[Federal Register Volume 67, Number 125 (Friday, June 28, 2002)]
[Rules and Regulations]
[Pages 43558-43565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16285]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 020313055-2148-02; I.D. 021902F]
RIN 0648-AO62


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Coastal Migratory Pelagic Resources of the Gulf of Mexico and South 
Atlantic; Reef Fish Fishery of the Gulf of Mexico; Charter Vessel and 
Headboat Permit Moratorium

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement Amendment 14 to the 
Fishery Management Plan for the Coastal Migratory Pelagic Resources of 
the Gulf of Mexico and South Atlantic (Amendment 14) and Amendment 20 
to the Fishery Management Plan for the Reef Fish Resources of the Gulf 
of Mexico (Amendment 20). This final rule establishes a 3-year 
moratorium on the issuance of charter vessel or headboat (for-hire) 
permits for the reef fish fishery and coastal migratory pelagics 
fishery in the exclusive economic zone (EEZ) of the Gulf of Mexico. 
Also, as a consequence of the moratorium, the current charter vessel/
headboat permit for coastal migratory pelagic fish is restructured to 
provide separate permits for the Gulf of Mexico and South Atlantic. In 
addition, NMFS informs the public of the approval by the Office of 
Management and Budget (OMB) of the collection-of-information 
requirements contained in this final rule and publishes the OMB control 
numbers for those collections. The intended effect of this final rule 
is to cap the number of for-hire vessels operating in these respective 
fisheries at the current level while the Gulf of Mexico Fishery 
Management Council (Council) evaluates the need for further management 
actions that may be needed to rebuild these fishery resources, and 
promote attainment of optimum yield.

DATES: This final rule is effective July 29, 2002, except for the 
revisions to Secs. 622.5(b)(1) and 622.43(a)(3)(ii), which are 
effective December 26, 2002.

ADDRESSES: Copies of the final regulatory flexibility analysis (FRFA) 
and copies of a supplemental environmental assessment prepared by NMFS 
are available from the Southeast Regional Office, NMFS, 9721 Executive 
Center Drive N., St. Petersburg, FL 33702.
    Comments on the collection-of-information requirements contained in 
this final rule should be sent to Robert Sadler, 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).

FOR FURTHER INFORMATION CONTACT: Phil Steele, telephone: 727-570-5305, 
fax: 727-570-5583, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The fishery for reef fish is managed under 
the Fishery Management Plan for the Reef Fish Resources of the Gulf of 
Mexico (Reef Fish FMP) that was prepared by the Council. The fisheries 
for coastal migratory pelagic resources are managed under the Fishery 
Management Plan for the Coastal Migratory Pelagic Resources of the Gulf 
of Mexico and South Atlantic (Coastal Migratory Pelagics FMP) that was 
prepared jointly by the Council and the South Atlantic Fishery 
Management Council. These FMPs were approved by NMFS and implemented 
under the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 
622.
    On February 27, 2002, NMFS announced the availability of Amendments 
14 and 20 and requested public comment on them (67 FR 8926).

[[Page 43559]]

A proposed rule to implement the measures in these amendments, with a 
request for comments, was published on March 25, 2002 (67 FR 13587). 
NMFS approved the amendments on May 29, 2002. The background and 
rationale for the measures in the amendments and proposed rule are 
contained in the preamble to the proposed rule and are not repeated 
here.

