[Federal Register Volume 64, Number 43 (Friday, March 5, 1999)]
[Proposed Rules]
[Pages 10613-10616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5498]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 981229328-8328-01; I.D. 120998C]
RIN 0648-AK31


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

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule, request for comments.

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SUMMARY: NMFS issues this proposed rule to implement Amendment 16A to 
the Fishery Management Plan for the Reef Fish Resources of the Gulf of 
Mexico (FMP). This proposed rule would prohibit the use of fish traps 
in the exclusive economic zone (EEZ) of the Gulf of Mexico south of 
25 deg.03' N. lat. after February 7, 2001; prohibit possession of reef 
fish exhibiting trap rash on board a vessel that does not have a valid 
fish trap endorsement; and require fish trap vessel owners or operators 
to provide trip initiation and trip termination reports and comply with 
an annual vessel/gear inspection requirement. In addition, Amendment 
16A proposes that NMFS develop a system design, protocol, and 
implementation schedule for a fish trap vessel monitoring system (VMS). 
The intended effects of this rule are to enhance enforceability of fish 
trap measures and conserve and manage the reef fish resources of the 
Gulf of Mexico.

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

ADDRESSES: Comments on the proposed rule or on the initial regulatory 
flexibility analysis (IRFA) must be sent to Robert Sadler, Southeast 
Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, 
FL 33702.
    Comments regarding the collection-of-information requirements 
contained in this rule must be sent to Edward E. Burgess, Southeast 
Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, 
FL 33702, and to the Office of Information and Regulatory Affairs, 
Office of Management and Budget (OMB), Washington, DC 20503 (Attention: 
NOAA Desk Officer).
    Requests for copies of Amendment 16A, which includes an 
environmental assessment, a regulatory impact review (RIR), and an 
IRFA, and requests for copies of a minority report submitted by two 
Council members should be sent to the Gulf of Mexico Fishery Management 
Council, Suite 1000, 3018 U.S. Highway 301 North, Tampa, FL, 33619; 
Phone: 813-228-2815; Fax: 813-225-7015.

FOR FURTHER INFORMATION CONTACT: Robert Sadler, 727-570-5305.

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico 
is managed under the FMP. The FMP was prepared by the Gulf of Mexico 
Fishery Management Council (Council) and is implemented under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

Accelerated Area Phaseout of Fish Traps

    A 10-year phaseout of the fish trap fishery ending February 7, 
2007, was implemented under Amendment 14 (62 FR 13983, March 25, 1997). 
Amendment 16A proposes a shorter phaseout period (ending February 7, 
2001) for an area in Federal waters south of Cape Sable, FL (25.05 deg. 
N. lat.) at the southernmost point of the Florida peninsula. This 
measure is based on Council concerns about increased trap fishing 
pressure, continuing fish trap violations, and ineffective fish trap 
vessel monitoring. Opponents of fish traps report user group conflicts 
and problems with excessive trap fishing pressure in an area south of 
25.05 deg. N. lat. Law enforcement agencies reported continued 
difficulties in detecting and monitoring fish trap use and requested 
additional fish trap vessel monitoring, reporting, and inspection 
requirements for the entire fish trap fishery.
    Testimony to the Council at its March 1998 meeting included 
allegations of continuing problems with fish trap gear in the Florida 
Keys area since implementation of the 10-year phaseout. Several 
commenters in favor of an accelerated fish trap phaseout stated that 
the continued use of the gear in the Gulf EEZ of the Florida Keys will 
contribute to bycatch problems, user group conflicts, and illegal trap 
use in adjacent state waters. Public testimony also indicated that 
deployment of fish traps in the Gulf EEZ adjacent to the Florida Keys 
during the 10-year period will continue to cause physical habitat 
damage to the coral reef community. Following public testimony, the 
Council proposed accelerating the phaseout, from 10 years to 4 years 
(ending February 7, 2001), in the Florida Keys. Fish trap use would be 
prohibited in the designated area after February 7, 2001.
    In the area off the Florida Keys, the accelerated phaseout will 
negatively impact those fish trap fishermen who had anticipated a 10-
year phaseout period and invested in fish trap gear or endorsements. It 
would also negatively impact fish trap fishermen in the Florida Keys by 
requiring them to travel to a point north of 25.05 deg. N. lat. to 
deploy their traps. However, the Council anticipates that an 
accelerated fish trap phaseout may reduce fishing pressure on reef fish 
in the area south of 25.05 deg. N. lat.

