[Federal Register Volume 64, Number 236 (Thursday, December 9, 1999)]
[Rules and Regulations]
[Pages 68932-68936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31969]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 622

[Docket No. 981229328-9249-02; 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; OMB Control 
Numbers

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 the approved measures 
in Amendment 16A to the Fishery Management Plan for the Reef Fish 
Resources of the Gulf of Mexico (FMP). This final rule prohibits 
possession of reef fish exhibiting trap rash on board a vessel that is 
in the exclusive economic zone (EEZ) of the Gulf of Mexico and that 
does not have a valid fish trap endorsement and requires fish trap

[[Page 68933]]

vessel owners or operators to provide trip initiation and trip 
termination reports and to comply with a vessel/gear inspection 
requirement. The provision of Amendment 16A that would have prohibited 
the use of fish traps in the EEZ of the Gulf of Mexico south of 
25 deg.03' N. lat. after February 7, 2001, has been disapproved. 
Finally, NMFS informs the public of the approval by the Office of 
Management and Budget (OMB) of the collection-of-information 
requirements contained in this rule, publishes the OMB control number 
for these collections, and corrects the list of control numbers 
applicable to title 50 of the Code of Federal Regulations. The intended 
effects of this rule are to enhance enforceability of fish trap 
measures and to conserve and manage the reef fish resources of the Gulf 
of Mexico.

DATES: This rule is effective January 10, 2000.

ADDRESSES: Copies of the final regulatory flexibility analysis (FRFA) 
may be obtained from the Southeast Regional Office, NMFS, 9721 
Executive Center Drive N., St. Petersburg, FL 33702. Comments regarding 
the collection-of-information requirements contained in this rule 
should be sent to Edward E. Burgess, Southeast Regional Office, NMFS, 
9721 Executive Center Drive N., St. Petersburg, FL 33702, and to the 
Office of Management and Budget (OMB), Washington, DC 20503 (Attention: 
NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Roy Crabtree, 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.
    On December 18, 1998, NMFS announced the availability of Amendment 
16A and requested comments on the amendment (63 FR 70093). On March 5, 
1999, NMFS published a proposed rule to implement the measures in 
Amendment 16A and additional measures proposed by NMFS and requested 
comments on the rule (64 FR 10613). The background and rationale for 
the measures in the amendment and proposed rule, including a detailed 
explanation of inspection and reporting requirements, are contained in 
the preamble to the proposed rule and are not repeated here. On March 
18, 1999, after considering the comments received on the amendment, 
NMFS partially approved Amendment 16A. NMFS disapproved the provision 
of Amendment 16A prohibiting the use of fish traps in the EEZ of the 
Gulf of Mexico south of 25 deg.03' N. lat. after February 7, 2001.
    NMFS implemented a 10-year phaseout of the fish trap fishery ending 
February 7, 2007, under Amendment 14 (62 FR 13983, March 25, 1997). 
Amendment 16A proposed a shorter phaseout period (ending February 7, 
2001) for an area in Federal waters south of Cape Sable, FL (25 deg.03' 
N. lat.) at the southernmost point of the Florida peninsula. NMFS 
disapproved this measure based on national standard 7 of the Magnuson-
Stevens Act because no conservation benefits were shown, the measure 
would impose an unnecessary burden on fishermen, and the costs do not 
appear to be justified. Amendment 16A and subsequent public comment on 
the proposed rule demonstrate no overriding conservation benefits from 
the accelerated phaseout to justify overturning the Council's previous 
commitment to a 10-year phaseout. NMFS previously approved the 
elimination of fish traps in the Gulf of Mexico after February 7, 2007, 
as proposed in Reef Fish Amendment 14.
    In the proposed rule, NMFS proposed a change from the one-time 
inspection proposed by the Council in Amendment 16A to an annual 
inspection. NMFS stated in the proposed rule that the need to monitor 
compliance in the fishery justified inspections on an annual basis. 
After further review, NMFS has concluded that annual inspections would 
be overly burdensome on participants in the fishery. Consequently, NMFS 
revised this final rule to require only a one-time inspection that is 
intended to accomplish the Council's objective of ensuring that all 
fish trap gear used in the Gulf of Mexico is in compliance with fish 
trap regulations.