Comments and Responses

    NMFS received four comments addressing the proposed amendment and 
17 comments addressing the proposed rule. Additionally, two nearly 
identical minority reports, each signed by two Council members, 
objecting to the implementation of the proposed charter vessel/headboat 
moratorium were submitted. No comments on the initial regulatory 
flexibility analysis were received. All comments and the minority 
reports are summarized and responded to here.
    Comment 1: Two nearly identical minority reports, each signed by 
two Council members, objecting to the implementation of the proposed 
charter vessel/headboat moratorium were submitted. The primary 
objections expressed in these minority reports were that the moratorium 
is not necessary, would not accomplish its stated goal, would reduce 
competition in the for-hire industry, would create a windfall profit 
for a select group of people and deny others the right to pursue an 
occupation of their own choice, would result in unnecessary social 
engineering, and would violate national standards 4 and 8 of the 
Magnuson-Stevens Act.
    Response: The Council, in cooperation with the Gulf charter vessel/
headboat industry, developed the moratorium to address issues of 
increased fishing effort and fishing mortality rates in the for-hire 
sector of the recreational fishery. Further, the overfished status of 
several of the major stocks targeted by and the continuing expansion of 
the recreational-for-hire sector are problems that support the 
development and implementation of this moratorium. In 1998, there were 
an estimated 3,220 recreational for-hire vessels in the Gulf of Mexico. 
Of these for-hire vessels, there are an estimated 1,275 charter vessels 
and 92 headboats; the remainder are probably smaller guide boats that 
usually fish inshore. The number of charter boats operating in the Gulf 
of Mexico has increased from 516 in 1981 to 1,275 in 1998 (147 
percent), while the number of headboats has remained relatively stable 
during the same period. Further, the number of individual angler 
charter vessel trips increased by approximately 51 percent (through 
1998) over the average number of trips from the previous decade.
    During this same period, there has been an increase in the number 
of Gulf of Mexico fish stocks identified as overfished or approaching 
an overfished state. In the January 2001 report to Congress on the 
Status of U.S. Fisheries, red snapper and red grouper were classified 
as being overfished and undergoing overfishing. Gag grouper was 
classified as undergoing overfishing and approaching an overfished 
state. King mackerel was classified as overfished and vermilion snapper 
was classified as undergoing overfishing. Further, the Council was 
notified, by a letter from NMFS in February 2001, that greater 
amberjack was overfished. While all sectors have contributed to the 
overfished status of these important fisheries, increased fishing 
effort and fishing mortality rates by the for-hire sector in recent 
years have substantially increased the proportion of landings 
attributed to that sector. The percent of recreational red grouper, by 
number, landed by the recreational for-hire sector increased from 14 
percent (1988/1989) to 32 percent (1996-1997) of the total recreational 
landings; the percentage of recreational red snapper, by number, landed 
by the recreational for-hire sector increased from 34 percent (1981-
1982) to 62 percent (1988-1989) to 71 percent (1996-1997) of the total 
recreational landings. This increased catch by the recreational for-
hire sector has contributed to the progressively earlier closures of 
the red snapper recreational fishery each year. This fishery was closed 
on November 27 in 1997, September 30 in 1998, and August 29 in 1999. 
This progressively longer closure period is adversely impacting the 
charter vessel/headboat sector that is dependent on this stock. 
Additionally, for king mackerel, the percent recreational landings, by 
number, caught by the recreational for-hire fishery increased from 17 
percent in 1983, to 32 percent in 1988, and to 62 percent in 1997, 
almost doubling between each period. The landings for gag grouper 
increased from 15 percent during 1981-1982 to 33 percent during 1995-
1996, i.e., essentially doubling between the first and last period. 
Further, recreational for-hire vessels historically have landed most of 
the recreational landings of vermilion snapper (90 percent) and greater 
amberjack (63 percent) during the period 1995-1996.
    In conjunction with existing bag limits and size limits, the 
moratorium will further moderate short-term increases in fishing effort 
in the for-hire sector of the recreational fishery by limiting the 
number of vessels in the fishery. The moratorium is a form of limited 
access management that is intended to temporarily stabilize this 
effort. It will allow the Council the time necessary to develop a more 
comprehensive approach to help restore overfished stocks and will 
promote attainment of optimum yield during the interim.
    In developing the moratorium program present participation in the 
fisheries was considered to the fullest extent possible. It became 
obvious in the development of the moratorium, and from public comment, 
that there were numerous vessels operating in the Gulf recreational 
for-hire fisheries that had not obtained permits. Apparently, some 
participants were unaware of the permit requirements. As the Council 
continued development of the amendment, more for-hire fishermen became 
aware of the permit requirement and obtained permits. The number of 
vessels operating out of the Gulf (including Monroe County, FL) ports 
with permits for the reef fish or coastal migratory pelagic fisheries 
was 940 on November 18, 1998 (old control date), and 1,650 vessels by 
August 2000, or an increase of 75 percent. To ensure that the current 
participants had an opportunity to be included, the Council selected 
March 29, 2001, as the new control date for eligibility. This takes 
into full consideration historical fishing practices and dependence on 
the fisheries and clearly does not discriminate based on state of 
residence. Regarding potential windfall profits to current permit 
holders who choose to sell their permits, the vale of these permits and 
their projected profitability can not be estimated at this time. 
However, Ditton and Loomis (1985), and Ditton and Vize (1987), found a 
relatively high turnover rate in the charter fishing industry in Texas, 
reaching 52 percent over 5 years and 75 percent over 10 years. Such a 
high turnover rate in the recreational for-hire sectors should make a 
substantial number of these permits readily available (permits are 
fully transferrable under provisions of the moratorium) and reduce the 
potential for windfall profits.
    Additionally, the minority reports' concern that the permit 
moratorium violates national standard 8 is not warranted. The economics 
of the fisheries, and the cultural and social framework relevant to the 
fisheries and fishing communities were a prime consideration of the 
Council in establishing the moratorium. The moratorium and accompanying 
control

[[Page 43560]]

