFECTIVE DATE: July 27, 1994, except that the amendment to Sec. 204.1(b) and Secs. 641.7(ee) and 641.10 are effective July 27, 1994, through October 31, 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, which was prepared by the Council, and is implemented through regulations at 50 CFR part 641 under the authority of the Magnuson Fishery Conservation and Management Act (Magnuson Act). The rationale for the measures in Amendment 9 and for the additional changes to the regulations proposed by NMFS was included in the proposed rule (59 FR 27258, May 26, 1994) and is not repeated here. Comments and Responses Comments on Amendment 9 and the proposed rule were received from three individuals. Two of the commenters objected to Amendment 9 and the proposed rule and the third supported them. Specific comments and responses follow. Comment: One person stated that the red snapper endorsement and trip limit provisions and the reef fish permit moratorium are not cost effective and should not be extended. The commenter's objections are based on the contention that a red snapper individual transferable quota (ITQ) system will not be implemented. The commenter also stated that the trip limit provisions and moratorium are based on erroneous and unverifiable data indicating overfishing of red snapper. Response: The reef fish permit moratorium was implemented on May 8, 1992, for three years, to prevent continued speculative entry into the fishery while the Council considers other reef fish effort management alternatives, including an ITQ system. The red snapper endorsement and trip limit provisions, first established by emergency action, were continued through 1994 under Amendment 6 to prevent the occurrence of an extremely short season and a ``derby'' fishery as occurred in 1992. The Council has not yet determined if an ITQ system should be implemented. The proposed voluntary landings data collection was suggested by vessel owners, operators whose earned income qualified for the vessel permit, and historical captains who were interested in learning of their possible preliminary shares for planning purposes. This information will help fishermen determine their most likely level of participation in an ITQ system, if adopted for the fishery. The Council, upon receipt of the data collected and analyzed under Amendment 9 and after receipt of public comments from affected parties, will decide whether to proceed with an ITQ or other effort management system and the current target date for implementation of January 1, 1996. The conditions in the fishery that led to implementation of the permit moratorium and the red snapper endorsement system will remain until a more comprehensive program is in place to limit fishing effort in the red snapper fishery. The Council anticipates that the reef fish fishery, particularly for red snapper, would be unnecessarily disrupted if the moratorium and red snapper endorsement provisions expire before implementation of an effort management system. The Council also recognized that such provisions should not be continued indefinitely. Accordingly, the Council determined that the permit moratorium and red snapper endorsement system should be extended through December 31, 1995, or until such an effort management system can be implemented, if before that date. Concerning the validity of the scientific data that indicates that red snapper are overfished, all such data undergo extensive scientific review and verification prior to NMFS's assessment of the status of the resource. The best available information continues to indicate that red snapper are overfished. Comment: The first commenter also objected to the proposed data collection as duplicative and wasteful. The commenter believes that: (1) NMFS already has obtained landings data as part of the red snapper endorsement process, and (2) the requested submittal would allow fraudulent landings records to be used to increase a person's share if an ITQ system is implemented. Response: Applicants for a red snapper endorsement on their reef fish vessel permits submitted data only to document the specified landing threshold of 5,000 pounds in any 2 of 3 qualifying years. In contrast, the data collection proposed under Amendment 9 covers all red snapper landings information for the period when data are readily available (1990-1992). This collection will provide the Council with a complete data base upon which to establish any effort management system; because this collection covers the full three years for which good data exists, it will avoid the need for additional collections. Concerning fraudulent reporting, the data collection provisions are designed to minimize that possibility. Dealer records and trip receipts must definitively show the species known as red snapper and the vessel's name, official number, or other reference that provides a way of clearly identifying the vessel. Dealer records must contain a sworn affidavit by the dealer confirming the accuracy and authenticity of the records, under penalty of law. Accordingly, NMFS disagrees with the comment and supports collection of data under these safeguards. Comment: The first commenter also objected to the proposed submittal of data by persons who believe they are historical captains. The commenter characterized those persons as employees who do not share in the losses sustained by the vessel owner and therefore should not be entitled to participate in an ITQ system. Response: After review of testimony and recommendations of the Council's Ad Hoc Allocation Advisory Panel, the Council determined that historical captains should be considered for fishing privileges under a red snapper effort management system, as well as vessel owners and operators whose earned income qualified for the vessel permit. NMFS believes that collection of these data will provide the Council with the information needed to determine if those persons warrant inclusion in an effort