[Federal Register Volume 68, Number 48 (Wednesday, March 12, 2003)]
[Proposed Rules]
[Pages 11794-11799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5898]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 030303053-3053-01; I.D. 022403C]
RIN 0648-AQ70


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; Revision of Charter 
Vessel and Headboat Permit Moratorium Eligibility Criterion

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues this proposed rule to revise, consistent with the 
actions taken by the Gulf of Mexico Fishery Management Council 
(Council), one of the eligibility criteria for obtaining a charter 
vessel/headboat permit under the moratorium established in 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 proposed rule would also 
reopen the application process for obtaining Gulf charter vessel/
headboat moratorium permits and extend the applicable deadlines; extend 
the expiration dates of valid or renewable open access permits for 
these fisheries; clarify, as requested by the Gulf of Mexico Fishery 
Management Council (Council), a constraint on issuance of historical 
captain permits under the moratorium; and extend the expiration date of 
the moratorium to account for the delay in implementation. The intended 
effect of this proposed rule is to implement the charter vessel/
headboat moratorium in the Gulf of Mexico consistent with the actions 
taken by the Council.

DATES: Comments must be received no later than 5 p.m., eastern time, on 
March 27, 2003.

ADDRESSES: Written comments on the proposed 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 documents supporting this proposed rule, which 
include an environmental assessment, a regulatory impact review (RIR), 
and an initial Regulatory Flexibility Act analysis (IRFA) and copies of 
two minority reports opposing the revision of the eligibility criterion 
and the procedural approach for implementation are available from the 
same address.
    Comments on the collection-of-information requirements contained in 
this 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.

Background

    The Council, in cooperation with the Gulf charter vessel/headboat 
industry, developed Amendments 14 and 20 to address issues of increased 
fishing mortality and fishing effort in the for-hire sector of the 
recreational fishery in the Gulf of Mexico. These amendments require 
charter vessels and headboats operating in the fisheries for Gulf reef 
fish or Gulf coastal pelagic fish to obtain a moratorium permit and 
also establish a 3-year moratorium on issuance of additional permits 
for these for-hire fisheries. 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, the Council and

[[Page 11795]]

NMFS determined that the amendments contained an error relating to the 
permit 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 who should 
have been 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 Council, at its 
September and November 2002 meetings, provided further clarification of 
Council intent regarding the eligibility criteria that resulted in 
corrected Amendments 14 and 20 (corrected Amendments) and requested 
that NMFS implement the necessary revisions.
    On December 17, 2002, NMFS issued an emergency rule (67 FR 77193), 
that deferred the date that the ``moratorium permit'' is required; 
automatically extended the expiration date of valid or renewable ``open 
access'' permits for these fisheries; and extended the deadlines for 
issuance of ``moratorium permits'' and for resolution of appeals. These 
actions allow those applicants who otherwise would have been denied, 
inappropriately, initial access to the fisheries to continue 
participating in these fisheries, pending resolution of the error. In 
addition, those applicants who qualified under the existing regulations 
will be issued ``moratorium permits'' as soon as possible.

Revisions Contained in This Proposed Rule

    This proposed rule would: (1) Revise, consistent with the Council's 
clarification of intent, one of the eligibility criteria for obtaining 
a Gulf charter vessel/headboat moratorium permit; (2) reopen the 
moratorium permit application process with appropriate extension of 
associated deadlines for application, issuance, appeals, etc.; (3) 
further extend, automatically, the expiration dates of valid or 
renewable ``open access'' permits for these fisheries until such time 
that moratorium permits would be required under a final rule 
implementing the corrected Amendments; (4) clarify, consistent with the 
Council's intent, a constraint on issuance of moratorium permits under 
the historical captain provision; and (5) extend the expiration date of 
the moratorium, consistent with the Council's intent, to account for 
the unanticipated delay in its implementation.

Revision of Eligibility Criterion

    One of the three eligibility criteria for obtaining a Gulf charter 
vessel/headboat moratorium permit, as contained in Amendments 14 and 20 
and their implementing regulations, was subsequently determined to be 
inconsistent with the Council's intent. The incorrect criterion was 
worded as follows: `` 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).'' Based upon the Council's 
clarifications at its September and November 2002 meetings, the 
criterion is proposed to be reworded to read as follows: `` An owner of 
a vessel that had a valid charter vessel/headboat permit for Gulf reef 
fish or coastal migratory pelagic fish on March 29, 2001, or held such 
a permit during the preceding year or whose application for such permit 
had been received by NMFS, by March 29, 2001, and was being processed 
or awaiting processing.'' The proposed revision removes the requirement 
to have had a valid permit on the effective date of the final rule that 
implemented Amendments 14 and 20 (i.e., on July 29, 2002) and, 
therefore, would be less restrictive.

