[Federal Register Volume 71, Number 48 (Monday, March 13, 2006)]
[Proposed Rules]
[Pages 12662-12665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2389]



[[Page 12662]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 060216043-6043-01; I.D. 021306C]
RIN 0648-AS70


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; Limited Access 
Program for Gulf Charter Vessels and Headboats

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 implement Amendment 17 to 
the Fishery Management Plan for the Coastal Migratory Pelagic Resources 
of the Gulf of Mexico and South Atlantic (Amendment 17) and Amendment 
25 to the Fishery Management Plan for the Reef Fish Resources of the 
Gulf of Mexico (Amendment 25) prepared by the Gulf of Mexico Fishery 
Management Council (Council). This proposed rule would establish a 
limited access system for charter vessel/headboat (for-hire) permits 
for the reef fish and coastal migratory pelagic fisheries in the 
exclusive economic zone (EEZ) of the Gulf of Mexico and would continue 
to cap participation at current levels. In addition, NMFS proposes a 
number of minor revisions to remove outdated regulatory text and to 
clarify regulatory text. The intended effect of this proposed rule is 
to provide for biological, social, and economic stability in these for-
hire fisheries.

DATES: Comments must be received no later than 5 p.m., eastern time, on 
April 27, 2006.

ADDRESSES: You may submit comments on the proposed rule by any of the 
following methods:
     E-mail: [email protected]. Include in the 
subject line the following document identifier: 0648-AS70.
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Jason Rueter, Southeast Regional Office, NMFS, 263 
13\th\ Avenue South, St. Petersburg, FL 33701.
     Fax: 727-824-5308; Attention: Jason Rueter.
    Copies of Amendments 17 and 25, which include a Regulatory Impact 
Review (RIR), an Initial Regulatory Flexibility Analysis (IRFA), and a 
Supplemental Environmental Impact Statement (SEIS), may be obtained 
from the Gulf of Mexico Fishery Management Council, 2203 N. Lois 
Avenue, Suite 1100, Tampa, FL 33607; telephone: 813-348-1630; fax: 813-
348-1711; e-mail: [email protected]. Copies of the amendments 
may also be downloaded from the Council's website at 
www.gulfcouncil.org.

FOR FURTHER INFORMATION CONTACT: Jason Rueter, 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) 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) 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 Coastal Migratory Pelagics FMP 
and Amendment 20 to the Reef Fish FMP 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 required 
charter vessels and headboats operating in the fisheries for Gulf reef 
fish or Gulf coastal migratory pelagic fish to obtain a moratorium 
permit and also established 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. The moratorium, scheduled to expire on June 16, 2006, was 
intended to temporarily stabilize fishing effort in the for-hire sector 
of these fisheries while the Council evaluated a more comprehensive, 
long-term approach.

Limited Access System

    This proposed rule would establish a limited access system in the 
for-hire reef fish and coastal migratory pelagic fisheries in the EEZ 
of the Gulf of Mexico that would continue to cap participation at the 
current level. This action is necessary to ensure the for-hire fishery 
does not revert to open access with resulting inappropriate increases 
in fishing mortality upon expiration of the moratorium. As was the case 
under the moratorium, no additional permits would be issued for these 
fisheries under the limited access system. Under the proposed limited 
access system, an owner of a vessel with a valid or renewable charter 
vessel/headboat permit for Gulf reef fish or Gulf coastal migratory 
pelagic fish on the date Amendments 17 and 25 are approved (assuming 
approval) would be issued the applicable permits under the limited 
access system. There would be no changes to the current procedures for 
application, qualification, issuance, renewal, or transferability of 
these permits. This limited access system would be of indefinite 
duration and would remain in place unless the Council subsequently 
amends the Coastal Migratory Pelagics and Reef Fish FMPs to revise, 
replace, or eliminate it. The Council would review the effectiveness of 
this limited access system every 10 years.

Changes Proposed by NMFS

    In Sec.  622.3, NMFS proposes to revise outdated regulatory 
citations regarding national marine sanctuaries.
    In Sec.  622.4(r), NMFS is proposing to remove outdated text 
related to the original permit moratorium that is no longer relevant. 
In Sec.  622.4(r)(1), NMFS proposes a revision to clarify that the 
basis for determining authorized passenger capacity in relation to 
permit transfers is the authorized passenger capacity specified on the 
face of the permit being transferred, which is the authorized passenger 
capacity of the vessel for which the original permit was issued under 
the moratorium. In Sec.  622.4(r)(2), NMFS is proposing to revise the 
language regarding permit renewal requirements to be more consistent 
with the Council's original intent as expressed in Reef Fish Amendment 
20 and Coastal Migratory Pelagics Amendment 14. The revised language 
clarifies that a selected participant must provide information as 
requested in approved data surveys including, but not limited to, those 
listed in Sec.  622.4(r)(2). The phrase ``but not limited to'' was 
inadvertently

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omitted from the rule implementing the Corrected Amendment.
    In Sec.  622.42, NMFS proposes to remove paragraph (a)(3), which 
was inadvertently and inappropriately retained in a prior revision of 
Sec.  622.42. Paragraph (a)(3) contains outdated text.