management system as being developed under Amendment 8. However, comments on allocation to historical captains are outside of the scope of Amendment 9 and therefore are not addressed here. Comment: The second commenter objected to the share agreement time period specified in Sec. 641.10(a)(2)(i). That section specifies that a share agreement must have been in effect from at least November 6, 1989, through 1993. The commenter claimed that the Council intended that a historical captain fish solely under a share agreement only through 1992, and that the final rule should be revised accordingly. Response: NMFS has reviewed the administrative record in regard to the referenced share agreement criterion, and concluded that the Council intended that historical captains must document a share agreement in effect up to the present time. At its March 1994 meeting, the Council specifically rejected an alternative that would have required share agreements only in 1990, 1991, and 1992. Since the final rule will be implemented in mid-1994, 1993 is the most recent calendar year with readily available records for a full year. NMFS therefore disagrees with the commenter and supports the time period for share agreements, as specified in Amendment 9 and the rule. Comment: The second commenter also suggested that Sec. 641.10(a)(2) include in the criteria to qualify as a historical captain the requirement that a person must have landed red snapper at least once prior to November 7, 1989. Response: Section 641.10(d)(iv) requires an applicant for historical captain status to submit documentation of a landing of red snapper prior to November 7, 1989. NMFS agrees that, for consistency, the requirement for such a landing should also be included in the criteria for historical captain status, and it is added in this final rule at Sec. 641.10(a)(2)(iv). Comment: The second commenter also objected to the use of the word ``lease'' in one of the criteria for historical captain status, primarily because of the present use of that term in the fishing industry. Response: NMFS agrees with the commenter and has removed the phrase containing the word ``lease'' from Sec. 641.10(a)(2)(i). Comment: The second commenter also objected to the statement in Sec. 641.10(a)(2)(i) that the share agreement must have provided for the operator to be responsible for hiring the crew, ``who were paid from his or her share.'' The commenter suggested replacement text to reflect the standard practice in the fishery for the ``buyer'' to write the checks to the crew--after the captain determines shares and payment to the crew. Response: Neither the Council nor NMFS intended to establish as a criterion for status as a historical captain that such person must have written paychecks to his or her crew. The intent was that the share agreement provide for proceeds to be divided between the owner and the historical captain. Crew shares or payments would not be contained in such share agreement. Rather, the historical captain would determine payments to the crew, such payments coming from the share under the control of the historical captain--without regard to who wrote the checks. For clarity, the above quoted language is revised to read, ``who were paid from the share under his or her control.'' Comment: A third commenter provided various comments in support of Amendment 9, noting the need to continue the effectiveness of the reef fish permit moratorium and to then establish an ITQ system. Response: NMFS agrees with this comment in support of Amendment 9. However, remarks on an allocation system such as an ITQ system or other effort management option are outside the scope of Amendment 9 and are not included here. Approval of Amendment 9 On July 20, 1994, the Director, Southeast Region, NMFS (Regional Director), approved Amendment 9. Changes From the Proposed Rule In Sec. 641.2, the address in the definition of ``Regional Director'' is corrected. As noted above under Comments and Responses, Sec. 641.10(a)(2)(i) is revised and Sec. 641.10(a)(2)(iv) is added. An additional change is made to Sec. 641.10(a)(2)(i) to clarify that a historical captain may have fished under more than one share agreement during the required period. A new Sec. 641.10(b)(3) is added to clarify the procedures whereby owners/operators will receive printouts of existing NMFS data on landings of red snapper during 1990 through 1992. The provisions for owners/operators to submit records of landings they believe were omitted from NMFS data are moved to Sec. 641.10(c)(1). Classification This final rule has been determined to be not significant for purposes of E.O. 12866. The General Counsel of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule would not have a significant economic impact on a substantial number of small entities. The reasons were published in the preamble to the proposed rule (59 FR 27258, May 26, 1994). As a result, a regulatory flexibility analysis was not prepared. This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act--specifically, information on landings of red snapper and documentation of status as a historical captain in the red snapper fishery. These collections of information have been approved by OMB under OMB control number 0648-0281. The public reporting burdens for these collections of information are estimated to average 2 and 5 hours per response, respectively, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collections of information. Send comments regarding these burden estimates or any other aspect of the collections of information, including suggestions for reducing the burdens, to Edward E. Burgess, NMFS, 9721 Executive Center Drive, St. Petersburg, FL 33702 and to the Office of Information and Regulatory Affairs, OMB, Washington, DC 20503 (Attention: NOAA Desk Officer). The data to be collected under this final rule are needed by fishermen and the Council to evaluate the effects of potential effort management