Comments and Responses

    NMFS received 6 comments on Amendment 16A and on the proposed rule, 
including a minority report from two members of the Council.
    Comment 1: A commenter objected to the use of trap rash as a 
diagnostic tool that indicates that a fish was caught in a wire fish 
trap. This commenter stated that fish legally caught with stone crab 
pots always have trap rash.
    Response: Trap rash is extreme physical damage to fish involving 
loss of body parts (e.g., fins, spines, teeth) and cuts, especially to 
the head, snout or mouth, resulting from prolonged retention in wire 
traps. Physical conditions resulting from brief retention in legal 
stone crab traps or coolers are not similar and cannot be confused with 
trap rash. Trap rash only occurs during prolonged retention in wire 
traps, and NMFS' enforcement experience indicates that prolonged 
retention is only associated with illegal traps. Legal fish traps are 
required to be tended on each fishing trip, and such practice does not 
allow sufficient time for trap rash to develop. Fish retained briefly 
in a stone crab trap or cooler may exhibit minor physical irritation 
resulting from having rubbed against the trap or cooler but do not have 
the serious physical damage referred to as trap rash.
    Comment 2: Four commenters supported the accelerated phaseout of 
fish traps south of Cape Sable and objected to the NMFS disapproval of 
this measure in Amendment 16A. One commenter argued that the 
accelerated phaseout measure is consistent with national standard 7 of 
the Magnuson-Stevens Act and would result in significant conservation 
benefits and improved enforcement.
    Response: NMFS believes the proposed accelerated phaseout of fish 
traps is inconsistent with national standard 7 of the Magnuson-Stevens 
Act because no conservation benefits were shown, the measure would 
impose an unnecessary burden on fishermen, and the costs do not appear 
to be justified. The Council's Regulatory Impact Review suggests that 
if the accelerated area phaseout had been approved, substantial 
increases in fish trapping costs due to relocation would have forced 
some vessels to cease their fishing operations. The Council did not 
show that other benefits would have accrued to the fishery that would 
have outweighed the negative costs. Furthermore, Amendment 16A does not 
substantiate the Council's assumption that continued fish trapping in 
the proposed area would contribute to bycatch problems, user group 
conflicts, or illegal trap use in adjacent state waters. The document 
demonstrates no overriding conservation benefits from the accelerated 
phaseout to justify overturning the Council's previous commitment to a 
10-year phaseout. NMFS continues to support the elimination of fish 
traps in the Gulf of Mexico after February 7, 2007, as approved in Reef 
Fish Amendment 14.
    Comment 3: Two Council members, in a minority report, opposed the 
accelerated phaseout of fish traps south of Cape Sable. The report 
states that this measure is a violation of national standards 2, 4, 5, 
6, 7, and 8 of the Magnuson-Stevens Act. The report concludes that the 
measure is arbitrary

[[Page 68934]]

and capricious, and recommends disapproval.
    Response: NMFS concurs that this measure was not adequately 
justified by the Council for the reasons stated above. NMFS disapproved 
this measure based on national standard 7 of the Magnuson-Stevens Act.

Changes From the Proposed Rule

    In Sec. 622.31(c)(2), the proposed language regarding the 
accelerated phaseout of fish traps south of Cape Sable, FL (25.05 deg. 
N. lat.) was removed due to the disapproval of that provision.
    In Sec. 622.5(a)(1)(ii)(A)(1), the language proposed by NMFS that 
would have required an annual vessel/gear inspection was revised to 
require only a one-time inspection. This revision was based on NMFS' 
subsequent determination that annual inspections would be unduly 
burdensome.