Reopening of the Moratorium Permit Application Process

    Because of the error in the eligibility criterion, NMFS is 
proposing to reopen the application process for Gulf charter vessel/
headboat moratorium permits. The procedures for application, 
documentation of eligibility, permit issuance, and appeals are the same 
as the procedures in the existing regulations, except for the revision 
to the eligibility criterion described above and necessary 
reestablishment of applicable deadlines. The complete text of these 
procedures is provided in Sec.  622.4(r)(1) through (r)(8) of this 
proposed rule and is not repeated here. Although this reopening would 
apply to all applicants, those applicants who previously applied under 
the existing regulations and were advised by NMFS that they were 
eligible or have already been issued a moratorium permit, need not, and 
should not, reapply.

Automatic Extension of Expiration Date of Valid Open Access Permits

    This proposed rule would extend, automatically, the expiration 
dates of valid or renewable ``open access'' charter vessel/headboat 
permits for these fisheries until such time that moratorium permits 
would be required under a final rule implementing the corrected 
Amendments. This will allow those applicants who would be ineligible 
for a moratorium permit under the existing regulations, due to the 
error in the eligibility criterion, to participate in these fisheries 
while the error is addressed through the normal rulemaking initiated by 
this proposed rule.

Clarification Regarding Historical Captain Moratorium Permits

    NMFS determined that it needed to clarify that a historical captain 
moratorium permit would not be issued to a person who has a fishery 
permit issued in his/her name. Section 622.4(r)(2)(iii)(A) of this 
proposed rule has been revised to reflect that intent.

Extension of the Expiration Date of the Moratorium

    The Council intended that the moratorium remain in effect for 3 
years from the date of effectiveness of the final rule implementing the 
moratorium, i.e., through July 29, 2005. Because of the recently 
discovered error in the eligibility criterion and subsequent need to 
reopen the moratorium permit application process, final implementation 
of the moratorium would be substantially delayed. Therefore, this 
proposed rule would extend the expiration date of the moratorium 
through a date that would be 3 years from the effective date of the 
final rule that would implement the moratorium as revised by the 
corrected Amendments.

Minority Report

    Two Council minority reports contained objections to the proposed 
revision of the eligibility criterion and to the procedural approach 
for implementing the revision -the September 2002 report was signed by 
two Council members; the December 2002 report was signed by one Council 
member. Copies of the minority reports are available from NMFS (see 
ADDRESSES).

Classification

    At this time, NMFS has not determined whether the corrected 
Amendments that this proposed rule would implement are consistent with 
the national standards of the Magnuson-Stevens Act and other applicable 
laws. NMFS, in making that determination, will take into account the 
data, views, and comments received during the

[[Page 11796]]

