[Federal Register Volume 67, Number 242 (Tuesday, December 17, 2002)]
[Rules and Regulations]
[Pages 77193-77195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31699]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 021209298-2298-01; I.D. 120402C]
RIN 0648-AQ59


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

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

ACTION: Emergency rule with request for comments.

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SUMMARY: NMFS issues this emergency rule to extend certain permit-
related deadlines contained in the final rule implementing the charter 
vessel/headboat permit moratorium for reef fish and coastal migratory 
pelagic fish in the Gulf of Mexico and to make minor logistical 
adjustments consistent with those deadline extensions, e.g., extend 
effectiveness of some existing permits. Moratorium permit deadlines 
extended by this rule include the December 16, 2002, deadline for 
having a moratorium permit aboard vessels operating in these fisheries; 
and the deadline for a decision regarding appeals related to 
eligibility. These actions are necessary to ensure that participants 
with valid permits in these fisheries are able to continue to 
participate in these fisheries pending resolution of an eligibility 
criterion issue in the amendments and final rule implementing the 
permit moratorium. That eligibility criterion issue will be addressed 
subsequently through the normal rulemaking process that will include 
additional public comment. The intended effect is to maintain 
continuity in these fisheries until an issue regarding permit 
eligibility under the moratorium can be resolved.

EFFECTIVE DATE: This rule is effective December 17, 2002 through June 
16, 2003. Comments must be received no

[[Page 77194]]

later than 5 p.m., eastern time, January 16, 2003.

ADDRESSES: Written comments on this emergency rule must be sent to Phil 
Steele, Southeast Regional Office, NMFS, 9721 Executive Center Drive 
N., St. Petersburg, FL 33702. Comments also may be sent via fax to 727-
570-5583. Comments will not be accepted if submitted via e-mail or 
Internet.
    Copies of an economic analysis supporting this emergency rule may 
be obtained from NMFS' Southeast Regional Office at the address above.

FOR FURTHER INFORMATION CONTACT: Phil Steele, 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 Gulf of Mexico Fishery 
Management Council (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.
    The Council, in cooperation with the Gulf charter vessel/headboat 
industry, developed 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) to 
address issues of increased fishing mortality and fishing effort in the 
for-hire (charter vessel/headboat) sector of the recreational fishery 
in the Gulf of Mexico. NMFS approved Amendments 14 and 20 and 
promulgated the charter vessel/headboat moratorium regulations 67 FR 
43558, June 28, 2002) to implement the amendments.
    However, after a recent review of the administrative record, NMFS 
and the Council have determined that the amendments contained an error 
relating to the eligibility criteria and, therefore, did not correctly 
reflect the action taken by the Council. Thus, the regulations 
implementing the amendments also contained this error, and not all 
persons entitled to receive charter vessel/headboat permits under the 
moratorium approved by the Council would be able to receive permits 
under the erroneous amendments and regulations. The regulations that 
implemented the moratorium require all charter operators in the Gulf of 
Mexico EEZ to have a valid ``moratorium permit,'' as opposed to the 
prior open access charter permit, beginning December 26, 2002.
    This emergency rule will minimize any potential adverse effects 
resulting from the error in the amendments and implementing regulations 
until the issue can be resolved through the normal rulemaking process. 
This rule defers the date that the ``moratorium permit'' is required 
until June 16, 2003. This rule also automatically extends the 
expiration date of valid or renewable ``open access'' permits for these 
fisheries through June 16, 2003, i.e., no additional renewal 
application is required during this period. This emergency rule also 
extends the deadlines for issuance of ``moratorium permits'' and for 
resolution of appeals, consistent with the extension of the date the 
``moratorium permit'' is required. However, those applicants who 
qualified under the existing regulations will be issued ``moratorium 
permits'' as soon as possible. NMFS intends to initiate the normal 
rulemaking process to correct the eligibility criterion error as soon 
as possible.
    For the reasons stated above, this emergency rule meets NMFS policy 
guidelines for the use of emergency rules (62 FR 44421, August 21, 
1997), because the emergency situation results from recently discovered 
circumstances; presents a serious management problem in the fishery; 
and the emergency rule realizes immediate benefits that outweigh the 
value of prior notice, opportunity for public comment, and deliberative 
consideration expected under the normal rulemaking process.
    NMFS prepared an economic evaluation of the regulatory impacts 
associated with this emergency rule, which is summarized as follows.
    The major effect of the emergency rule is the avoidance of severe 
economic loss that would occur through the disruption of the business 
operation of 935 for-hire vessel businesses. Under the current final 
rule implementing a for-hire permit moratorium, 2,037 vessels would 
qualify for the limited access permit and be allowed continued 
operation in the Gulf of Mexico for-hire fishery. An additional 935 
vessels would be disqualified for the permit and, therefore, excluded 
from the fishery due to the errors in the amendments and the 
implementing final rule. These vessels represent 30 percent of the 
Council-intended valid participants in the fishery (3,071 vessels). 
Average receipts per for-hire vessel in the Gulf of Mexico are 
estimated at $64,000-$80,000 per year. Assuming a new amendment 
required less than 180 days for implementation, the emergency rule 
would eliminate the potential loss of $30-$37 million in receipts from 
these vessels. Additionally, approximately 112,000 for-hire angler 
trips would be allowed to be taken, supporting $37.5 million in angler 
expenditures. Due to the avoidance of business cessation and subsequent 
loss of all associated receipts, the emergency rule is determined to 
have a significant positive economic impact on a substantial number of 
small business entities.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that this emergency rule is necessary to minimize 
significant adverse social and economic impacts, (i.e., unintended 
exclusion of participation in these fisheries), that would otherwise 
occur as a result of an error in Amendments 14 and 20 and their 
implementing regulations. The AA has also determined that this rule is 
consistent with the Magnuson-Stevens Act and other applicable laws.
    The emergency rule is determined to be not significant under 
Executive Order 12866. Copies of the economic evaluation are available 
(see ADDRESSES).
    Because there is no requirement to provide for prior notice and 
opportunity for public comment on this rule the analytical requirements 
of the Regulatory Flexibility Act do not apply.
    This emergency rule would defer permit-related deadlines 
established in the final rule implementing the charter vessel/headboat 
permit moratorium in the Gulf of Mexico (67 FR 43558, June 28, 2002) 
until an inconsistency in that rule's permit eligibility criteria can 
be resolved through normal rulemaking procedures, i.e., proposed rule, 
public comment, and final rule. Specifically, the deadlines for 
issuance of a moratorium permit, for the requirement to have a 
moratorium permit aboard a vessel, and for the Regional Administrator's 
(RA) decision regarding appeals are deferred pending subsequent 
rulemaking to resolve the eligibility criterion. This action will allow 
those applicants who would have otherwise been denied initial access to 
the fishery to continue participating in the fishery. Currently, the 
open access permits are set to expire on December 26, 2002. For these 
reasons, the AA finds good cause to waive the