Classification

    At this time, NMFS has not determined whether Amendments 17 and 25, 
which this rule would implement, are consistent with 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 comment periods on these amendments and on this 
proposed rule.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an IRFA, as required by section 603 of the Regulatory 
Flexibility Act. The IRFA 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. A copy of the full analysis is 
available from the Council office (see ADDRESSES). A summary of the 
analysis follows.
    The Magnuson-Stevens Act provides the statutory basis for the 
proposed rule. The proposed rule would establish a limited access 
system for Gulf for-hire reef fish and coastal migratory pelagic fish 
permits. In effect, this rule will extend indefinitely the current 
moratorium on these permits that is set to expire on June 16, 2006.
    The main objective of the proposed rule is to control increases in 
for-hire fishing vessels or passenger capacity while the Council 
determines the appropriate long-term management strategy for the for-
hire fishery. Such strategy would be related to stabilizing or reducing 
for-hire fishing mortality for reef fish and coastal migratory pelagic 
fish stocks that have rebuilding plans or are overfished or undergoing 
overfishing.
    Permitting of for-hire vessels has been required since 1987 for 
coastal migratory pelagic fish and 1996 for reef fish. When the current 
moratorium was established in 2003, NMFS issued for-hire moratorium 
permits to 1,857 vessels, but it is estimated that at the same time 510 
to 899 vessels were excluded. Some of the excluded vessels left the 
fishery before the moratorium took effect. Some of the vessels that 
were still in operation but inadvertently excluded from the moratorium 
were allowed to re-enter the fishery through an emergency reopening of 
the application period. Both included and excluded vessels may be 
considered to comprise the universe of vessels affected by the proposed 
rule.
    For-hire vessels with initial moratorium permits operate as charter 
vessels only, headboats only, or charter vessel/headboat combination. 
Some for-hire vessels also operate as commercial fishing vessels at 
certain times of the year. However, most (66.7 percent) operate as 
charter vessels only, and a great majority of these vessels (87.7 
percent) operate in both the coastal migratory pelagic and reef fish 
fisheries. About 69 percent of these vessels are individually owned and 
operated, 27 percent have corporate ownership, and the rest are in some 
other form of ownership. Florida is the homeport state of most vessels, 
followed in order by Texas, Alabama, Louisiana, Mississippi, and other 
states. In the absence of relevant information, vessels excluded from 
the moratorium are deemed to have the same characteristics as those 
that obtained moratorium permits.
    For-hire vessel costs and revenues are not routinely collected. For 
the purpose of these amendments, data from two previous 1999 studies 
were pooled to characterize the financial performance of for-hire 
vessels. Charter vessels charge their fees on a group basis while 
headboats do it on a per-person (head) basis. On average, a charter 
vessel generates $76,960 in annual revenues and $36,758 in annual 
operating profits. An average headboat, on the other hand, generates 
$404,172 in annual revenues and $338,209 in annual operating profits. 
Excluding fixed and other non-operating expenses, both types of for-
hire operations generate positive profits. On average, both charter 
vessels and headboats operate at about 50 percent of their passenger 
capacity per trip.
    The financial performance of charter vessels and headboats varies 
according to the size of operation (passenger capacity) and geographic 
areas. For headboats, revenues range from $298,812 ($263,062 profits) 
for 13 to 30 maximum passenger capacity to $570,376 ($460,760 profits) 
for 61 or greater maximum passenger capacity. For charterboats, 
revenues range from $70,491 ($34,949 profits) for the 6 and under 
maximum passenger capacity to $129,813 ($86,502 profits) for the 7-12 
maximum passenger capacity vessels. Florida charter vessels generate 
annual revenues of $68,233 ($30,249 profits), while their counterparts 
in other areas earn $106,118 in annual revenues ($43,494 profits). 
Florida headboats generate annual revenues of $318,512 ($249,103 
profits), while their counterparts in the other areas earn revenues of 
$630,046 ($542,425 profits). In general, larger for-hire vessels 
generate larger profits, and for-hire vessels in Florida earn lower 
profits than those in other areas.
    A fishing business is considered a small entity if it is 
independently owned and operated and not dominant in its field of 
operation, and if it has annual receipts not in excess of $6 million in 
the case of for-hire entities. Given the data on revenues and profits, 
the for-hire vessels affected by the proposed rule are determined to be 
small business entities.
    All the for-hire vessel operations affected by measures in these 
amendments are considered small entities, so the issue of 
disproportionality does not arise in the present case. In general, 
headboat operations are larger than charter vessel operations in terms 
of revenues and costs as well as vessel and crew sizes and passenger 
capacity. There are also variations in the size of operations within 
the charter vessel and headboat classes.
    There are two types of effects on profitability depending on 
whether a vessel is included or excluded from operating in the EEZ for-
hire fisheries. Those included are expected to either maintain or 
increase their returns from for-hire operations should angler demand 
increase and the number of permits remain capped. Those excluded would 
continue to forgo any potential profits from for-hire operations 
related to reef fish or coastal migratory pelagic fish in the EEZ, 
although they may still earn profits from their state water for-hire 
operations or commercial fishing operations. For those that previously 
depended mainly on fishing trips in the EEZ, their profits would 
continue to be substantially reduced absent purchase of a limited 
access permit. These entities, as well as new entrants into the 
fishery, would have to expend an additional fixed cost in the form of 
purchase cost of the charter permit. This cost would have to be 
explicitly considered by new entrants as an integral part of their 
decision to invest in the for-hire fishery.
    Because the proposed rule would essentially extend the current 
moratorium on the issuance of new for-hire permits, it would not impose 
any additional record keeping or reporting requirements. Also, all the 
compliance requirements currently in place would remain the same. In 
the same vein, the proposed rule would not affect current permitting, 
certifications, and other

