[Federal Register Volume 71, Number 94 (Tuesday, May 16, 2006)]
[Rules and Regulations]
[Pages 28282-28285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4554]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 060216043-6123-02; 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: Final rule.

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SUMMARY: NMFS issues this final 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 final rule establishes a limited 
access system for charter vessel/headboat (for-hire) permits for the 
reef fish and coastal

[[Page 28283]]

migratory pelagic fisheries in the exclusive economic zone (EEZ) of the 
Gulf of Mexico and will continue to cap participation at current 
levels. In addition, this final rule incorporates a number of minor 
revisions to remove outdated regulatory text and to clarify regulatory 
text. The intended effect of this final rule is to provide for 
biological, social, and economic stability in these for-hire fisheries.

DATES: This final rule is effective June 15, 2006.

ADDRESSES: Copies of the Final Regulatory Flexibility Analysis (FRFA) 
are available from Jason Rueter, NMFS, Southeast Regional Office, 263 
13\th\ Avenue South, St. Petersburg, FL 33701; telephone 727-824-5305; 
fax 727-824-5308; e-mail [email protected].

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.
    NMFS approved Amendments 17 and 25 on May 8, 2006. NMFS published 
the proposed rule to implement Amendments 17 and 25 and requested 
public comment on the proposed rule through April 27, 2006 (71 FR 
12662, March 13, 2006). The rationale for the measures in Amendments 17 
and 25 is provided in the preamble to the proposed rule and is not 
repeated here.

Comments and Responses

    NMFS received one comment on the proposed rule.
    Comment: One commenter requested the Council create a new permit 
for catch and release fishing only for small charter operators (four or 
less passengers).
    Response: The purpose of this rule is to continue the cap on 
participation in the for-hire sector of the respective fisheries. This 
comment is beyond the scope of the proposed rule and, therefore, is not 
addressed. NMFS will forward this comment to the Council for 
consideration of future management actions.

Classification

    The Administrator, Southeast Region, NMFS, determined Amendments 17 
and 25 are necessary for the conservation and management of the reef 
fish and coastal migratory pelagic fisheries and are consistent with 
the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A FRFA was prepared for this action. The FRFA incorporates the 
initial regulatory flexibility analysis (IRFA) and a summary of the 
analyses completed to support the action. No public comments were 
received regarding the IRFA or economic issues. A summary of the 
analyses follows.
    The Magnuson-Stevens Act provides the statutory basis for the final 
rule. The final rule will establish a limited access system on for-hire 
reef fish and coastal migratory pelagics (CMP) permits. In effect, this 
rule will extend indefinitely the current moratorium on these permits, 
which is set to expire on June 16, 2006.
    The main objective of the final rule is to control increases in 
for-hire fishing vessels or passenger capacity while the Council 
determines an appropriate management strategy for the for-hire fishery. 
Such strategy would be in the nature of stabilizing or reducing for-
hire fishing mortality for reef fish and CMP stocks that have 
rebuilding plans or are overfished or undergoing overfishing.
    Permitting of for-hire vessels has been required since 1987 for CMP 
and 1996 for reef fish. It is estimated that, when the current 
moratorium was established in 2003, NMFS issued for-hire moratorium 
permits to 1,857 vessels but at the same time excluded 510 to 899 
vessels. Some of the excluded vessels left the fishery before the 
moratorium took effect. Some of those that were still in operation but 
inadvertently excluded from the moratorium were allowed to re-enter the 
fishery through an emergency action. Both included and excluded vessels 
may be considered to comprise the universe of vessels affected by the 
final 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 CMP 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 this amendment, data from two previous studies (Holland 
et al., 1999; Sutton et al., 1999) 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, then, 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 final

[[Page 28284]]

rule are determined to be small business entities, so the issue of 
disproportionality does not arise. 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 in the for-hire fishery. Those 
included are expected to either maintain or increase their returns from 
for-hire operations as they face less competition. Those excluded would 
continue to forgo all their profits from for-hire operations related to 
reef fish or CMP fisheries in the EEZ, although they may still earn 
profits from their state water for-hire operations or commercial 
fishing operations. For those that mainly depend on fishing trips in 
the EEZ, their profits would be substantially reduced. For those that 
can still operate as commercial fishing vessels or for-hire vessels in 
state waters, the reduction in profits may be deemed to be 
proportionate to their operations in the EEZ. It is likely that profits 
from EEZ operations are either a major component of these vessels' 
total profits or are crucial profit components to remain viable 
business operations. The final rule is, therefore, expected to 
significantly reduce the profits of excluded for-hire vessels. Hence, 
the final rule is expected to significantly reduce the profits of a 
substantial number of small entities. However, three issues are worth 
noting here. First, the emergency rule to re-open the charter permit 
process allowed the re-entry of some vessels excluded by the initial 
moratorium. Second, vessels that remain in the for-hire fishery would 
be in a better position to experience profit increases. Whether such 
profit increases would totally compensate for profit losses from 
excluded vessels cannot be determined. Third, future 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 final rule simply extends 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 will remain the same. Similarly, the 
final rule will not affect current permitting, certifications, and 
other requirements by other Federal agencies, and thus it would not in 
any way conflict or be duplicative of any relevant Federal rules.
    The other alternatives considered in this amendment 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 final rule, although the 
magnitudes involved are lower. The no action alternative would benefit 
vessel operations re-entering the for-hire fishery as well as new 
entrants because they would not have to expend 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 would only exacerbate the excess 
capacity problem in the for-hire fishery, especially that portion under 
the present moratorium: for-hire vessels that are 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. 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 final rule.
    Copies of the FRFA are available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 622

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

    Dated: May 11, 2006.
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.  622.3, 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 National 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).
* * * * *

0
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

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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 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]

0
4. In Sec.  622.42, paragraph (a)(3) is removed.
[FR Doc. 06-4554 Filed 5-15-06; 8:45 am]
BILLING CODE 3510-22-S