systems for the red snapper segment of the reef fish fishery. That segment is managed under measures that expire December 31, 1995. To provide ample time to collect the data, present it to the fishermen and the Council, evaluate its effects, and develop, approve, and implement additional management measures prior to December 31, 1995, it is necessary that the data collection under this rule commence as soon as possible. To that end, information regarding the proposed data collection has been broadly disseminated to the fishing community prior to this final rule. The other measures in this final rule are extensions of effectiveness or clarifications of measures that are currently in effect and, thus, do not affect current fishing practices. Accordingly, the Assistant Administrator for Fisheries, NOAA, finds for good cause under section 553(d)(3) of the Administrative Procedure Act that the effectiveness of this final rule should not be delayed. List of Subjects 50 CFR Part 204 Reporting and recordkeeping requirements. 50 CFR Part 641 Fisheries, Fishing, Reporting and recordkeeping requirements. Dated: July 27, 1994. Gary Matlock, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR parts 204 and 641 are amended as follows: PART 204--OMB CONTROL NUMBERS FOR NOAA INFORMATION COLLECTION REQUIREMENTS 1. The authority citation for part 204 continues to read as follows: Authority: Paperwork Reduction Act of 1980, 44 U.S.C. 3501-3520 (1982). 2. Effective from July 27, 1994, through October 31, 1994, in Sec. 204.1(b), the table is amended by adding in the left column, in numerical order, ``Sec. 641.10 (c) and (d)'', and in the right column, in corresponding position, the control number ``-0281''. PART 641--REEF FISH FISHERY OF THE GULF OF MEXICO 3. The authority citation for part 641 continues to read as follows: Authority: 16 U.S.C. 1801 et seq. 4. In Sec. 641.2, the definition of ``Regional Director'' is revised to read as follows: Sec. 641.2 Definitions. * * * * * Regional Director means the Director, Southeast Region, NMFS, 9721 Executive Center Drive, St. Petersburg, FL 33702, telephone 813-893- 3141; or a designee. * * * * * 5. In Sec. 641.4, paragraph (m) introductory text, paragraph (m)(4), paragraph (o) introductory text, and paragraphs (p)(4) and (p)(5) are revised, and introductory text for paragraph (n) is added to read as follows: Sec. 641.4 Permits and fees. * * * * * (m) Moratorium on permits. This paragraph (m) is effective through December 31, 1995. * * * * * (4) A permit that is not renewed or that is revoked will not be reissued. A permit is considered to be not renewed when an application for renewal is not received by the Regional Director within 1 year of the expiration date of the permit. (n) Red snapper endorsement. This paragraph (n) is effective through December 31, 1995. * * * * * (o) Condition of a permit. Effective through December 31, 1995, as a condition of a reef fish permit issued under this section, without regard to where red snapper are harvested or possessed, a permitted vessel-- * * * * * (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. In the event of such transfer of a fish trap endorsement, the new owner of the vessel may renew the endorsement without regard to the requirement of paragraph (p)(1) of this section regarding a record of landing of reef fish from fish traps. (5) A fish trap endorsement that is not renewed or that is revoked will not be reissued. A fish trap endorsement is considered to be not renewed when an application for renewal is not received by the Regional Director within one year of the expiration date of the permit. 6. In Sec. 641.7, effective from July 27, 1994, through October 31, 1994, a new paragraph (ee) is added to read as follows: Sec. 641.7 Prohibitions. * * * * * (ee) Falsify information submitted in accordance with Sec. 641.10. 7. In subpart A, effective from July 27, 1994, through October 31, 1994, a new Sec. 641.10 is added to read as follows: Sec. 641.10 Red snapper data collection. (a) General. (1) To evaluate red snapper effort management alternatives, including individual transferable quota (ITQ) systems and license limitations, it is necessary to obtain commercial red snapper landings data for the years 1990 through 1992. To identify individuals who may qualify for initial participation in a red snapper effort management regime, it is necessary to identify certain participants in the red snapper fishery, specifically, operators of vessels who were the earned income qualifiers for the vessels' reef fish permits and those who are ``historical captains.'' In the latter case, determination of a historical captain's share agreement with the vessel's owner is also required. (2) For the purpose of the red snapper effort limitation alternatives, a historical captain means an operator who-- (i) From November 6, 1989, through 1993, fished solely under verbal or written share agreements with an owner, such agreements provided for the operator to be responsible for hiring the crew, who were paid from the share under his or her control; (ii) Landed from that vessel at least 5,000 lb (2,268 kg) of red snapper per year in 2 of the 3 years 1990, 1991, and 1992; (iii) Derived more than 50 percent of his or her earned income from commercial fishing, that is, sale of the catch, in each of the years 1989 through 1993; and (iv) Landed red snapper prior to November 7, 1989. (3) The data collection described in this section will be the only collection for the effort management alternatives currently being considered by the Council. Accordingly, failure to submit requested data may result in failure to be included among the initial participants in the red snapper fishery under an effort management system and/or failure to obtain the full initial share of red snapper to which a person may be entitled under an ITQ regime. (b) Existing data. (1) NMFS has records of all red snapper landings reported by vessel logbook