date should effectively allow qualification and continued operation of 
nearly all vessels or business entities currently participating in 
these fisheries and, thereby, not alter the economic, social, or 
cultural framework of the fishing communities, other than through the 
short term preclusion of participation expansion. During the 
moratorium, new participation into the fisheries could still occur 
through the transfer of existing permits, albeit at a higher entry cost 
than in the absence of the moratorium. Thus, new entry could continue 
to occur without resulting in increased fishing mortality rates on the 
affected stocks. In the absence of the moratorium, under status quo 
conditions, entry of new vessels into the fishery could continue 
unabated. This would result in increased participation, thereby 
increasing fishing mortality rates on the stocks, which may necessitate 
more restrictive regulations on the harvest of individual species. This 
would be expected to produce declines in angler benefits and 
participation, for-hire and support industry profitability, and 
degradation of the social and cultural framework surrounding these 
fisheries. The temporary reduction in increased fishing mortality 
rates, through the cap on participation, should forego these adverse 
conditions.
    Further, the Council and NMFS prepared a Regulatory Impact Review 
(RIR) and a Final Regulatory Flexibility Analysis (FRFA) that assess 
the socioeconomic effects of the preferred measures and alternatives 
considered by the Council and NMFS. The costs and benefits of the rule 
are assessed in the RIR and the economic impacts on small entities are 
assessed in the RIR/FRFA. The Council considered the economic 
implications of each alternative for achieving the management objective 
of moderating short-term future increases in fishing effort while 
attempting to stabilize fishing mortality in the for-hire sector of the 
recreational fishery. The FRFA identifies the alternatives with less 
economic impacts on small entities and sets forth the reasons why such 
alternatives were rejected. NMFS believes that the approved measures 
were based on the best available scientific information and will 
achieve the management objective in a fair and equitable manner, while 
minimizing the adverse economic impacts to the extent practicable.
    Comment 2: Two individuals opposing the amendment stated that the 
public had not received adequate notification of the amendment.
    Response: Two sets of public hearings for the Draft Charter Vessel/
Headboat Moratorium Amendment were held at 10 locations throughout the 
Gulf of Mexico from Port Isabel, TX, to Madeira Beach, FL, during the 
period December 6, 1999, through December 15, 1999, and February 5, 
2001, through February 21, 2001. In addition, public testimony on the 
proposed moratorium was heard at the Council meeting in Mobile, AL, on 
March 12, 2001. Further, an advanced notice of proposed rulemaking to 
establish the March 29, 2001, control date was published in the Federal 
Register on June 14, 2001 (66 FR 32312). Additionally, following the 
Council's submission of the amendment to NMFS for Secretarial review, a 
notice of availability announcing the amendment was published in the 
Federal Register on February 27, 2002 (67 FR, 8926). Comments were 
accepted from the public through April 29, 2002. The proposed rule and 
request for comments were published in the Federal Register on March 
25, 2002 (67 FR, 13587). Comments were accepted through May 9, 2002. 
Finally, two NMFS Southeast Fisheries Bulletins announcing the public 
comment period for the proposed amendment and final rule were 
distributed on April 3, 2002.
    Comment 3: Seven individuals stated that the permit moratorium 
restricted free enterprise throughout the recreational for-hire sector.
    Response: During the moratorium, new participation into the 
fisheries can still occur through the transfer of existing permits, 
albeit at a higher entry cost than in the absence of the moratorium. 
Thus, new entry can continue to occur without resulting in increased 
fishing mortality rates on the affected stocks.
    Comment 4: One individual stated that NMFS lacked sufficient catch 
data for the recreational for-hire sector to support a moratorium on 
the issuance of new permits.
    Response: NMFS believes that the approved measures are based on the 
best available science and are consistent with the precautionary 
approach to fisheries management. Sufficient sci entific information 
(see Response to Comment 1) suggests that the number of charter boats 
and individual angler charter vessel trips have increased substantially 
over the past decade. During this same period, there has been an 
increase in the number of fish stocks identified as overfished or 
approaching an overfished state that are targeted by the recreational 
for-hire sector (i.e., red snapper, red grouper, gag grouper, vermilion 
snapper, and greater amberjack). While all sectors have contributed to 
the overfished status of these important fisheries, increased fishing 
effort and fishing mortality rates by the recreational for-hire sector 
in recent years have substantially increased the proportion of landings 
attributed to that sector. This increase in fishing effort and fishing 
mortality rates in the for-hire sector of the recreational fishery 
further support the implementation of the moratorium.

Change From the Proposed Rule

    In Sec. 622.4(r)(4), NMFS removed the third sentence which read, 
``No more than one owner of a currently permitted vessel will be 
credited with meeting the permit history criterion based on a vessel's 
permit history.'' This sentence is unnecessary and ambiguous. The 
sentence was intended to clarify that in cases where ownership of a 
permitted vessel involved multiple persons (e.g., joint ownership or a 
corporation) eligibility would apply to the single owning entity not to 
each of the individuals constituting the owning entity. However, the 
sentence could be misinterpreted as meaning that if a permitted vessel 
was owned by two or more different owners during the qualifying period 
for eligibility, only one of those owners would be eligible for a 
permit under the moratorium. That is incorrect and inconsistent with 
the intent.
    Further, because it is standard practice to treat multi-person 
ownership as a single owner, the sentence is unnecessary and has been 
removed from the final rule.

Classification

    The Administrator, Southeast Region, NMFS determined that 
Amendments 14 and 20, which this final rule implements, are necessary 
for the conservation and management of the coastal migratory pelagics 
and reef fish fisheries of the Gulf of Mexico and that they are 
consistent with the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an FRFA that describes the economic impact that this 
final rule will have on small entities. A description of the action, 
why it is being implemented, and the legal basis for this action are 
contained in the preamble of this final rule. A description of 
significant alternatives to the proposed rule and a discussion of how 
the alternatives attempt to minimize economic impacts on small entities 
follows. Six alternatives to the proposed moratorium were considered. 
These were: a 5-year moratorium instead of the proposed 3-year 
moratorium; status quo; a 50-percent income requirement

[[Page 43561]]

