[Federal Register Volume 68, Number 94 (Thursday, May 15, 2003)]
[Rules and Regulations]
[Pages 26230-26236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12184]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 030303053-3118-02; 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: Final rule.

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SUMMARY: NMFS issues this final rule to implement a corrected Amendment 
for the charter vessel/headboat permit 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 in Amendment 20 to the Fishery Management Plan for the Reef 
Fish Resources of the Gulf of Mexico (Amendment 20). This final rule 
revises, 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. 
This final rule also reopens the application process for obtaining Gulf 
charter vessel/headboat moratorium permits and extends the applicable 
deadlines; extends the expiration dates of valid or renewable open 
access permits for these fisheries; clarifies, as requested by the 
Council, a constraint on issuance of historical captain permits under 
the moratorium; and extends the expiration date of the moratorium to 
account for the delay in implementation. 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 implement the charter vessel/
headboat moratorium in the Gulf of Mexico consistent with the actions 
taken by the Council.

DATES: This final rule is effective June 16, 2003.

[[Page 26231]]


ADDRESSES: Copies of the final regulatory flexibility analysis (FRFA) 
may be obtained from the Southeast Regional Office, NMFS, 9721 
Executive Center Drive N., St. Petersburg, FL 33702.
    Comments 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.
    NMFS approved the corrected Amendment on May 6, 2003. NMFS 
published a proposed rule on March 12, 2003, to implement the corrected 
Amendment and requested comments on the proposed rule through March 27, 
2003 (68 FR 11794, March 12, 2003). The rationale for the measures in 
the corrected Amendment was provided in the proposed rule and is not 
repeated here.

Comments and Responses

    NMFS received a September 2002 minority report signed by two 
Council members, a November 2002 minority report signed by one Council 
member, and nine letters opposing aspects of the corrected amendment 
and/or the proposed rule. Twelve letters in support of the proposed 
rule were received. Neither minority report was filed specifically in 
response to the proposed rule or the corrected amendment, but both 
reports addressed prior Council requests that are related to the 
proposed rule. Therefore, responses to the minority reports are also 
provided here.

September 2002 Minority Report

    A minority report was submitted by two Council members that 
contained objections to the Council's action at its September 2002 
meeting regarding a letter to NMFS which modified a final Council 
motion adopted in March 2001. The September 2002 Council motion stated, 
``To write a letter to NMFS stating that it was the intent of the 
Council under C-1. Eligibility - to provide for fully transferable reef 
fish or coastal migratory pelagic charter/headboat permits to 
individuals/charter vessels who held valid permits on March 29, 2001, 
or who had applied for such permits received in NMFS' office by March 
29, 2001. The intent of the Council was to cap the effort and passenger 
capacity of vessels as of March 29, 2001.'' Following are the minority 
report comments related to this action.
    Comment 1: The action clearly violates the basic rules of statutory 
construction to the detriment of persons who have taken or may take 
actions based on the language of the original Council motion.
    Response: In determining the scope of the measures proposed by the 
Council, NMFS promulgates appropriate regulations in light of the 
entire administrative record. The final rule is the result of a 
detailed review of such record, and the eligibility requirements are 
consistent with Council discussions on the issue. Further, NMFS is not 
construing a statute, but rather a motion made by a Council member, and 
the agency has a duty to examine the record developed by the Council in 
order to clarify ambiguities and resolve inconsistencies in the 
language used. The Council assisted in this endeavor by providing 
clarification of its intent.
    Comment 2: Some remarks from the minutes of the '01 Mobile meeting 
contradict the newly construed meaning of the eligibility provisions of 
the Amendment as stated in the action contested herein. Therefore, the 
present action is not fully supported even on its merits.
    Response: With the exception of the single eligibility criterion, 
which Council staff acknowledged was included in the amendment 
erroneously, and is being removed in this final rule, the record 
supports NMFS' current interpretation of the Mobile motion. The fact 
that some members held different views does not mean that the action is 
not supported by the record. Unanimous votes are fairly uncommon, and a 
majority of the Council concurred with the action.
    Comment 3: Action taken at this meeting was not properly noticed to 
the affected public. Therefore, it will be a surprise move to affected 
parties, many of whom participated in the negotiations relating to 
passage of the original language, and many of whom can be substantially 
adversely impacted by this new move, clearly contrary to the principles 
of public notice contained in the M-S Act [sic] (Magnuson-Stevens Act) 
and other applicable law.
    Response: The published agenda indicated that on Tuesday, September 
10, 2002, the Mackerel Management Committee would hear a ``Status 
Report on the Charter Vessel/Headboat Moratorium Amendment.'' NMFS 
presented this status report, which included a discussion of the fact 
that one of the eligibility requirements included in the amendment 
prepared by staff was not supported elsewhere in the administrative 
record. The Council agreed that NMFS' review was correct and that such 
criterion was in error. As a result, the Council voted to acknowledge 
in writing to the Secretary, its concurrence with this determination, 
along with another suggested clarification which is not part of this 
final rule. No new action was taken by the Council at the September 
2002 meeting for which further public notice was required. Those 
members of the public who had participated throughout the process were 
aware of the inclusion of the erroneous criterion in the final rule, 
and first indicated the possibility of error to NMFS just prior to the 
effective date of the final rule.
    Comment 4: Five Council members who participated in the original 
vote in Mobile were not at this Metairie meeting to tell what they 
thought or knew of the original adopted language.
    Response: It is true that the membership of the Council had 
changed, and all new members abstained from discussing the issue and 
voting on the letter to the Secretary.
    Comment 5: The original action in Mobile was taken as a joint 
effort of the Reef Fish and Coastal Migratory Pelagic Fisheries 
Committees. The charterboat moratorium affects both fisheries. The 
present action at the Metairie meeting seeking to modify the results of 
the joint effort passed through only the Reef Fish Committee, and did 
not pass through a joint committee, nor was the joint committee 
convened for this purpose.
    Response: See the response to comment 3 as to the ``action'' taken 
by the Council. The only committee to hear the update at the September 
2002 meeting was the Coastal Migratory Pelagic committee, but the topic 
was