Proposed Restrictions on the Possession of Reef Fish

    The Council is proposing to prohibit the possession of reef fish 
exhibiting the condition of trap rash (i.e., physical damage to fish 
caused by the fish rubbing or scraping against, running into, butting, 
or biting the wire mesh used to construct wire fish traps) on vessels 
without valid fish trap endorsements. This trap rash management measure 
is based on information that some vessels that land

[[Page 10614]]

reef fish with trap rash do not have valid fish trap endorsements and 
continually deploy fish traps at sea in violation of the requirement 
that traps be returned to port at the end of each trip. Persons on 
these vessels do not possess fish traps on board longer than the time 
required to empty the traps before returning them to the water. As a 
result, law enforcement officials cannot prosecute these fishermen due 
to lack of evidence of illegal trap deployment. In response, the 
Council proposed to prohibit the possession of reef fish exhibiting the 
condition of trap rash on board any vessel, except for vessels 
possessing a valid fish trap endorsement, as this condition is prima 
facie evidence of illegal trap use. The Council rejected 
recommendations for reef fish trip limits on vessels fishing stone crab 
and spiny lobster traps, because the Council concluded that, by putting 
the burden on the fishermen to prove that they were legal fish trappers 
if they possessed reef fish with trap rash, the trap rash provision 
would be more enforceable than reef fish trip limits. NMFS fishery 
scientists conducting research at sea have detected the trap rash 
condition on reef fish remaining in illegally deployed fish traps. The 
severity of the trap rash condition increases with the time a fish 
spends in a wire trap. NMFS has reviewed this information and found no 
evidence that trap rash could result from a source other than fish trap 
use. As a result, illegal fish trap use is indicated by possession of 
reef fish with the trap rash condition aboard vessels without a fish 
trap endorsement.

Fish Trap Vessel Monitoring System (VMS)

    The Council considered an electronic VMS for fish trap vessels as a 
means to monitor regulated fish trap vessels and detect unlawful fish 
trapping activity. NMFS currently is evaluating a device that uses 
cellular telephone technology and, in addition to reporting vessel 
location, can be configured to sense various operational aspects of 
vessels in a fishery such as engine speed and operation of fishing gear 
(e.g., winches).
    The VMS costs are estimated in Amendment 16A to be relatively small 
(approximately $1,000 for equipment, plus $500 installation cost per 
vessel) in comparison to the costs of fish trap operations, including 
acquiring a fish trap endorsement. Most fish trappers who commented on 
this measure to the Council supported establishing a VMS and accepting 
the associated VMS costs, if necessary, to allow themselves to continue 
trap fishing through February 7, 2007 (the time period established 
under Amendment 14 to the FMP).
    The Council was unwilling to proceed with requiring VMS for fish 
trap vessels without knowledge of the detailed cost of the system or 
confirmation by NMFS that the system is viable. The Council has asked 
NMFS to complete its evaluation of VMS system purchase/installation 
costs and to test systems on fish trap vessels. Once this evaluation is 
complete, NMFS will present the system design, costs, and 
implementation schedule to the Council for its approval prior to 
implementation. If the Council approves the VMS at that time, NMFS will 
take the necessary steps to implement this action, if it is deemed 
appropriate.

Additional Fish Trap Vessel Inspection and Reporting Requirements

    Amendment 16A proposes a 1-month fish trap/vessel inspection period 
and a requirement for fish trappers to report trip initiation and trip 
termination times. The inspections will establish a baseline to assure 
that all fish trap gear is in compliance with fish trap construction 
and tagging requirements and that all participants are familiar with 
the Federal regulations governing their fishery.
    The proposed rule specifies that each fish trap vessel owner or 
operator will contact NMFS by telephone to schedule the inspection 
during an assigned 1-month period. On the inspection date, the owner or 
operator must make all fish trap gear with attached trap tags and buoys 
and all applicable permits available for inspection at a land-based 
site. Vessels must also be made available for inspection. Vessels may 
continue to use fish traps during the 1-month period until the 
inspection is initiated. An owner or operator may resume fishing upon 
completion of the inspection and a determination that all fish trap 
gear, permits, and vessels are in compliance. However, an owner or 
operator who fails to comply with the inspection requirements may not 
use or possess fish traps in the Gulf EEZ until the required inspection 
or reinspection has been completed and all fish trap gear, permits, and 
vessels are determined to be in compliance. (See Changes Proposed by 
NMFS.)
    The proposed rule also requires trip initiation and termination 
reports submitted by telephone, through the use of a 24-hour toll-free 
number for each fishing trip on which a fish trap will be used or 
possessed.

