[Federal Register Volume 70, Number 62 (Friday, April 1, 2005)]
[Rules and Regulations]
[Pages 16754-16758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6509]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 050314073-5073-01; I.D. 030705B]
RIN 0648-AS99


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; Reopening of the 
Application Process for 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: Temporary rule; emergency action.

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SUMMARY: NMFS issues this emergency rule to provide a limited reopening 
of the application process for the charter vessel/headboat permit 
moratorium for reef fish and coastal migratory pelagic fish in the Gulf 
of Mexico. This reopening allows qualifying persons, who can provide 
documentation of economic harm as a result of inability to obtain a 
moratorium permit, to apply for reconsideration of moratorium permit 
eligibility. In addition, NMFS informs the public of the approval by 
the Office of Management and Budget (OMB) under the Paperwork Reduction 
Act of the collection-of-information requirements contained in this 
emergency rule and publishes the OMB control numbers for those 
collections. The intended effect of this emergency rule is to eliminate 
adverse socio-economic impacts on eligible Gulf charter vessel/headboat 
owners and operators while maintaining the integrity of the permit 
moratorium and its objectives.

DATES: This rule is effective April 1, 2005 through September 28, 2005.

ADDRESSES: Copies of the required regulatory analysis supporting this 
emergency rule may be obtained from the Southeast Regional Office, 
NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702.
    Comments regarding the collection-of-information requirements 
contained in this emergency rule should be sent to Robert Sadler, 
Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. 
Petersburg, FL 33702, and by e-mail to

[[Page 16755]]

[email protected], or by fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Phil Steele, 727-570-5305; fax: 727-
824-5308, 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.

Background

    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. These two amendments proposed to establish a 3-
year moratorium on the issuance of charter vessel or headboat permits 
for the reef fish fishery and coastal migratory pelagics fishery in the 
exclusive economic zone (EEZ) of the Gulf of Mexico. The intended 
effect of these amendments was to cap the number of for-hire vessels 
operating in these fisheries while the Council evaluates the need for 
additional measures that may be necessary to rebuild these fishery 
resources and achieve optimum yield. The objective of capping the 
number of for-hire vessels was to be achieved via restrictive permit 
eligibility criteria based on permit history, participation as a 
historical captain, or vessel under construction parameters. NMFS 
approved Amendments 14 and 20 and promulgated the charter vessel/
headboat permit moratorium regulations (67 FR 43558, June 28, 2002) to 
implement the amendments.
    Soon after implementation of the charter vessel/headboat permit 
moratorium, NMFS and the Council determined that the amendments' 
implementing regulations contained an error relating to one of the 
eligibility criteria and, therefore, did not correctly reflect the 
action taken by the Council. As a result of the erroneous criterion, 
some persons entitled to receive a charter vessel/headboat permit would 
not have been able to obtain a permit. 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. To maintain continuity in these fisheries until 
the error could be resolved through normal rulemaking, NMFS published 
an emergency rule (67 FR 77193, December 17, 2002) to extend the 
effective date of open access permits and to extend the date on which 
moratorium permits were to be required under the original rule. NMFS 
published a proposed rule (68 FR 11794, March 12, 2003) and a final 
rule (68 FR 26230, May 15, 2003) to implement the corrected Amendments 
14 and 20. This final rule corrected the eligibility criterion; 
reopened the application process for obtaining a moratorium permit; 
again extended the effective dates of open access permits; again 
extended the applicable deadlines for applying for and obtaining 
moratorium permits; and extended the expiration date of the moratorium 
to account for the delay in implementation.