[[Page 26232]]

addressed at length during full Council session; hence, all persons who 
would have comprised a joint committee had an opportunity to 
participate in the full Council session.
    Comment 6: The Council members and the public did not have, before 
taking this action, any alternatives, impacts, scoping or other facts 
and documents required by the National Environmental Policy Act (NEPA) 
and M-S [sic].
    Response: See the response to comment 3 as to the ``action'' taken 
by the Council. When ``action'' was taken on this amendment in March 
2001, the Council had before it all the pertinent materials and was 
fully compliant with the applicable laws in its consideration and 
approval of the amendment.
    Comment 7: Since the present action will affect a fishery jointly 
shared with the South Atlantic Council, the action, as was the original 
action, must be passed through the South Atlantic Council for approval.
    Response: See the response to comment 3 as to the ``action'' taken 
by the Council. Given that there was no ``action'' taken on the 
amendment itself, only a confirmation of an error in the document, 
which in no way pertained to the South Atlantic Council's area of 
jurisdiction, there was no need for the South Atlantic Council to 
approve it again.
    Comment 8: Allowing this to happen sets a bad precedent as to the 
ability of the fishing industry to rely on anything the Council or NMFS 
does. It should be viewed as an action by the Council at the request of 
NMFS that will seriously erode confidence in the system.
    Response: The provisions in this final rule reflect what was 
discussed at the meetings and what is contained in the record, rather 
than the erroneous eligibility criterion which appeared in the document 
after Council approval. Maintaining erroneous regulations, which differ 
from those discussed at public meetings, would not promote public 
confidence in NMFS or the Council.