Council Minority Report on Amendment 16A

    A minority report signed by two Council members opposes Amendment 
16A and specifically raises concerns on the accelerated phase out of 
fish traps off the Florida Keys. The minority report contends that 
Amendment 16A is inconsistent with several Magnuson-Stevens Act 
national standards. Copies of the minority report may be obtained from 
the Council (see ADDRESSES).

Availability of and Comments on Amendment 16A

    Additional background and rationale for the measures discussed 
above are contained in Amendment 16A, the availability of which was 
announced in the Federal Register on December 18, 1998 (63 FR 70093). 
Written comments on Amendment 16A were solicited and must have been 
received by February 16, 1999, to be considered in the approval/
disapproval decision on Amendment 16A. Comments received after that 
date will not be considered in the approval/disapproval decision. All 
comments received on Amendment 16A or on this proposed rule during 
their respective comment periods will be addressed in the preamble to 
the final rule.

Changes Proposed by NMFS

    To improve compliance in the fishery, the Council proposed a 1-
month period for vessel inspections and user group education preceding 
implementation of the trip initiation and termination reporting 
requirements contained in Amendment 16A. The Council's objective is to 
establish a baseline for ensuring that all fish trap gear used in the 
Gulf of Mexico is in compliance with fish trap regulations. To achieve 
that objective, NMFS is proposing to implement the vessel inspection 
and user group education concept. However, NMFS finds that the need to 
monitor compliance in the fishery will continue and, therefore, 
proposes to continue the inspection and education period on an annual 
basis. Because NMFS proposes that the inspections occur annually, 
delaying implementation of the new reporting requirement is 
impractical. As a result, NMFS also proposes to implement the trip 
initiation and trip termination reporting requirement upon 
effectiveness of the final rule.
    Pursuant to section 311 of the Magnuson-Stevens Act, NMFS-
authorized officers possess the authority to inspect any vessel subject 
to the Magnuson-Stevens Act without notice, at any time. However, for 
consistency with the Council's proposal in

[[Page 10615]]

Amendment 16A, NMFS is proposing in this rule to provide advance notice 
for the proposed annual inspections. Notice of annual inspections 
conducted under this measure would be through the use of appointments, 
as contemplated in Amendment 16A's initial inspection.
    The amendment states that the Regional Administrator, Southeast 
Region, NMFS (RA) will publish notification of the 1-month fish trap 
inspection period in the Federal Register. NMFS proposes, in lieu of 
that requirement, that the RA provide written notification to each 
owner of a vessel that has a valid fish trap endorsement. NMFS believes 
that direct notification of owners would be more effective.
    NMFS solicits public comment on these proposed changes.