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requirements by other Federal agencies, and thus it would not in any 
way conflict with or be duplicative of any relevant Federal rules.
    The other alternatives considered in these amendments are the no 
action alternative, which would allow the moratorium to expire in 2006; 
extension of the moratorium by 5 years; and extension of the moratorium 
by 10 years. The alternatives that would extend the moratorium by 5 
years or 10 years have similar effects as the proposed rule, although 
the magnitudes involved are lower because the moratorium would still be 
time limited. However, those alternatives would require additional 
administrative action and costs to subsequently extend the moratorium 
to meet the Council's objective of capping effort, and those 
alternatives would not provide the regulatory stability needed by the 
for-hire industry to make longer-term business decisions. For these 
reasons, those alternatives were not adopted. The no action alternative 
would benefit vessel operations re-entering the for-hire fishery as 
well as new entrants because they would not have the additional cost of 
purchasing permits. But their entrance into the for-hire fishery would 
impinge on the profitability of existing vessel operations as well as 
potentially increase the harvest and discards of certain species that 
are overfished or undergoing overfishing. A reversion to open access in 
the for-hire fishery would also complicate the management measures the 
Council might adopt for the fishery to address overfishing issues. 
Moreover, the no action alternative can only exacerbate the excess 
capacity problem in the for-hire fishery, especially given that for-
hire vessels are currently operating at about half their capacity.
    Certain measures have already been adopted to mitigate the adverse 
economic impacts of the moratorium. These include: (1) relatively 
liberal qualifying eligibility criteria for the moratorium permits, 
such as the inclusion of most historical participants, historical 
captains, and those who already committed money for the construction of 
vessels; (2) liberal provision for renewing for-hire permits; (3) 
transferability of for-hire permits, except historical captain permits; 
and, (4) an emergency action re-opening the moratorium permit 
application process to participants inadvertently excluded from the 
moratorium, which resulted in issuance of an additional 62 moratorium 
permits but did not alter the conclusions of this analysis. 
Additionally, re-entrants and new entrants can participate in the for-
hire fishery by purchasing permits from current permit holders. These 
features are preserved under the proposed rule.

List of Subjects in 50 CFR Part 622

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

    Dated: March 7, 2006.
James W. Balsiger,
Acting 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.  622.3, paragraph (b) is revised to read as follows:


Sec.  622.3  Relation to other laws and regulations.