Classification

    Under NOAA Administrative Order 205-11, 7.01, dated December 17, 
1990, the Under Secretary for Oceans and Atmosphere, Department of 
Commerce, has delegated authority to sign material for publication in 
the Federal Register to the Assistant Administrator for Fisheries, NOAA 
(AA).
    The Regional Administrator, Southeast Region, NMFS, with the 
concurrence of the AA, determined that the approved measures of 
Amendment 16A are necessary for the conservation and management of the 
reef fish fishery of the Gulf of Mexico and that, with the exception of 
the measure that was not approved, Amendment 16A is consistent with the 
Magnuson-Stevens Act and other applicable law.
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    NMFS prepared a FRFA for the final rule implementing Amendment 16A 
to the FMP. The FRFA was based on the IRFA, public comments, and 
subsequent analysis by NMFS. A summary of the FRFA follows.
    This rule is needed because reports that fish trap fishing 
violations are continuing. The objective is to provide for improved 
monitoring and reporting of trap fishing operations as a means to 
increase the effectiveness of law enforcement activities. Amendment 16A 
proposed to prohibit the use of fish traps in the EEZ of the Gulf of 
Mexico south of 25 deg.03' N. lat. after February 7, 2001; to prohibit 
possession of reef fish exhibiting trap rash (i.e., physical injuries 
characteristic of confinement in wire fish traps) on board a vessel 
that does not have a valid fish trap endorsement; and to require that 
fish trap vessel owners or operators provide trip initiation and trip 
termination reports and to comply with a vessel/gear inspection 
requirement. NMFS received several comments during the public comment 
period that addressed the economic impacts of the proposed accelerated 
phaseout of fish trapping in the area south of 25 deg.03' N. lat. These 
comments indicated that there would be increased costs associated with 
longer transits to alternate fishing grounds and that the proposal 
would have increased safety risks. There were also comments in favor of 
the Council's proposal for an accelerated phase out, but these comments 
did not address issues about economic impacts. In general, NMFS agrees 
with the fishermen's economic concerns but disagrees with general 
comments supporting the accelerated phaseout. NMFS found that the 
accelerated phaseout was not supported by information in Amendment 16A, 
other available information, or by the public comments. Hence, the 
accelerated phaseout was disapproved, and that provision was removed 
from the final rule. There were no substantive public comments 
regarding the economic impacts of other provisions of the rule.
    Approximately 86 vessels currently have fish trap endorsements. All 
of these are small entities, and all will be affected to about the same 
degree by the approved provisions of the rule. Existing data indicate 
that one class of fish trap vessels reported average annual gross sales 
of $93,426, average annual income net of variable costs and crew shares 
of $19,409, and average boat resale value of $55,846. Another class of 
vessels reported figures of $86,039 average gross sales, average annual 
net income of $21,025, and $48,118 boat resale value.
    This rule contains two provisions that will require additional 
reporting and compliance efforts but no additional recordkeeping. All 
permitted trap fishermen will be required to schedule an appointment 
with NMFS law enforcement and have their vessels and trap gear 
inspected by a law enforcement officer. This will take an estimated 2 
to 4 hours to comply. In addition, fishermen will be required to 
provide trip initiation and termination reports via a toll free call. 
Each call will take 5 minutes, or a total of 10 minutes per trip. 
Because the average vessel takes 29 trips per year, the average annual 
time burden per vessel is estimated to be 290 minutes or about 5 hours.
    The Magnuson-Stevens Act provides the legal basis for all the 
approved provisions of the rule. Under existing regulations, all fish 
traps are to be phased out over a 10-year period. Three alternatives 
for a different phaseout period were considered in Amendment 16A: 
status quo, a 2-year phaseout of all fish trapping, and a 2-year 
phaseout for the area south of 25 deg.03' N. lat. NMFS rejected the 
Council's alternative for the early phaseout of the use of fish traps 
south of 25 deg.03' N. lat. because the associated negative economic 
impacts were not adequately justified or offset by benefits. Five 
alternatives were considered for a provision regarding the possession 
of reef fish exhibiting trap rash. The preferred alternative prohibits 
possession of reef fish that exhibit trap rash on board any vessel not 
possessing a valid fish trap endorsement. If this situation is observed 
by a law enforcement officer, it is considered to be prima facie 
evidence that the fish were taken illegally. Three rejected 
alternatives would have limited the possession of reef fish to a trip 
limit to be determined. These three rejected alternatives had an 
unknown level of economic impacts because there was no final 
determination of the actual trip limits. Another alternative would have 
provided that a spiny lobster or stone crab vessel that also had a reef 
fish permit could keep the same quantity of reef fish as any other 
permitted reef fish vessel. That alternative was rejected because it 
would not provide law enforcement with an adequate means to address the 
problem of illegal traps, even if the condition of trap rash was 
evident. Finally, the status quo was considered and rejected on the 
basis that a solution was needed to the use of trap rash as an 
indicator of the use of illegal traps. Two alternatives to the proposed 
provisions for inspection of the vessels/traps and to the requirement 
for trip initiation and termination reports were considered and 
rejected. One alternative was to close the fishery to all fish trapping 
for one month to allow time for the inspections of vessels and gear. 
This was rejected because a fixed one-month closure was considered 
unnecessarily burdensome compared to the preferred alternative that 
provides flexibility for scheduling inspections at times most 
convenient and least burdensome to the fishermen. The status quo was 
considered and rejected because it did not address the trap issue.
    Copies of the FRFA are available (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 PRA unless that

[[Page 68935]]

collection of information displays a currently valid OMB control 
number.
    This rule contains two new collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA)--namely, a requirement for 
fish trap vessel operators to provide, via toll-free telephone calls, 
trip initiation and trip termination reports and a 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 requirements have been approved by 
OMB under OMB control number 0648-0392. 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. Send comments regarding these burden 
estimates or any other aspects of the collections of information, 
including suggestions for reducing the burden, to NMFS and OMB (see 
ADDRESSES).

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.
    Dated: December 2, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR 
part 622 are amended as follows:

15 CFR CHAPTER IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

    1. The authority citation for part 902 continues to read as 
follows:

    Authority: 44 U.S.C. 3501 et seq.

    2. In Sec. 902.1, the table in paragraph (b), under 50 CFR, is 
amended by adding the following entry in numerical order to read as 
follows:


Sec. 902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *

------------------------------------------------------------------------
                                             Current OMB control number
 CFR part or section where the information  (all numbers begin with 0648-
     collection requirement is located                    )
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                  *        *        *        *        *
50 CFR
 
                  *        *        *        *        *
622.5                                       -0392
 
                  *        *        *        *        *
------------------------------------------------------------------------

50 CFR CHAPTER VI

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

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

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

    4. 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) Inspection. The RA will establish a 1-month period for 
mandatory inspection of all fish trap gear, permits, and vessels. The 
RA 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 the 
following 24-hour toll-free number--800-305-0697.
    (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]
* * * * *
    4. 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).
* * * * *
    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.

[[Page 68936]]

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. 99-31969 Filed 12-8-99; 8:45 am]
BILLING CODE 3510-22-F