Need for This Emergency Rule

    The intended effect of the moratorium was to cap the number of 
charter vessels and headboats operating in the Gulf reef fish and Gulf 
coastal migratory pelagic fisheries. Permit applicants were required to 
submit applications within a 90-day period. Since implementation of the 
moratorium, and particularly more recently, NMFS and the Council have 
become aware via numerous letters and phone calls that a substantial 
number of historical participants in these Gulf fisheries who meet the 
original moratorium permit eligibility requirements failed, for a 
variety of reasons, to submit a timely completed application and, 
therefore, never obtained the permit. As a result, the moratorium has 
had a more restrictive effect than was intended, and an estimated 34-
810 qualifying historical participants may have suffered economic harm 
because they can no longer participate in these fisheries in the same 
manner as they did prior to the moratorium. The potential associated 
economic impact across all potentially affected vessels (34-810) is 
estimated to equate to approximately $2.6 million (34*$77,000) to $62 
million (810*$77,000) in lost receipts and $1.3 million (34*$37,000) to 
$30 million (810*$37,000) in lost profits on an annual basis. These 
estimates would increase if some of the entities are headboats.
    The Council, at its October 2004 meeting, reconsidered this issue 
and passed a motion requesting NMFS to implement an emergency rule to 
reopen the application period for the charter/headboat moratorium in 
the Gulf for 60 days based upon the economic harm to historical 
participants who were unintentionally excluded from the fishery, as 
long as the affected vessels demonstrate eligibility based upon the 
original moratorium permit criteria and some dependence on charter/
headboat fishing in the Gulf. NMFS concurs with the Council's request 
and is issuing this emergency rule to implement the reopening of the 
permit moratorium application process.

Provisions of This Emergency Rule

    Under this emergency rule, the application process for obtaining a 
charter vessel/headboat permit for Gulf reef fish or Gulf coastal 
migratory pelagic fish under the moratorium will be reopened for 120 
days. Although the Council requested a 60-day reopening, NMFS believes 
that 120 days is appropriate to ensure adequate time for notifying 
potential applicants of the reopening and for applicants to compile 
necessary documentation and complete the application process while not 
placing an undue burden on the agency to continually accept new 
applications.

Eligibility Requirements

    Eligibility for charter vessel/headboat permits under this 
reopening would be limited to applicants who: (1) meet one of the three 
original moratorium permit eligibility criteria; (2) were not issued an 
original charter vessel/headboat permit or letter of eligibility under 
the moratorium for which they were eligible; and (3) can document 
economic harm as a result of failure to obtain an original charter 
vessel/headboat permit under the moratorium. See Sec.  622.4(r)(14)(i) 
in the accompanying codified text for a restatement of the original 
moratorium permit eligibility criteria.
    Economic harm, for the purposes of this emergency rule, is based on 
the concept that a person who was eligible to receive a moratorium 
permit, but failed to do so, suffered an actual realized loss as a 
result of the inability to operate in these fisheries after the

[[Page 16756]]

moratorium in the same manner as he/she did prior to the moratorium. 
For example, a person who owned a charter vessel or headboat with an 
open access permit for Gulf reef fish or coastal migratory pelagic fish 
and fished in the Gulf of Mexico during the period March 29, 2000, 
through November 12, 2003, prior to the moratorium, but failed to 
obtain a moratorium permit, would meet the economic harm standard. 
However, a historical captain who never obtained an open access permit 
for these fisheries and who failed to obtain a moratorium permit would 
not meet the standard because the opportunity to participate in the 
same manner as prior to the moratorium (i.e., as a captain) was not 
lost.
    NMFS considered a variety of evidence that would indicate operation 
of a vessel in the Gulf. It was concluded that the most reliable forms 
would include, but not be limited to, proof of:
    1. Issuance of an open access charter vessel/headboat permit for 
Gulf reef fish during the period March 29, 2000, through November 12, 
2003; or
    2. Issuance of an open access charter vessel/headboat permit for 
coastal migratory pelagic fish during the period March 29, 2000, 
through November 12, 2003, and:
    a. A documented homeport in the Gulf for the permitted vessel 
during that period;
    b. Appropriately dated logbooks, passenger manifests, or fuel 
receipts for the permitted vessel that clearly indicate operation 
within the Gulf; or
    c. Appropriately dated receipts for dock rental for the permitted 
vessel from a Gulf-based marina.

Application Requirements and Procedures

    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 Regional Administrator, Southeast 
Region, NMFS (RA) postmarked or hand-delivered not later than August 1, 
2005. Failure to apply by the above deadline will preclude permit 
issuance even when the applicant meets the eligibility criteria for 
such permit. 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 Sec.  622.4(r)(14). An applicant who believes he/she meets the 
permit or application history criterion based on ownership of a vessel 
under a different name, for example, as may have occurred when 
ownership has changed from individual to corporate or vice versa, must 
document his/her continuity of ownership.