for renewal in lieu of a moratorium; for-hire species quotas; a 3- or 
5-year moratorium in combination with species quotas; and a 3-year 
moratorium with mandatory expiration should the red snapper 
restrictions become more severe. Since the status quo alternative would 
not accomplish the Councils goals, among the remaining alternatives, 
including the proposed rule, the proposed rule was determined to 
produce the least impacts on small entities. The 5-year alternative 
would provide a more stable planning horizon for industry participants 
but extend the period during which capacity expansion and restrictions 
on new entry would be impacted. The 50 percent income requirement would 
result in contraction of existing participants beyond the intent of the 
Council, which is to stabilize rather than contract the fishery while a 
more comprehensive evaluation is conducted and management program is 
designed. Species quotas would subject the fishery to disruptive 
closures. Linkage to the red snapper management environment was 
determined to be indefensible and, therefore, would not allow 
implementation of the proposed rule and would forego the perceived 
benefits of stabilization. In summary, the proposed rule would best 
accomplish the Council's intent while minimizing impacts.
    A summary of the analysis follows. The Magnuson-Stevens Act 
provides the statutory basis for the final rule. The objective of the 
final rule is to cap the number of for-hire vessels permitted to fish 
for reef fish or coastal migratory pelagics in the EEZ of the Gulf of 
Mexico at the current level while the Council assesses the actions 
necessary to restore overfished reef fish and king mackerel stocks and 
determine whether a more comprehensive effort management system is 
appropriate for these fisheries. The final rule will: create a new for-
hire vessel permit for the Gulf EEZ for vessels fishing for reef fish 
and/or coastal migratory pelagics; establish a 3-year moratorium on the 
issuance of new for-hire vessel permits effective the date that the 
final rule implementing Amendments 14 and 20 becomes effective; 
establish eligibility requirements for the permits that would 
accommodate owners of vessels that possessed or had applied for 
charter/headboat reef fish and/or coastal migratory pelagic permits on 
or before March 29, 2001, and who possess such permit(s) as of the 
effective date of the final rule implementing this moratorium, new for-
hire vessels contracted for or under construction prior to March 29, 
2001, and historical captains; allow full transference of permits 
during the moratorium with or without the vessel but without any 
increase in the passenger capacity of the recipient vessel (permits 
with a historical captain endorsement may only be transferred to a 
vessel operated by the historical captain); not allow permit renewal 
during the moratorium for permits not renewed within 1 year of 
expiration; allow an appeal process to resolve issues related to 
initial eligibility; and, establish reporting and permit renewal 
conditions.
    The creation of a for-hire permit and implementation of a 3-year 
moratorium for the issuance of new permits will provide some stability 
for the for-hire sector in terms of number of participating vessels 
while the need for a more comprehensive controlled access or effort 
management system is evaluated. The specific number of vessels 
accommodated by the rule is unknown since it is not known how many 
individuals will qualify and seek permits under the boat construction 
or historical captain provisions. The moratorium will also not produce 
a hard cap on effort in the form of angler trips since current vessels 
may be operating under less than full passenger capacity and will 
retain the flexibility to increase the frequency of partial-day trips. 
Nevertheless, this final rule will limit expansion to the capacity of 
current participants. This will allow identification and enumeration of 
vessels in these fisheries to support essential data collection and 
establish a more stable environment for assessing the status of the 
fishery in support of subsequent regulation.
    This final rule will effectively allow status quo operation by 
current participants in the fishery who had such permits (or applied 
for such) at some time during March 29, 2000, to March 29, 2001, and 
who also have a valid permit on the date the final rule becomes 
effective. The eligibility provisions for new vessel construction and 
historical captains will further protect the opportunities of 
individuals who have demonstrated a dependence on the fishery through 
capital investment or historical participation. The only impediment to 
the status quo business practices of such initial qualifiers is the 
limitation on vessel passenger capacity upgrades under the current 
permit. Such upgrade will be possible, however, through the purchase of 
the appropriate permit from another vessel. The liberal provisions for 
permit transfer support business upgrade, allow the entrance of new 
operators or buyouts by more efficient operators, and create a 
marketable asset that may enhance the value of the vessel and client 
lists should a participant decide to sell his/her business. The 
eligibility and transfer provisions are, thus, consistent with the 
intent to allow status quo participation while it is determined whether 
current effort levels are appropriate, rather than legislate 
reductions. The appeals process will afford valid participants the 
opportunity to address record discrepancies that adversely affect their 
eligibility. Finally, the renewal provisions support the fishery 
management process by aiding in the collection of essential harvest and 
participation information.
    Business operations in the for-hire sector consist primarily, if 
not exclusively, of small business entities. For-hire vessel operations 
are considered small business entities if they generate receipts of 
less than $6.0 million per year. The average gross revenues for charter 
boats operating in 1997 was $83,000 for vessels in Alabama through 
Texas (based on average numbers of trips per vessel and average fee per 
trip) and $68,000 for vessels in Florida, while the average gross 
revenues for head boats/party boats was $328,000 in Alabama through 
Texas and $324,000 in Florida. Current revenues may exceed those of 
1997, but the revenue performance of the fishery clearly qualifies the 
participants to fit the definition of small business entities.
    All for-hire vessels that fish for reef fish or coastal migratory 
pelagics in the Gulf of Mexico EEZ will be affected by this final rule. 
However, all of these vessels are currently required to possess the 
appropriate for-hire permits for the fisheries in which they 
participate. The only effective new permit implication of this final 
rule is to require vessels expecting to fish for coastal migratory 
pelagics in both the Gulf of Mexico and South Atlantic to obtain two 
permits, one for each subregion, instead of the current single permit 
which allows fishing in either subregion. This will require an 
additional $20 application fee for the second permit. As of the control 
date of March 29, 2001, there were 2,226 permitted for-hire vessels, of 
which 1,737 had both reef fish and coastal migratory pelagic charter 
permits, 123 had only the reef fish charter permit, and 366 had only 
the coastal migratory pelagic charter permit. These totals are 
substantially greater than those at the previous control date of 
November 18, 1998, when there were only 940 permitted for-hire vessels, 
of which 723 had both permits, 58 had only the reef fish permit and 159 
had only the coastal migratory pelagic permit. While total permit 
numbers

[[Page 43562]]