Classification

    At this time, NMFS has not determined that the amendment that this 
rule would implement is consistent with the national standards of the 
Magnuson-Stevens Act and other applicable laws. NMFS, in making that 
determination, will take into account the data, views, and comments 
received during the comment period on Amendment 16A.
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    The Council prepared an IRFA, based on the RIR, that concludes that 
Amendment 16A and this proposed rule, if adopted, would have 
significant economic impacts on a substantial number of small entities. 
A summary of the IRFA follows.
    The rule is proposed to address fish trap fishing violations in 
south Florida and to provide more effective monitoring and reporting 
for all fish trapping operations. The Magnuson-Stevens Act provides the 
legal basis for the rule, and no duplicative, overlapping, or 
conflicting Federal rules were identified.
    It was determined that 86 commercial fish trapping businesses and 
an undetermined number of spiny lobster and stone crab fishermen, all 
of which qualify as small business entities, would be affected by the 
rule. Of the 86 fish trapping businesses, 12 have home ports in the 
Keys and can expect a greater than 5-percent decrease in revenues if it 
becomes illegal to use fish traps in the specified south Florida area 
in 2 years. The action that would limit possession of Gulf reef fish 
exhibiting trap rash to those vessels with a fish trap endorsement is 
expected to reduce revenues of some stone crab and spiny lobster 
fishermen. All the revenue losses are characterized as long-term with 
no offsetting benefits to the small businesses identified. All 86 
vessels would incur additional compliance costs (annualized capital, 
operating and reporting costs).
    Assuming that a VMS system is imposed in 1999 through a subsequent 
rulemaking, the 86 firms would incur a capital cost for installation 
estimated at $1500 per vessel plus undetermined annual costs of 
maintenance and cellular phone reporting of VMS data. The 86 firms 
would incur costs of reporting before and after each trip before a VMS 
system was put into effect and would also incur costs associated with 
having all gear inspected. The IRFA made no determination regarding the 
number of small business entities that could be forced to cease 
business operations if the proposals go into effect.
    Alternatives are identified for the four proposed actions. In all 
cases, the status quo provides the least adverse impact on small 
entities, but the status quo was rejected as being incapable of 
addressing the issue of fish trap violations. The other rejected 
alternative to a 2-year phaseout of trapping in south Florida was a 2-
year phaseout of all fish trapping; it would have a much greater 
negative impact. The VMS preferred alternative was for a design study 
of a VMS system to be followed by implementation under a separate 
rulemaking. One alternative recommended implementing the VMS system 
directly. This alternative was rejected because of the implied costs 
and the need for the design to be completed.
    The proposed action regarding trip limits for vessels with reef 
fish permits that are fishing spiny lobster and stone crab maintains 
the status quo of no trip limits for possession of reef fish, but it 
requires vessels to have a fish trap endorsement if there are fish 
exhibiting trap rash on board. Other trip limit alternatives would 
institute various trip limits. However, they were rejected because the 
Council concluded that the trap rash provision would resolve 
enforcement problems better by putting the burden on the fishermen to 
prove that they were legal fish trappers if they possessed fish with 
trap rash.
    For the action recommending additional reporting requirements, 
there were two alternatives that were both rejected on the basis of 
creating greater negative impacts than the preferred alternative 
without an offsetting improvement in the reporting process. The status 
quo was rejected because of the need to manage the fishery better 
through improved information gathering.
    A copy of the IRFA is available from the Council (see ADDRESSES).
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall a person be subject to, a penalty for failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act (PRA) unless that collection of 
information displays a currently valid OMB control number.
    This rule contains two new collection-of-information requirements 
subject to the PRA--namely, a requirement for fish trap vessel 
operators to provide, via toll-free telephone calls, trip initiation 
and trip termination reports and an annual requirement for fish trap 
owners/operators to schedule, via telephone call, an appointment with 
NMFS enforcement to allow inspection of fish trap gear, fish trap 
permits and tags, and vessels. These collection-of-information 
requirements have been submitted to OMB for approval. The public 
reporting burdens for the telephone calls for the trip initiation and 
termination reports, and for scheduling the fish trap inspection are 
estimated at 5 minutes each per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collections of information.
    Public comment is sought regarding: Whether these proposed 
collections of information are necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; the accuracy of the burden estimates; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collections of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these, or any other aspects of the collections of information, to NMFS 
and OMB (see ADDRESSES).

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

    Dated: March 1, 1999.
Andrew A. Rosenberg, Ph.D.,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 622 is 
proposed to be amended as follows:

[[Page 10616]]

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

    1. The authority citation for part 622 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. In Sec. 622.5, paragraph (a)(1)(ii)(B) is added and reserved, 
and paragraph (a)(1)(ii)(A) is added to read as follows:


Sec. 622.5  Recordkeeping and reporting.