November 2002 Minority Report

    A minority report was submitted by one Council member that 
contained objections to the Council's action at its November 2002 
meeting regarding a letter requesting that the Secretary of Commerce 
implement via emergency action a provision that again amends two 
fishery management plans without going through the plan amendment 
process. The Council's November 2002 motion stated ``To write a letter 
to the Secretary of Commerce to implement via emergency action the 
language of the motion adopted by the Council at its September 9-12, 
2002, meeting amended as follows: ``It was the intent of the Council 
that under C-1 - to provide for fully transferable reef fish or coastal 
migratory pelagic charter/headboat permits to individuals/charter 
vessels who held valid permits on March 29, 2001, or held a valid 
permit during the preceding year or had applied for such permits 
received in the NMFS office by March 29, 2001. The intent of the 
Council was to cap the effort and passenger capacity of vessels as of 
March 29, 2001.'' Following are the minority report comments related to 
this action.
    Comment 9: This action was taken without any notice to the public 
or to the affected classes of vessel owners.
    Response: The only action taken at the November 2002 meeting was 
that the Council requested NMFS to implement via emergency rule a 
moratorium containing the eligibility requirements supported by the 
record. While no notice was included in the published agenda, section 
302(i)(2)(C) of the Magnuson-Stevens Act expressly excludes from the 
prior public notice requirement modifications to the published agenda 
addressing emergency actions. As the Magnuson-Stevens Act requires, 
notice of the perceived emergency and need for action was given 
immediately at the meeting.
    Comment 10: The actions by NMFS in publishing the regulations and 
by the Council at both meetings since the Mobile meeting would result 
in regulations that implement something more restrictive than the 
Council Plan Amendment Motion establishing the moratorium.
    Response: NMFS actions in promulgating this final rule will 
implement the moratorium supported by the administrative record as 
developed at the March 2001 Council meeting in Mobile, Alabama. This 
final rule will actually be less restrictive than the prior final rule 
which contained an erroneous eligibility criterion. The erroneous 
eligibility criterion was a requirement to hold a valid permit on the 
effective date of the final rule. Contrary to the assertions contained 
in the minority report, the correction would slightly increase, rather 
than decrease, the number of participants compared to the erroneous 
regulation.
    Comment 11: The requirements relative to emergency action are not 
met by the content of the eligibility measures; only by the pending 
termination of existing permits.
    Response: NMFS is not implementing the moratorium with the 
corrected criteria via emergency rule. The agency did exactly as this 
comment advocates in using an emergency rule to prevent the potential 
economic disruption of the charter industry upon implementation of the 
previous final rule which contained the erroneous criterion.
    Comment 12: No scientific justification or information was given 
upon which to base the Council's actions (contrary to national standard 
2 and other applicable laws).
    Response: The original decision to implement a moratorium was based 
on the best available scientific information regarding the status of 
certain overfished species in the Gulf, which were subject to 
considerable increasing pressure by the expanding charter fleet in the 
region. No new management measures subject to national standard 2 have 
been proposed by NMFS or the Council with regard to the charter permit 
moratorium. Also, see the following response regarding the change to 
the eligibility requirements from the March 2001 Mobile motion.
    Comment 13: Changing the eligibility provisions without following 
the Plan Amendment process will be a serious insult to the M-S [sic] 
Act Council Conservation and Management process.
    Response: NMFS has not changed the eligibility provisions from 
those approved by the Council at the March 2001 meeting in Mobile, 
Alabama. As the record clearly indicates, this final rule merely 
removes a single eligibility criterion that was erroneously included in 
the amendment and thereby incorporated in the prior regulations. As to 
the suggestion that the motion from the March 2001 Mobile meeting made 
eligible all persons who had ever held a permit for either fishery, 
this claim is simply not supported by the record. The maker of the 
motion for the Reef Fish Management Committee stated that the intent of 
the moratorium criteria was to cap effort (hence the number of eligible 
vessels) at 2001 levels. Allowing all persons who ever held such a 
permit for either fishery regardless of the lack of recent 
participation is clearly inconsistent with the concept of capping 
effort at 2001 levels.
    Comment 14: NMFS was (and would be) acting outside its authority in 
publishing implementing regulations changing the eligibility 
requirements of the Council's Plan Amendment motion.
    Response: See the response to the previous comment.
    Comment 15: NEPA was not followed at the Mobile meeting, and that 
let the eligibility requirements of the implementing regulations differ 
from the Motion establishing the permit moratorium system.

[[Page 26233]]

    Response: The duty to satisfy NEPA rests with NMFS and it was 
complied with through the Council's preparation of an Environmental 
Assessment and a finding of no significant impact (FONSI) considering 
the proposed action, a reasonable range of alternatives, and the 
potential impacts of such measures on the human environment.