more than doubled during this time span, a potentially substantial 
portion of the increase is likely attributed to vessels that were 
previously operating in the fishery without the proper permits, since a 
frequent comment at public hearings was that operators were unaware of 
the current permit requirements. Thus, not all of the increase is 
believed to be due to either new participation or speculative purchase. 
It is not currently known how many vessels obtained their first for-
hire permit after the cut-off date and would, therefore, not be 
eligible for the initial receipt of the permit. Nor is it known how 
many vessels might be expected to enter the fishery during the 
moratorium period in the absence of a moratorium. The large increase in 
permits suggests that a substantial number of vessels interested in 
participating in the fishery have already established qualification, 
and the liberal qualification and transfer provisions of this final 
rule should allow further entry by interested individuals, albeit at a 
larger cost due to the need to purchase a permit from a current 
operation. However, since all vessels in the fishery will be affected 
and all are considered small business entities, it is concluded that a 
significant number of small entities will be affected by this final 
rule.
    No significant issues were raised by public comments in response to 
the IRFA. Therefore, no changes were made in the final rule as a result 
of such comments.
    The determination of significant economic impact can be ascertained 
by examining two criteria, disproportionality and profitability. The 
disproportionality question is: will the regulations place a 
substantial number of small business entities at a significant 
competitive disadvantage to large business entities? Although some 
variation exists between vessel operation type (guide boat, charter 
boat, and head/party boat), vessel length, and degree of participation 
in the fishery (number of trips per year), all vessels are classified 
as small business entities. Thus, the issue of disproportionality is 
not relevant in the present case.
    The profitability question is: will the regulations significantly 
reduce profit for a substantial number of small entities? Two 
categories of operations will be affected by the final rule, qualifying 
vessels and non-qualifying vessels. Effects on qualifying vessels may 
accrue through the permit fee, the reporting requirement, and the 
limitation on passenger capacity expansion. While permit fees are $50 
for the first permit and $20 each for any additional permit, all 
vessels are currently required to possess a permit. Thus, permit costs 
should not be substantially affected, nor should they significantly 
affect profits. The reporting requirement impacts time expenses rather 
than actual monetary outlays and, therefore, do not directly affect 
profitability. The effects on profits of the limitation on passenger 
capacity expansion cannot be estimated because neither the cost of 
purchasing an existing permit, the expected rate of expansion (what 
portion of vessels might be expected to expand), or the expected 
average capacity expansion (i.e., what the average expansion will be 
from what starting passenger capacity to what final passenger capacity) 
can be forecast.
    Effects on the profits of non-qualifying vessels will consist of 
the effects of not being allowed to continue participation in the 
fishery or the requirement that new entrants into the fishery purchase 
an existing permit. The effects on profits for these vessels are 
unknown since neither the price of the necessary permit nor the 
alternative operation options (what these vessels might do and what the 
profitability profile of this option is in lieu of participating in the 
for-hire fishery) for these vessels are known. The number of small 
entities this might entail is also unknown.
    Copies of the FRFA are available upon request(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 final rule contains five collection-of-information 
requirements subject to the Paperwork Reduction Act (PRA)--namely, a 
requirement to submit a charter vessel/headboat permit application, 
submission of information on vessel construction, submission of 
information on historical captain eligibility, submission of appeals of 
NMFS' initial denial of a charter vessel/headboat permit, and mandatory 
responses to NMFS' (voluntary) Marine Recreational Fishing Vessel 
Directory Telephone Survey (charter vessels only). The collection of 
this information has been approved by OMB under OMB control number 
0648-0451 for the permit-related information collections and OMB 
control number 0648-0452 for the NMFS' Marine Recreational Fishing 
Vessel Directory Telephone Survey. The public reporting burdens for 
these collections of information are estimated to average 20 minutes, 2 
hours, 2 hours, 5 hours, and 7 minutes 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. In addition, Sec. 622.5(b)(1) 
of this rule revises slightly (i.e., revises the names of the 
applicable permits consistent with this rule) the requirement for 
charter vessel/headboat submission of a fishing trip record if selected 
by the Science and Research Director. The requirement applicable to 
headboats has been approved by OMB under control number 0648-0016 with 
an estimated time per response of 12 minutes. NMFS does not currently 
have PRA approval to select any charter vessels for this reporting and 
would obtain OMB clearance prior to making any selection. Send comments 
regarding these burden estimates or any other aspect of the collection 
of information requirements, including suggestions for reducing the 
burden, to NMFS and to OMB (see ADDRESSES).

List of Subjects in 50 CFR Part 622

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

    Dated: June 24, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 622 is amended 
as follows:

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. 622.4, paragraphs (a)(1) and (g) are revised and 
paragraph (r) is added to read as follows:


Sec. 622.4  Permits and fees.

    (a) * * *
    (1) Charter vessel/headboat permits. (i) For a person aboard a 
vessel that is operating as a charter vessel or headboat to fish for or 
possess, in or from the EEZ, species in any of the following species 
groups, a valid charter vessel/headboat permit for that species group 
must have been issued to the vessel and must be on board--
    (A) Gulf coastal migratory pelagic fish.
    (B) South Atlantic coastal migratory pelagic fish.
    (C) Gulf reef fish.

[[Page 43563]]