* * * * *
    (a) * * *
    (1) * * *
    (ii) * * *
    (A) Fish traps. In addition to the other reporting requirements in 
paragraph (a)(1)(ii) of this section, the owner or operator of a vessel 
for which a fish trap endorsement has been issued, as required under 
Sec. 622.4(a)(2)(i), must comply with the following requirements.
    (1) Annual inspection. Each year, the RD will establish a 1-month 
period for mandatory inspection of all fish trap gear, permits, and 
vessels. The RD will provide written notification of the inspection 
period to each owner of a vessel for which a fish trap endorsement has 
been issued as required under Sec. 622.4(a)(2)(i). Each such owner or 
operator must contact the Special Agent-in-Charge, NMFS, Office of 
Enforcement, Southeast Region, St. Petersburg, FL (SAC) or his designee 
by telephone (727-570-5344) to schedule an inspection during the 1-
month period. Requests for inspection must be made between 8:00 a.m. 
and 4:30 p.m. Monday through Friday and must be made at least 72 hours 
in advance of the desired inspection date. Inspections will be 
conducted Monday through Friday between 8:00 a.m. and 4:30 p.m. only. 
On the inspection date, the owner or operator must make all fish trap 
gear with attached trap tags and buoys and all applicable permits 
available for inspection on land. Vessels must also be made available 
for inspection as directed by the SAC or his designee. Upon completion 
of the inspection and a determination that all fish trap gear, permits, 
and vessels are in compliance, an owner or operator may resume fishing 
with the lawful gear. However, an owner or operator who fails to comply 
with the inspection requirements during the 1-month inspection period 
or during any other random inspection may not use or possess a fish 
trap in the Gulf EEZ until the required inspection or reinspection, as 
directed by the SAC, has been completed and all fish trap gear, 
permits, and vessels are determined to be in compliance with all 
applicable regulations.
    (2) Trip reports. For each fishing trip on which a fish trap will 
be used or possessed, an owner or operator of a vessel for which a fish 
trap endorsement has been issued, as required under 
Sec. 622.4(a)(2)(i), must submit a trip initiation report and a trip 
termination report to the SAC or his designee, by telephone, using a 
24-hour toll-free number that will be provided in the final rule.
    (i) Trip initiation report. The trip initiation report must be 
submitted before beginning the trip and must include: vessel name; 
official number; number of traps to be deployed; sequence of trap tag 
numbers; date, time, and point of departure; and intended time and date 
of trip termination.
    (ii) Trip termination report. The trip termination report must be 
submitted immediately upon returning to port and prior to any 
offloading of catch or fish traps. The trip termination report must 
include: vessel name; official number; name and address of dealer where 
catch will be offloaded and sold; the time offloading will begin; 
notification of any lost traps; and notification of any traps left 
deployed for any reason.
    (B) [Reserved]
* * * * *
    3. In Sec. 622.7, paragraph (d) is revised to read as follows:


Sec. 622.7  Prohibitions.

* * * * *
    (d) Falsify or fail to maintain, submit, or provide information or 
fail to comply with inspection requirements or restrictions, as 
specified in Sec. 622.5(a) through (f).
* * * * *
    4. In Sec. 622.31, paragraph (c)(2) is revised to read as follows:


Sec. 622.31  Prohibited gear and methods.

* * * * *
    (c) * * *
    (2) In the Gulf EEZ, a fish trap--
    (i) May not be used or possessed west of 85 deg.30' W. long.;
    (ii) May not be used, but may be possessed on board a vessel with a 
valid fish trap endorsement for the sole purpose of transit, after 
February 7, 2001, south of 25 deg.03' N. lat.; and
    (iii) May not be used or possessed after February 7, 2007.
* * * * *
    5. In Sec. 622.41, paragraph (i) is added to read as follows:


Sec. 622.41  Species specific limitations.

* * * * *
    (i) Gulf reef fish exhibiting trap rash. Gulf reef fish in or from 
the Gulf EEZ that exhibit trap rash may be possessed on board a vessel 
only if that vessel has a valid fish trap endorsement, as required 
under Sec. 622.4(a)(2)(i), on board. Possession of such fish on board a 
vessel without a valid fish trap endorsement is prima facie evidence of 
illegal trap use and is prohibited. For the purpose of this paragraph, 
trap rash is defined as physical damage to fish that characteristically 
results from contact with wire fish traps. Such damage includes, but is 
not limited to, broken fin spines, fin rays, or teeth; visually obvious 
loss of scales; and cuts or abrasions on the body of the fish, 
particularly on the head, snout, or mouth.
[FR Doc. 99-5498 Filed 3-4-99; 8:45 am]
BILLING CODE 3510-22-F