* * * * *
    (b) Except for regulations on allowable octocoral, Gulf and South 
Atlantic prohibited coral, and live rock, this part is intended to 
apply within the EEZ portions of applicable National Marine Sanctuaries 
and National Parks, unless the regulations governing such Sanctuaries 
or Parks prohibit their application. Regulations on allowable 
octocoral, Gulf and South Atlantic prohibited coral, and live rock do 
not apply within the EEZ portions of the following Marine Sanctuaries 
and National Parks:
    (1) Florida Keys National Marine Sanctuary (15 CFR part 922 subpart 
P).
    (2) Gray's Reef National Marine Sanctuary (15 CFR part 922 subpart 
I).
    (3) Monitor National Marine Sanctuary (15 CFR part 922 subpart F).
    (4) Everglades National Park (36 CFR 7.45).
    (5) Biscayne National Park (16 U.S.C. 410gg).
    (6) Fort Jefferson National Monument (36 CFR 7.27).
* * * * *
    3. In Sec.  622.4, paragraphs (a)(1)(ii) and (r) are revised to 
read as follows:


Sec.  622.4  Permits and fees.

    (a) * * *
    (1) * * *
    (ii) See paragraph (r) of this section regarding a limited access 
system for charter vessel/headboat permits for Gulf reef fish and Gulf 
coastal migratory pelagic fish.
* * * * *
    (r) Limited access system for charter vessel/headboat permits for 
Gulf coastal migratory pelagic fish and Gulf reef fish. No applications 
for additional charter vessel/headboat permits for Gulf coastal 
migratory pelagic fish or Gulf reef fish will be accepted. Existing 
permits may be renewed, are subject to the restrictions on transfer in 
paragraph (r)(1) of this section, and are subject to the renewal 
requirements in paragraph (r)(2) of this section.
    (1) Transfer of permits--(i) Permits without a historical captain 
endorsement. A charter vessel/headboat permit for Gulf coastal 
migratory pelagic fish or Gulf reef fish that does not have a 
historical captain endorsement is fully transferable, with or without 
sale of the permitted vessel, except that no transfer is allowed to a 
vessel with a greater authorized passenger capacity than that of the 
vessel to which the moratorium permit was originally issued, as 
specified on the face of the permit being transferred. An application 
to transfer a permit to an inspected vessel must include a copy of that 
vessel's current USCG Certificate of Inspection (COI). A vessel without 
a valid COI will be considered an uninspected vessel with an authorized 
passenger capacity restricted to six or fewer passengers.
    (ii) Permits with a historical captain endorsement. A charter 
vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf 
reef fish that has a historical captain endorsement may only be 
transferred to a vessel operated by the historical captain, cannot be 
transferred to a vessel with a greater authorized passenger capacity 
than that of the vessel to which the moratorium permit was originally 
issued, as specified on the face of the permit being transferred, and 
is not otherwise transferable.
    (iii) Procedure for permit transfer. To request that the RA 
transfer a charter vessel/headboat permit for Gulf coastal migratory 
pelagic fish or Gulf reef fish, the owner of the vessel who is 
transferring the permit and the owner of the vessel that is to receive 
the transferred permit must complete the transfer information on the 
reverse side of the permit and return the permit and a completed 
application for transfer to the RA. See paragraph (g)(1) of this 
section for additional transfer-related requirements applicable to all 
permits issued under this section.
    (2) Renewal. (i) Renewal of a charter vessel/headboat permit for 
Gulf coastal migratory pelagic fish or Gulf reef fish is contingent 
upon the permitted vessel and/or captain, as appropriate, being 
included in an active survey frame for, and, if selected to report, 
providing the information required in one of the

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approved fishing data surveys. Surveys include, but are not limited 
to--
    (A) NMFS' Marine Recreational Fishing Vessel Directory Telephone 
Survey (conducted by the Gulf States Marine Fisheries Commission);
    (B) NMFS' Southeast Headboat Survey (as required by Sec.  
622.5(b)(1);
    (C) Texas Parks and Wildlife Marine Recreational Fishing Survey; or
    (D) A data collection system that replaces one or more of the 
surveys in paragraph (r)(2)(i)(A),(B), or (C) of this section.
    (ii) A charter vessel/headboat permit for Gulf coastal migratory 
pelagic fish or Gulf reef fish that is not renewed or that is revoked 
will not be reissued. A permit is considered to be not renewed when an 
application for renewal, as required, is not received by the RA within 
1 year of the expiration date of the permit.
    (3) Requirement to display a vessel decal. Upon renewal or transfer 
of a charter vessel/headboat permit for Gulf coastal migratory pelagic 
fish or Gulf reef fish, the RA will issue the owner of the permitted 
vessel a vessel decal for the applicable permitted fishery or 
fisheries. The vessel decal must be displayed on the port side of the 
deckhouse or hull and must be maintained so that it is clearly visible.


Sec.  622.42  [Amended]

    4. In Sec.  622.42, paragraph (a)(3) is removed.
[FR Doc. 06-2389 Filed 3-10-06; 8:45 am]
BILLING CODE 3510-22-S