comment period on the corrected Amendments.
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    NMFS prepared an IRFA that describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained at the beginning of this section in the preamble 
and in the SUMMARY section of the preamble. This proposed rule would 
not duplicate any other requirements. A summary of the analysis 
follows.
    NMFS prepared an IRFA and concluded that this proposed rule, if 
adopted, would have a significant economic impact on a substantial 
number of small business entities. A summary of the IRFA follows.
    The Magnuson-Stevens Act provides the statutory basis for the rule. 
Under a rule promulgated on June 28, 2002 (67 FR 43558), all for-hire 
operators in the reef fish and/or coastal migratory pelagic fisheries 
in the Gulf of Mexico exclusive economic zone (EEZ) were required to 
have a valid limited access moratorium permit beginning December 26, 
2002. The objective of that 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. Subsequent to 
publication of the rule, it was determined that the amendment did not 
correctly reflect the actions approved by the Council, resulting in the 
unintentional exclusion of 935 historical participants in the fishery. 
As an interim measure prior to correcting this error via normal 
rulemaking, NMFS promulgated an emergency rule that extended several 
dates associated with the moratorium to allow those participants 
erroneously excluded from qualifying for a moratorium permit to 
continue participation in the fishery while the current proposed rule 
is prepared. The primary objective of the proposed rule is, therefore, 
to correct the error associated with the eligibility criterion for the 
for-hire moratorium permit. The proposed rule would revise, consistent 
with the Council's clarification of intent, one of the eligibility 
criteria for obtaining a Gulf charter vessel/headboat moratorium permit 
to remove a restrictive provision requiring that a valid permit was 
held on July 29, 2002. Complementary logistical adjustments, e.g., 
reopening the application process, extension of deadlines, etc., are 
also included.
    The qualification requirements for the initial issuance of the 
moratorium permit will mandate the provision of information necessary 
to establish qualification for the permit, such as information on 
income, record of past participation in the fishery, and proof of the 
time a vessel was under construction. Permit renewal will require that 
permitted vessels participate in the standard data collection programs 
implemented in the region which will require that information be 
maintained on standard vessel operation information, such as trips, 
passenger loads, catch success, etc. All information elements required 
for these actions are standard elements essential to the successful 
operation of the business and should already be collected and 
maintained as standard operating practice by the business. These 
requirements do not require professional skills, and, therefore, may be 
deemed not to be onerous on the affected participants.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified.
    Two categories of impacted entities are presumed, those that 
qualify for the for-hire permit and those that do not. Those who 
qualify for permits fall under two groups; those who qualify based on 
permit records and those who qualify based on the provisions for 
historical captains or vessel-under-construction. Based on permit 
records, an estimated 3,071 permitted for-hire vessels would qualify 
for the moratorium permit, of which 1,917 would qualify for both reef 
fish and coastal migratory pelagic permits, 974 would qualify for only 
the coastal migratory pelagic permit, and 180 would qualify for only 
the reef fish permit. In addition to these vessels, an indeterminate 
number of entities would qualify for the initial issuance of the for-
hire moratorium permit under the historical captain or vessel-under-
construction criteria. In total, the two groups would constitute the 
universe of qualified entities. A precise estimate of this universe 
cannot be provided as, although it can be presumed that all active 
permits will be maintained to allow either sale of the permit or 
continued use, it cannot be determined how many entities will qualify 
under the historical captain or vessel-under-construction criteria. Of 
the 3,071 qualifying vessels, 2,136 vessels qualify under the status 
quo moratorium program, of which 1,373 vessels qualify for both 
permits, 99 vessels qualify for only the reef fish permit, and 664 
vessels qualify for only the coastal migratory pelagic for-hire permit. 
The proposed action would, therefore, allow the qualification of an 
additional 935 vessels, of which 544 vessels would qualify for both 
permits, 81 vessels would qualify for the reef fish permit, and 310 
vessels would qualify for the coastal migratory pelagic permit. These 
935 vessels represent approximately 30 percent of the historic fleet. 
It should be noted that all 3,071 vessels, including the 935 vessels 
that would additionally qualify as a result of the proposed rule, are 
all historical participants in the fishery. This condition is 
reflective of the Council's intent to stabilize participation at 
historical levels.
    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 not in 
excess of $5.0 million per year. The average gross revenues for charter 
boats operating in 1997 was $83,000 for vessels operating in Alabama, 
Mississippi, Louisiana, and 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 from 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. Since all entities operating in the fishery 
as well as the 935 new qualifiers will be affected by the proposed 
rule, the criterion of a substantial number of the small business 
entities being affected by the proposed rule will be met.
    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

[[Page 11797]]