forms submitted pursuant to Sec. 641.5 (a) or (b) and has access to records of red snapper landings reported under Florida's trip ticket system. NMFS also has records of the earned income qualifier for each vessel permit issued for reef fish. Data duplicating these records are not needed. (2) Landings of red snapper reported by vessel logbook forms and received by the Science and Research Director prior to September 16, 1992, are conclusive as to red snapper landed during the months that such logbook forms were required of, or voluntarily submitted by, a vessel--landings data from other sources will not be considered for such months. In the absence of landings data from such logbook forms, landings of red snapper reported under Florida's trip ticket system and received by the State prior to September 16, 1992, are conclusive as to landings in Florida--landings data from other sources will not be considered for landings in Florida. (3) On or about August 1, 1994, vessel owners, and operators whose earned income was used to qualify for a vessel permit, will be mailed printouts of their logbook/trip ticket records of landings of red snapper during 1990 through 1992 and forms for the reporting of additional landings. An owner, or such operator, who had such landings and who does not receive a printout by August 8, 1994, must contact the Regulations and Permits Branch, Southeast Region, NMFS, telephone (813) 893-3722, for such printout and forms. (c) Additional landings data. (1) An owner or operator who wishes to be considered for initial participation in the red snapper fishery under an effort management system may submit documentation of red snapper landings not covered by vessel logbook forms or the Florida trip ticket system or documentation of landings that he or she believes were erroneously omitted from the logbook/trip ticket records. (i) Such documentation may consist of copies of trip receipts that show dates and amounts of landings of red snapper. Trip receipts must definitively show the species known as red snapper and the vessel's name, official number, or other reference that provides a way of clearly identifying the vessel. (ii) Such documentation may also consist of dealer records that show dates and amounts of landings of red snapper. As with trip receipts, dealer records must definitively show the species known as red snapper and the vessel's name, official number, or other reference that provides a way of clearly identifying the vessel. Dealer records must contain a sworn affidavit by the dealer confirming the accuracy and authenticity of the records. A sworn affidavit is an official written statement wherein the individual signing the affidavit affirms that the information presented is accurate and can be substantiated, under penalty of law. (iii) Documentation by a combination of trip receipts and dealer records is acceptable, but duplicate records for the same landings are not acceptable. (2) Red snapper landings data will not be accepted-- (i) For a period during which the harvesting vessel did not have a permit, provided a permit was required during such period. Permits were not required from January 1 through April 22, 1990, and from January 1 through 31, 1992. (ii) For a period during which the commercial red snapper fishery in the EEZ was closed. The commercial red snapper fishery was closed in the EEZ from August 24 through December 31, 1991, from February 22 through April 2, 1992, and from May 15 through December 31, 1992. (3) Additional landings data submitted under this paragraph (c) must be attached to a Red Snapper Landings Data form, which is available from the Regional Director, and must be postmarked not later than September 30, 1994. (d) Historical captains. (1) An operator who wishes to be considered for status as a historical captain in the red snapper fishery under an effort management system may submit documentation of such status by providing the following: (i) A Historical Captain Status form, available from the Regional Director, which requests information necessary to determine such status and information to establish the share agreement of a historical captain with the vessel's owner; (ii) A Red Snapper Landings Data form and accompanying additional landings data pursuant to paragraph (c) of this section, if such form and data have not been submitted by a vessel owner; (iii) Copies of forms and schedules from the applicant's income tax returns for the years 1989 through 1993 that show total earned income and that part of earned income derived from commercial fishing, that is, sale of the catch (generally, pages 1 and 2 of Form 1040, W-2's, and Schedule C); and (iv) Documentation of a landing of red snapper prior to November 7, 1989. (2) Forms and information submitted under paragraph (d)(1) of this section must be postmarked not later than September 30, 1994. (e) Verification. Documentation of red snapper landings, documentation of status as a historical captain, and other information submitted under this section are subject to verification by comparison with state, Federal, and other records and information. Submission of false documentation or information may disqualify a person from initial participation under a red snapper effort management system. 8. In Sec. 641.23, paragraphs (b)(1) introductory text and (d)(2) introductory text are revised to read as follows: Sec. 641.23 Area limitations. * * * * * (b) * * * (1) Longline and buoy gear may not be used to fish for reef fish in the longline and buoy gear restricted area. For the purpose of this paragraph (b), ``for reef fish'' means possessing or landing reef fish-- * * * * * (d) * * * (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 fewer hooks per line and spearfishing gear. For the purpose of this paragraph (d), ``for reef fish'' means possessing reef fish aboard or landing reef fish from-- * * * * * [FR Doc. 94-18683 Filed 7-27-94; 3:53 pm] BILLING CODE 3510-22-P