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requirement to provide prior notice and the opportunity for public 
comment, pursuant to authority set forth at U.S.C. 553(b)(B), as such 
procedures would be impracticable. This emergency rule relieves 
restrictions by deferring deadlines for obtaining required permits and 
by extending the effectiveness of certain existing permits to allow 
continued participation in these fisheries. Because this is a 
substantive rule that relieves a restriction, the 30-day delayed 
effectiveness provision of the Administrative Procedures Act does not 
apply.

List of Subjects in 50 CFR Part 622

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

    Dated: December 10, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, 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.


Sec.  622.4  Permits and fees.

    2. In Sec.  622.4:
    a. In paragraph (r) introductory text, a final sentence is added to 
read as follows:
* * * * *
    (r) * * * Notwithstanding the other provisions of this paragraph 
(r), the expiration dates of all charter vessel/headboat permits for 
Gulf reef fish or Gulf coastal migratory pelagic fish that were not 
issued under the provision of this paragraph (r) and that are valid or 
renewable as of December 17, 2002, will be extended through June 16, 
2003, provided that a permit has not been issued under this paragraph 
(r) for the applicable vessel.
* * * * *

    b. In paragraph (r)(1), the first sentence is suspended, and a new 
sentence is added in its place to read as follows:
    (r) * * *
    (1) * * * Beginning June 16, 2003, 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).
* * * * *

    c. In paragraph (r)(6), the first sentence is suspended, and a new 
sentence is added in its place to read as follows:
* * * * *
    (r) * * *
    (6) * * * 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 June 6, 2003.

    d. Paragraph (r)(8)(v) is suspended and paragraph (r)(8)(vi) is 
added to read as follows:
* * * * *
    (r) * * *
    (8) * * *
    (vi) The RA will notify the applicant of the decision regarding the 
appeal by February 18, 2003, 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.
* * * * *

[FR Doc. 02-31699 Filed 12-16-02; 8:45 am]
BILLING CODE 3510-22-M