    (D) South Atlantic snapper-grouper.
    (ii) See paragraph (r) of this section regarding a moratorium on 
Gulf charter vessel/headboat permits and the associated provisions.
    (iii) See paragraph (r)(12) of this section for an explanation of 
the requirement for the new charter vessel/headboat permit for South 
Atlantic coastal migratory pelagic fish and for procedures for initial 
application and issuance of that permit.
    (iv) A charter vessel or headboat may have both a charter vessel/
headboat permit and a commercial vessel permit. However, when a vessel 
is operating as a charter vessel or headboat, a person aboard must 
adhere to the bag limits. See the definitions of ``Charter vessel'' and 
``Headboat'' in Sec. 622.2 for an explanation of when vessels are 
considered to be operating as a charter vessel or headboat, 
respectively.
* * * * *
    (g) Transfer. A vessel permit, license, or endorsement or dealer 
permit issued under this section is not transferable or assignable, 
except as provided in paragraph (m) of this section for a commercial 
vessel permit for Gulf reef fish, in paragraph (n) of this section for 
a fish trap endorsement, in paragraph (o) of this section for a Gulf 
king mackerel gillnet endorsement, in paragraph (p) of this section for 
a red snapper license, in paragraph (q) of this section for a king 
mackerel permit, in paragraph (r) of this section for a charter vessel/
headboat permit for Gulf coastal migratory pelagic fish or Gulf reef 
fish, in Sec. 622.17(c) for a commercial vessel permit for golden crab, 
or in Sec. 622.18(e) for a commercial vessel permit for South Atlantic 
snapper-grouper. A person who acquires a vessel 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. If the acquired vessel is currently permitted, the application 
must be accompanied by the original permit and a copy of the vessel's 
new USCG documentation or state registration.
* * * * *
    (r) Moratorium on charter vessel/headboat permits for Gulf coastal 
migratory pelagic fish and Gulf reef fish. The provisions of this 
paragraph (r) are applicable through July 29, 2005.
    (1) Applicability. Beginning December 26, 2002, the only valid 
charter vessel/headboat permits for Gulf coastal migratory pelagic fish 
or Gulf reef fish are those that have been issued under the moratorium 
criteria in this paragraph (r). No applications for additional charter 
vessel/headboat permits for these fisheries will be accepted. Existing 
permits may be renewed, are subject to the transferability provisions 
in paragraph (r)(9), and are subject to the requirement for timely 
renewal in paragraph (r)(10) of this section.
    (2) Initial eligibility. Initial eligibility for a charter vessel/
headboat permit for Gulf coastal migratory pelagic fish or Gulf reef 
fish is limited to the following--
    (i) An owner of a vessel that had a valid charter vessel/headboat 
permit for Gulf reef fish or coastal migratory pelagic fish, or whose 
application for such permit had been received by NMFS, at some time 
during the period March 29, 2000, through March 29, 2001, and who has 
such a valid permit on the effective date of the final rule that 
contains this paragraph (r)(2)(i).
    (ii) Any person who can provide NMFS with documentation verifying 
that, prior to March 29, 2001, he/she had a charter vessel or headboat 
under construction and that the associated expenditures were at least 
$5,000 as of that date. If the vessel owner was constructing the 
vessel, the vessel owner must provide NMFS with receipts for the 
required expenditures. If the vessel was being constructed by someone 
other than the owner, the owner must provide NMFS with a copy of the 
contract and/or receipts for the required expenditures.
    (iii) A historical captain, defined for the purposes of paragraph 
(r) of this section as a person who provides NMFS with documentation 
verifying that--
    (A) Prior to March 29, 2001, he/she was issued either a USCG 
Operator of Uninspected Passenger Vessel license (commonly referred to 
as a 6-pack license) or a USCG Masters license and operated, as a 
captain, a federally permitted charter vessel or headboat in the Gulf 
reef fish and/or coastal migratory pelagic fisheries that was not 
permitted in his/her name or the name of a corporation in which he/she 
was a shareholder; and
    (B) At least 25 percent of his/her earned income was derived from 
charter vessel or headboat fishing in one of the years, 1997, 1998, 
1999, or 2000.
    (3) Special conditions applicable to eligibility based on 
historical captain status. A person whose eligibility is based on 
historical captain status will be issued a letter of eligibility by the 
RA. The letter of eligibility may be redeemed through the RA for a 
charter vessel/headboat permit for Gulf coastal migratory pelagic fish 
and/or Gulf reef fish, with a historical captain endorsement. The 
letter of eligibility is valid for the duration of the moratorium; is 
valid only for a vessel of the same authorized passenger capacity as 
the vessel used to document earned income in paragraph (r)(2)(iii)(B) 
of this section; and is valid only for the fisheries certified on the 
application under paragraph (r)(2)(iii)(A) of this section. A charter 
vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf 
reef fish with a historical captain endorsement is valid only on a 
vessel that the historical captain operates as a captain.
    (4) Determination of eligibility based on permit history. NMFS' 
permit records are the sole basis for determining eligibility based on 
permit or application history. An owner of a currently permitted vessel 
who believes he/she meets the permit or application history criterion 
based on ownership of a vessel under a different name, as may have 
occurred when ownership has changed from individual to corporate or 
vice versa, must document his/her continuity of ownership. An owner 
will not be issued initial charter vessel/headboat permits for Gulf 
coastal migratory pelagic fish or Gulf reef fish under the moratorium 
in excess of the number of federally permitted charter vessels and/or 
headboats that he/she owned simultaneously at some time during the 
period March 29, 2000 through March 29, 2001.
    (5) Application requirements and procedures--(i) General. An 
applicant who desires a charter vessel/headboat permit for Gulf coastal 
migratory pelagic fish or Gulf reef fish must submit an application for 
such permit to the RA postmarked or hand-delivered not later than 
October 28, 2002. Application forms are available from the RA. The 
information requested on the application form varies according to the 
eligibility criterion that the application is based upon as indicated 
in paragraphs (r)(5)(ii), (iii), and (iv) of this section; however, all 
applicants must provide a copy of the applicable, valid USCG Operator 
of Uninspected Passenger Vessel license or Masters license and valid 
USCG Certificate of Inspection. Failure to apply in a timely manner 
will preclude permit issuance even when the applicant meets the 
eligibility criteria for such permit.
    (ii) Application based on the prior permit/application history 
criterion. On or about July 29, 2002 implementing this moratorium, the 
RA will mail an application for a charter vessel/headboat permit for 
Gulf coastal migratory pelagic fish and/or Gulf reef fish to each owner 
of a vessel who, according to NMFS' permit records, is eligible based 
on the permit or application history criterion in paragraph (r)(2)(i) 
of this section.

[[Page 43564]]