Issuance of Initial Permits/Letters of Eligibility

    If a complete application is submitted in a timely manner and the 
applicable eligibility requirements specified in Sec.  622.4(r)(14) 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 
vessel owner or, in the case of a letter of eligibility, the applicant.
    If an eligible applicant does not currently own a vessel to which 
the charter vessel/headboat moratorium permit could be applied, the RA 
will issue such applicant a letter of eligibility. The letter of 
eligibility is valid until redeemed for a moratorium permit or until 
the moratorium expires, whichever occurs first. 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, as appropriate, based on the applicant's eligibility. 
However, a letter of eligibility issued based on eligibility as a 
historical captain is valid only for a vessel of the same or lesser 
authorized passenger capacity as the vessel used to document earned 
income in Sec.  622.4(r)(14)(i)(C)(2) and is valid only for the 
fisheries certified on the application under Sec.  
622.4(r)(14)(i)(C)(1). Further, such letter of eligibility may only be 
redeemed for a charter vessel/headboat permit with a historical captain 
endorsement, and such a permit is only valid on a vessel that the 
historical captain operates as a captain.

Justification for Emergency Rule

    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.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that this emergency rule is necessary to minimize adverse 
social and economic impacts (i.e., unintended exclusion of 
participation in these fisheries). The AA has also determined that this 
rule is consistent with the Magnuson-Stevens Act and other applicable 
laws.
    This emergency rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This emergency rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior notice and opportunity for public comment.
    The AA finds good cause to waive the requirement to provide prior 
notice and opportunity for public comment, pursuant to authority set 
forth at U.S.C. 553(b)(B), as such procedures would be impracticable 
and contrary to the public interest. This is true because further delay 
in implementation will only prolong the adverse impacts to former 
participants currently excluded from participation in the fishery. 
Specifically, over 30 percent of qualified charter vessels and 
headboats have been excluded from continued legal participation in the 
Gulf reef fish and Gulf coastal migratory pelagic fisheries, which has 
resulted in a loss of all income for a substantial portion of the 
fishery, as well as a potential increase in the cost of fishing trips 
to the members of the public who seek to take such fishing trips. 
Although qualified applicants who did not obtain permits can purchase a 
permits from participants in the fishery, these permits have sold for 
approximately $10,000, which is a substantial cost. Because this is a 
substantive rule that relieves a restriction (i.e., the existing 
application deadline), as discussed above, it is not subject to the 30-
day delayed effectiveness provision of the Administrative Procedure Act 
pursuant to 5 U.S.C. 553(d)(1).
    This emergency rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA), namely the charter 
vessel/headboat permit application, submission of information on vessel 
construction, submission of information on historical captain 
eligibility, and submission of documentation of economic harm. These 
requirements have been approved by the Office of Management and Budget 
(OMB) under control number 0648-0520. Public reporting burdens for the 
charter vessel/headboat permit application, submission of information 
on vessel construction, submission of information on historical captain 
eligibility, and submission of documentation of economic harm, are 
estimated to average 20 minutes, 2 hours, 2 hours, and 30 minutes per 
response, respectively, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the

[[Page 16757]]

data needed, and completing and reviewing the collection of 
information. Public comment is sought regarding: whether these proposed 
collections of information are necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; the accuracy of the burden estimates; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collections of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments 
regarding these burden estimates or any other aspect of this data 
collection, including suggestions for reducing the burden, to NMFS (see 
ADDRESSES) and by e-mail to [email protected], or fax to 202-
395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to 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 21, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, 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, suspend the last sentence of paragraph (r) 
introductory text and paragraphs (r)(1) through (r)(8); add two new 
sentences at the end of paragraph (r) introductory text; and add new 
paragraphs (r)(13) through (r)(18) to read as follows:


Sec.  622.4  Permits and fees.