Other Public Comments

    Comment 16: Eight 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 17: There has been no discussion of the impact or 
profitability of restricting vessel eligibility so that vessels having 
a valid permit at any time from 1987 (when permits were first issued) 
through 3/29/00, but not since, would not be eligible for a moratorium 
permit.
    Response: The economic analysis for the amendment looked at the 
impact of the moratorium on new entrants to the fishery, which for 
present purposes includes this class of individuals. Prior 
participants, who no longer participated in the fishery, would be 
affected in the identical manner as people who had never participated 
and now wanted to enter the fishery.
    Comment 18: In addition to restating previous comments made in the 
minority reports, and on subsequent rules, one individual objected to 
the amendment, specifically the manner in which permit eligibility is 
established.
    Response: As stated in the response to comment 1, NMFS must 
promulgate regulations in light of the administrative record as a 
whole, which supports the approach taken in the final rule. The purpose 
of the moratorium was to cap current effort, while allowing historical 
participants to continue in the fishery, and the final rule providing 
eligibility to owners of vessels who held permits during the qualifying 
period does just this. Owners (or historical captains as the case may 
be) are eligible for permits based on participation with some vessel in 
the respective fishery during the qualifying time period. The Council 
has clearly expressed its intent on this issue, and in light of the 
administrative record as a whole, the approach suggested in these 
comments would conflict with the Council's stated intent and the 
objective of the amendment.

Change From the Proposed Rule

    In Sec.  622.4(r)(3), the third sentence is revised to indicate 
that the letter of eligibility for an historical captain is valid only 
for a vessel of the same or lesser authorized passenger capacity as the 
vessel used to document earned income for eligibility purposes. The 
proposed rule language required that the passenger capacity be the same 
as the vessel used to document earned income (i.e., would not be valid 
for a vessel with lesser passenger capacity). This change from the 
proposed rule is consistent with the Council's intent to cap fishing 
effort (not to discourage or preclude reduction in fishing effort); 
makes the rule language regarding this eligibility and transferability 
provision consistent; and avoids unnecessary administrative procedures 
(i.e., issuance and an otherwise unnecessary transfer to a vessel of 
lesser capacity).

Classification

    The Administrator, Southeast Region, NMFS, determined that the 
corrected Amendment is necessary for the conservation and management of 
the Gulf reef fish and coastal migratory pelagics fisheries and that it 
is consistent with the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    NMFS prepared an FRFA for this final rule pursuant to Sec.  604 of 
the Regulatory Flexibility Act. A summary of the FRFA 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 was 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, pending completion of the normal 
rulemaking process. The primary objective of this final rule is, 
therefore, to correct the error associated with the eligibility 
criterion for the for-hire moratorium permit. This final rule will 
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.
    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-

[[Page 26234]]

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. 
This final rule will, therefore, allow the qualification of an 
additional 935 vessels, of which 544 vessels will qualify for both 
permits, 81 vessels will qualify for the reef fish permit, and 310 
vessels will 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 final 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 $6.0 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 vessels operating in Alabama to 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 final rule, the criterion of a substantial number of the small 
business entities being affected by the 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 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 final rule, 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. 
Since this is an increase in profit and not a decrease, significant 
reductions in profit are not expected to occur.
    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, primarily because it can not be determined how many small 
business entities would seek to enter the fishery in the absence of the 
moratorium.
    This final rule will 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 final rule will result in a significant beneficial 
economic impact on a substantial number of small entities (i.e., the 
935 vessels).
    No significant issues were raised by public comments in response to 
the IRFA. Therefore, no changes were made to the proposed rule as a 
result of such comments.
    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

[[Page 26235]]

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 final rule because it would have been harder 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, this 
final rule accomplishes the Council's intent while minimizing impacts.
    Copies of the FRFA are available upon request (see ADDRESSES).
    This final 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 0648-0205. The 
public reporting burdens for these collections of information are 
estimated to average 20 minutes for a permit application, an additional 
2 hours for additional documentation for an application based on a 
vessel being under construction or on historical captain status, and 5 
hours for an appeal. These estimates include 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: May 9, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
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

0
1. The authority citation for part 622 continues to read as follows:

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

0
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; and paragraph (r) is revised to read as follows:


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 June 16, 2006. 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 November 13, 2003, provided that a permit has 
not been issued under this paragraph (r) for the applicable vessel.
    (1) Applicability. Beginning November 13, 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). 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) of this section, 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 or lesser 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

[[Page 26236]]

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 
September 15, 2003. 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 June 16, 2003, 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 November 13, 2003, 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 November 3, 2003.
    (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 October 14, 2003.
    (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. 03-12184 Filed 5-14-03; 8:45 am]
BILLING CODE 3510-22-S