Information requested on the application is consistent with the 
standard information required in paragraph (b)(3)(ii) of this section. 
The RA will also mail each such owner a notice that his/her existing 
charter vessel/headboat permit(s) for coastal migratory pelagic fish 
and/or Gulf reef fish will expire December 26, 2002 and that the new 
permit(s) required under this moratorium will be required as of that 
date. A vessel owner who believes he/she qualifies for a charter 
vessel/headboat permit for Gulf coastal migratory pelagic fish and/or 
Gulf reef fish based on permit or application history, but who does not 
receive an application from the RA, must request an application from 
the RA and provide documentation of eligibility. The RA will mail 
applications and notifications to vessel owner addresses as indicated 
in NMFS' permit records.
    (iii) Application based on a charter vessel/headboat under 
construction prior to March 29, 2001. A person who intends to obtain a 
charter vessel/headboat permit for Gulf coastal migratory pelagic fish 
and/or Gulf reef fish based on the vessel-under-construction 
eligibility criterion in paragraph (r)(2)(ii) of this section must 
obtain an application from the RA. Information requested on the 
application includes the standard information required in paragraph 
(b)(3)(ii) of this section and the documentation of construction and 
associated costs as specified in paragraph (r)(2)(ii) of this section.
    (iv) Application based on historical captain status. A person who 
intends to obtain a charter vessel/headboat permit for Gulf coastal 
migratory pelagic fish and/or Gulf reef fish based on historical 
captain status must obtain an application from the RA. Information 
requested on the application includes the standard information required 
in paragraph (b)(3)(ii) of this section and documentation of the 
criteria specified in paragraphs (r)(2)(iii)(A)and (B) of this section. 
Such documentation includes income tax records pertinent to verifying 
earned income; a copy of the applicable USCG license and/or Certificate 
of Inspection; and a notarized affidavit signed by a vessel owner 
certifying the period the applicant served as captain of a charter 
vessel or headboat permitted for Gulf reef fish and/or coastal 
migratory pelagic fish, whether the charter vessel or headboat was 
permitted for Gulf reef fish or coastal migratory pelagic fish or both, 
and whether the charter vessel or headboat was uninspected (i.e., 6-
pack) or had a USCG Certificate of Inspection.
    (v) Incomplete applications. If an application that is postmarked 
or hand-delivered in a timely manner is incomplete, the RA will notify 
the applicant of the deficiency. If the applicant fails to correct the 
deficiency within 20 days of the date of the RA's notification, the 
application will be considered abandoned.
    (6) Issuance of initial permits. If a complete application is 
submitted in a timely manner and the applicable eligibility 
requirements specified in paragraph (r)(2) of this section are met, the 
RA will issue a charter vessel/headboat permit for Gulf coastal 
migratory pelagic fish and/or Gulf reef fish or a letter of eligibility 
for such fisheries, as appropriate, and mail it to the applicant not 
later than December 16, 2002.
    (7) Notification of ineligibility. If the applicant does not meet 
the applicable eligibility requirements of paragraph (r)(2) of this 
section, the RA will notify the applicant, in writing, of such 
determination and the reasons for it not later than November 26, 2002.
    (8) Appeal process. (i) An applicant may request an appeal of the 
RA's determination regarding initial permit eligibility, as specified 
in paragraph (r)(2) of this section, by submitting a written request 
for reconsideration to the RA with copies of the appropriate records 
for establishing eligibility. Such request must be postmarked or hand-
delivered within 30 days after the date of the RA's notification of 
ineligibility and may include a request for an oral hearing. If an oral 
hearing is granted, the RA will notify the applicant of the place and 
date of the hearing and will provide the applicant a maximum of 30 days 
prior to the hearing to provide information in support of the appeal.
    (ii) A request for an appeal constitutes the appellant's 
authorization under section 402(b)(1)(F) of the Magnuson-Stevens 
Fishery Conservation and Management Act (16 U.S.C. 1801 et. seq.) for 
the RA to make available to the appellate officer(s) such confidential 
records as are pertinent to the appeal.
    (iii) The RA may independently review the appeal or may appoint one 
or more appellate officers to review the appeal and make independent 
recommendations to the RA. The RA will make the final determination 
regarding granting or denying the appeal.
    (iv) The RA and appellate officer(s) are empowered only to 
deliberate whether the eligibility criteria in paragraph (r)(2) of this 
section were applied correctly. Hardship or other factors will not be 
considered in determining eligibility.
    (v) The RA will notify the applicant of the decision regarding the 
appeal within 30 days after receipt of the request for appeal or within 
30 days after the conclusion of the oral hearing, if applicable. The 
RA's decision will constitute the final administrative action by NMFS.
    (9) Transfer of permits--(i) Permits without a historical captain 
endorsement. A charter vessel/headboat permit for Gulf coastal 
migratory pelagic fish or Gulf reef fish that does not have a 
historical captain endorsement is fully transferable, with or without 
sale of the permitted vessel, except that no transfer is allowed to a 
vessel with a greater authorized passenger capacity than that of the 
vessel from which the permit was transferred. The determination of 
authorized passenger capacity will be based on the USCG Certificate of 
Inspection or USCG Operator of Uninspected Passenger Vessel license 
associated with the vessels involved in the transfer. If no valid 
Certificate of Inspection is provided for a vessel, that vessel will be 
considered an uninspected vessel with an authorized passenger capacity 
restricted to six or fewer passengers.
    (ii) Permits with a historical captain endorsement. A charter 
vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf 
reef fish that has a historical captain endorsement may only be 
transferred to a vessel operated by the historical captain, cannot be 
transferred to a vessel with a higher authorized passenger capacity 
than the vessel from which the permit was transferred, and is not 
otherwise transferable.
    (iii) Procedure for permit transfer. To request that the RA 
transfer a charter vessel/headboat permit for Gulf coastal migratory 
pelagic fish or Gulf reef fish, the owner of a vessel that is to 
receive the transferred permit must complete the transfer information 
on the reverse side of the permit and return the permit and a completed 
application for transfer to the RA.
    (10) Renewal. (i) Renewal of a charter vessel/headboat permit for 
Gulf coastal migratory pelagic fish or Gulf reef fish is contingent 
upon the permitted vessel and/or captain, as appropriate, being 
included in an active survey frame for, and, if selected to report, 
providing the information required in one of the following--
    (A) NMFS' Marine Recreational Fishing Vessel Directory Telephone 
Survey (conducted by the Gulf States Marine Fisheries Commission);
    (B) NMFS' Southeast Headboat Survey (as required by 
Sec. 622.5(b)(1) of this part);
    (C) Texas Parks and Wildlife Marine Recreational Fishing Survey; or

[[Page 43565]]