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. However, the time 
expenses are estimated at $13 for charterboat participants (5.5 
interviews x 7 minutes per interview x $20 per hour) and $700 for 
headboat participants (140 logbooks per headboat x 15 minutes per 
logbook x $20 per hour). 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 their passenger 
capacity), or the expected average capacity expansion can be forecast.
    Additionally, the 935 vessels that were previously erroneously 
excluded from qualification for the moratorium permit, and that would 
now be qualified under the proposed action, will be allowed to continue 
their historic participation and accompanying profit performance and in 
addition will experience a substantial increase in profitability over 
what would occur under the status quo since they would have been 
precluded from continued participation under the June 28, 2002 rule.
    Effects on non-qualifying vessels would consist of the effects on 
business profits of not being allowed to continue participation in the 
fishery or enter the fishery without purchasing an existing permit. The 
effects on profits of these vessels is unknown since neither the price 
of the necessary permit nor the alternative business options (what they 
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. 
It is also not possible to estimate the number of small entities this 
would affect.
    The proposed rule would allow qualification for the moratorium 
permit and continued operation of 935 vessels, or approximately 30 
percent of the historic participants, in addition to the 2,136 vessels 
qualified under the status quo moratorium program, plus an unknown 
number of qualifiers under the historic captain and boat-under-
construction provisions. Continued participation by these 935 vessels 
will allow the avoidance of a significant loss in performance and 
profits of these small business entities and the fishery as a whole. It 
is, therefore, concluded that the proposed rule would result in a 
significant economic impact on a substantial number of small entities.
    Ten alternatives to the initial eligibility requirements were 
considered. These were: allowing all persons who held a for-hire permit 
on the date of implementation of the amendment; allowing all persons 
who held a for-hire permit on either September 16, 1999 or November 11, 
1999; using a control date of November 18, 1998 and allowing for 
continuous participation under permit, vessel replacement by current 
permitted participant and issuance of new permit, purchase of permitted 
vessel, or purchase of a new vessel and issuance of a new permit; 
establishment and eligibility requirements for a Class 1 (fully 
transferable) species endorsements; establishment and eligibility 
requirements for a Class 2 (non-transferable) species endorsements; 
historical captain permit/endorsement provisions (2 alternatives); 
boat-under-construction provisions (2 alternatives); and allowing all 
persons who held a for-hire permit on or before January 1, 2002. Since 
the intent of the Council is to accommodate actual participation 
existent at the time of amendment development and the perception was 
strong that many active participants did not possess the required 
permits, control dates more restrictive than the proposed control date 
would increase the negative impacts on the fishery through the 
exclusion of active participants, contrary to the intent of the 
Council. More liberal control dates, however, while reducing the 
potential universe of excluded vessels, would also be contrary to the 
Council's intent of stabilizing participation at the level existent at 
the time of amendment development. The transferability provisions could 
result in contraction of the fleet, contrary to the intent of 
stabilization and would increase the negative impacts on the fishery. 
The alternative historical captain provisions would have increased the 
burden of eligibility and increased the negative impacts. The 
alternative provisions for boats under construction are more 
restrictive than those of the proposed rule because they would have 
made it more difficult for fishermen to qualify for a permit. This 
would have increased the negative impacts on the fishery because more 
permit holders would have been excluded. In summary, the proposed rule 
accomplishes the Council's intent while minimizing impacts.
    Copies of the IRFA and RIR are available upon request(see 
ADDRESSES).
    This proposed rule contains two collection-of-information 
requirements subject to the Paperwork Reduction Act (PRA)--namely a 
requirement to submit a charter vessel/headboat permit application and 
submission of appeals of NMFS' initial denial of a charter vessel/
headboat permit -that have been approved by OMB under control number 
0648-0451. The public reporting burdens for these collections of 
information are estimated to average 20 minutes and 5 hours per 
response, respectively, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collections of information. 
Send comments regarding these burden estimates, or any other aspect of 
these data collections, including suggestions for reducing the burden, 
to NMFS and OMB (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 collection of information displays a currently 
valid OMB control number.

List of Subjects in 50 CFR Part 622

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

    Dated: March 6, 2003.
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 
proposed to be 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, the suspensions of the first sentence of 
paragraph (r)(1), the first sentence of paragraph (r)(6), and paragraph 
(r)(8)(v) are lifted; paragraph (r)(8)(vi) is removed; and paragraph 
(r) introductory text, paragraphs (r)(1) through (r)(8) are revised to 
read as follows:

[[Page 11798]]

Sec.  622.4  Permits and fees.

* * * * *
    (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 the date that is three years after 
the effective date of the final rule implementing the corrected 
Amendments. 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 were valid or 
renewable as of December 17, 2002, will be extended through the date 
that is 150 days after the effective date of the final rule 
implementing the corrected Amendments provided that a permit has not 
been issued under this paragraph (r) for the applicable vessel.
    (1) Applicability. Beginning 150 days after the effective date of 
the final rule implementing the corrected Amendments, 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 on March 
29, 2001, or held such a permit during the preceding year or whose 
application for such permit had been received by NMFS, by March 29, 
2001, and was being processed or awaiting processing.
    (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; operated, as a captain, 
a federally permitted charter vessel or headboat in the Gulf reef fish 
and/or coastal migratory pelagic fisheries; but does not have a fishery 
permit issued in their name; 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 90 
days after the effective date of the final rule implementing the 
corrected Amendments. 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), (r)(5)(iii), and (r)(5)(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 the effective date of the final rule 
implementing the corrected Amendments, 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. 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 150 days after the effective date of the 
final rule implementing the corrected Amendments 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

[[Page 11799]]

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 140 days after the effective date of the final rule 
implementing the corrected Amendments.
    (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 120 days after the 
effective date of the final rule implementing the corrected Amendments.
    (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 45 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 45 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 45 days after receipt of the request for appeal or within 
45 days after the conclusion of the oral hearing, if applicable. The 
RA's decision will constitute the final administrative action by NMFS.
* * * * *
[FR Doc. 03-5898 Filed 3-11-03; 8:45 am]
BILLING CODE 3510-22-S