* * * * *
    (r) * * * However, to accommodate an emergency reopening of the 
permit application process, through September 28, 2005, paragraphs 
(r)(1) through (r)(8) of this section have been suspended, and 
paragraphs (r)(13) through (r)(18) of this section that outline 
applicable requirements and procedures related to the reopening of the 
permit application process have been added. The purpose of reopening 
the application process is to mitigate unintended economic harm that 
resulted from qualified applicants' inability to obtain a charter 
vessel/headboat permit under the moratorium and, therefore, the 
inability to participate in those fisheries in the same manner they 
participated prior to the moratorium.
* * * * *
    (13) Applicability. The only valid charter vessel/headboat permits 
for Gulf coastal migratory pelagic fish or Gulf reef fish are those 
that have been or are issued under the moratorium criteria in this 
paragraph (r). 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.
    (14) Eligibility requirements for a permit under the reopening of 
the moratorium application process. Eligibility for a charter vessel/
headboat permit for Gulf coastal migratory pelagic fish or Gulf reef 
fish under this reopening of the application process is limited to 
applicants who were not issued an original charter vessel/headboat 
permit or a letter of eligibility under the moratorium for which they 
were eligible based on one of the three original moratorium permit 
eligibility criteria as specified in paragraphs (r)(14)(i)(A), 
(r)(14)(i)(B), or (r)(14)(i)(C) of this section and who can document 
economic harm, as specified in paragraph (r)(14)(ii) of this section, 
as a result of failure to obtain an original charter vessel/headboat 
permit under the moratorium.
    (i) Original moratorium permit eligibility criteria. The original 
moratorium permit eligibility criteria include--
    (A) 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.
    (B) 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.
    (C) A historical captain, defined for the purposes of this 
paragraph (r) as a person who provides NMFS with documentation 
verifying that -
    (1) 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 his/her name; and
    (2) At least 25 percent of his/her earned income was derived from 
charter vessel or headboat fishing in one of the following years: 1997, 
1998, 1999, or 2000.
    (ii) Proof of economic harm. Economic harm, for the purposes of 
this emergency rule, is based on the concept that a person suffered an 
actual realized loss as a result of the inability to operate in these 
fisheries after the moratorium in the same manner as he/she did prior 
to the moratorium. Proof of economic harm would include, but would not 
be limited to, proof of -
    (A) Issuance of an open access charter vessel/headboat permit for 
Gulf reef fish during the period March 29, 2000, through November 12, 
2003.
    (B) Issuance of an open access charter vessel/headboat permit for 
coastal migratory pelagic fish during the period March 29, 2000, 
through November 12, 2003, and--
    (1) A documented homeport in the Gulf for the permitted vessel 
during that period;
    (2) Appropriately dated logbooks, passenger manifests, or fuel 
receipts for the permitted vessel that clearly indicate a location 
within the Gulf; or
    (3) Appropriately dated receipts for dock rental for the permitted 
vessel from a Gulf-based marina.
    (15) Application requirements and procedures under the reopening of 
the permit application process. 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 August 1, 2005. An 
applicant who believes he/she meets the permit or application history 
criterion based on ownership of a vessel under a different name, for 
example, as may have occurred when ownership has changed from 
individual to corporate or

[[Page 16758]]

vice versa, must document his/her continuity of ownership. 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 paragraph (r)(14) 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.
    (16) 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 submit an 
application that corrects the deficiency and that is received by the RA 
within 60 days of the date of the RA's notification, the application 
will be considered abandoned.
    (17) Issuance of permits. If an applicant submits a complete 
application in a timely manner and the applicable eligibility 
requirements specified in paragraph (r)(14) 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 vessel owner or, 
in the case of a letter of eligibility, to the applicant. If an 
eligible applicant does not currently own a vessel to which the charter 
vessel/headboat moratorium permit could be applied, the RA will issue 
such applicant a letter of eligibility. The letter of eligibility is 
valid until redeemed for a moratorium permit or until the moratorium 
expires, whichever occurs first. 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, as appropriate, 
based on the applicant's eligibility. However, a letter of eligibility 
issued based on eligibility as a historical captain 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)(14)(i)(C)(2) of 
this section and is valid only for the fisheries certified on the 
application under paragraph (r)(14)(i)(C)(1) of this section. Further, 
such letter of eligibility may be redeemed only for a charter vessel/
headboat permit with a historical captain endorsement, and such a 
permit is valid only on a vessel that the historical captain operates 
as a captain.
    (18) Notification of ineligibility. If the applicant does not meet 
the applicable eligibility requirements of paragraph (r)(14) of this 
section, the RA will notify the applicant, in writing, of such 
determination and the reasons for it as soon as possible, but not later 
than September 28, 2005. The RA's decision will constitute the final 
administrative action by NMFS regarding permit eligibility.

[FR Doc. 05-6509 Filed 3-31-05; 8:45 am]
BILLING CODE 3510-22-S