    (D) A data collection system that replaces one or more of the 
surveys in paragraph (r)(10)(i)(A)(B) or (C) of this section.
    (ii) A charter vessel/headboat permit for Gulf coastal migratory 
pelagic fish or Gulf reef fish that is not renewed or that is revoked 
will not be reissued during the moratorium. A permit is considered to 
be not renewed when an application for renewal, as required, is not 
received by the RA within 1 year of the expiration date of the permit.
    (11) Requirement to display a vessel decal. Upon issuance, renewal, 
or transfer of a charter vessel/headboat permit for Gulf coastal 
migratory pelagic fish or Gulf reef fish, the RA will issue the owner 
of the permitted vessel a vessel decal for the applicable permitted 
fishery or fisheries. The vessel decal must be displayed on the port 
side of the deckhouse or hull and must be maintained so that it is 
clearly visible.
    (12) Requirement and procedure for obtaining an initial charter 
vessel/headboat permit for South Atlantic coastal migratory pelagic 
fish. (i) General. This paragraph (r)(12) explains the necessity of 
requiring and the procedure for obtaining an initial charter vessel/
headboat permit for South Atlantic coastal migratory pelagic fish. 
Formerly, the charter vessel/headboat permit for coastal migratory 
pelagic fish applied in the EEZ of the Gulf and South Atlantic. The 
establishment of a separate charter vessel/headboat permit for Gulf 
coastal migratory pelagic fish under the moratorium established by 
paragraph (r) of this section necessitates that a separate charter 
vessel/headboat permit for South Atlantic coastal migratory pelagic 
fish also be established effective December 26, 2002 and that the 
former charter vessel/headboat permit for coastal migratory pelagic 
fish (applicable in both the Gulf and South Atlantic) be voided 
effective as of that same date. The newly required charter vessel/
headboat permit for South Atlantic coastal migratory pelagic fish is 
not subject to the provisions of the moratorium in paragraphs (r)(1) 
through (11) of this section.
    (ii) Application for and issuance of an initial charter vessel/
headboat permit for South Atlantic coastal migratory pelagic fish--(A) 
Owner of a vessel with a valid charter vessel/headboat permit for 
coastal migratory pelagic fish. On or about June 28, 2002, the RA, 
based on NMFS' permit records, will mail an application for an initial 
charter vessel/headboat permit for South Atlantic coastal migratory 
pelagic fish to each owner of a vessel with a valid charter vessel/
headboat permit for coastal migratory pelagic fish. Any such owner who 
desires an initial charter vessel/headboat permit for South Atlantic 
coastal migratory pelagic fish must submit the completed application to 
the RA. To avoid any lapse in authorization to fish for coastal 
migratory species in the South Atlantic EEZ (i.e., valid permit 
status), such owners must submit the completed application to the RA 
postmarked or hand-delivered not later than September 26, 2002. For 
completed applications received by that deadline, the RA will issue the 
permit no later than December 16, 2002. Applications will be accepted 
at any time, but if received after the deadline, the permit may not be 
issued prior to the date that the permit is first required (i.e., 
December 26, 2002). These special procedures apply only to the 
application and issuance of the initial permit; subsequent permitting 
activities will be conducted in accordance with the standard permitting 
procedures as specified in Sec.  622.4(b) through (l).
    (B) Owner or operator of a vessel without a valid charter vessel/
headboat permit for coastal migratory pelagic fish. An owner or 
operator of a vessel who desires a charter vessel/headboat permit for 
South Atlantic coastal migratory pelagic fish and who does not have a 
valid charter vessel/headboat permit for coastal migratory pelagic fish 
must obtain a permit application from the RA. For additional permitting 
procedures, see Sec. 622.4(b) through (l)of this part.

    3. Effective December 26, 2002, Sec. 622.5(b)(1) is revised to read 
as follows:


Sec. 622.5  Recordkeeping and reporting.

* * * * *
    (b) * * *
    (1) Coastal migratory pelagic fish, reef fish, and snapper-grouper. 
The owner or operator of a vessel for which a charter vessel/headboat 
permit for Gulf coastal migratory pelagic fish, South Atlantic coastal 
migratory pelagic fish, Gulf reef fish, or South Atlantic snapper-
grouper has been issued, as required under Sec. 622.4(a)(1), or whose 
vessel fishes for or lands such coastal migratory pelagic fish, reef 
fish, or snapper-grouper in or from state waters adjoining the Gulf or 
South Atlantic EEZ, who is selected to report by the SRD must maintain 
a fishing record for each trip, or a portion of such trips as specified 
by the SRD, on forms provided by the SRD and must submit such record as 
specified in paragraph (b)(2) of this section.
* * * * *

    4. In Sec. 622.7, paragraphs (b) and (f) are revised to read as 
follows:


Sec. 622.7  Prohibitions.

* * * * *
    (b) Falsify information on an application for a permit, license, or 
endorsement or submitted in support of such application, as specified 
in Sec.  622.4(b), (g), (p), (q), or (r) or in Sec. 622.18.
* * * * *
    (f) Falsify or fail to display and maintain vessel and gear 
identification, as specified in Sec.  622.6(a) and (b) or 
Sec. 622.4(r)(11).
* * * * *

    5. Effective December 26, 2002, Sec. 622.43(a)(3)(ii) is revised to 
read as follows:


Sec. 622.43  Closures.

    (a) * * *
    (3) * * *
    (ii) A person aboard a vessel for which valid charter vessel/
headboat permits for Gulf coastal migratory pelagic fish or South 
Atlantic coastal migratory pelagic fish and a valid commercial vessel 
permit for king or Spanish mackerel have been issued may continue to 
retain fish under a bag and possession limit specified in Sec.  
622.39(c), provided the vessel is operating as a charter vessel or 
headboat.
* * * * *
[FR Doc. 02-16285 Filed 6-27-02; 8:45 am]
BILLING CODE 3510-22-S