[Federal Register Volume 71, Number 96 (Thursday, May 18, 2006)]
[Proposed Rules]
[Pages 28842-28849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7587]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 622 and 635

[Docket No. 060425111-6111-01; I.D. 041906B]
RIN 0648-AN09


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Amendment 18A

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 18A to 
the Fishery Management Plan for the Reef Fish Resources of the Gulf of 
Mexico (Amendment 18A) prepared by the Gulf of Mexico Fishery 
Management Council (Council). This proposed rule would prohibit vessels 
from retaining reef fish caught under the recreational size and bag/
possession limits when commercial quantities of Gulf reef fish are on 
board; adjust the number of persons allowed onboard when a vessel with 
both commercial and charter vessel/headboat reef fish permits and a 
Certificate of Inspection (COI) is fishing commercially; prohibit use 
of Gulf reef fish, except sand perch or dwarf sand perch, as bait in 
any commercial or recreational fishery in the exclusive economic zone 
(EEZ) of the Gulf of Mexico, with a limited exception for crustacean 
trap fisheries; require a NMFS-approved vessel monitoring system (VMS) 
on board vessels with Federal commercial permits for Gulf reef fish, 
including charter vessels/headboats with such commercial permits; and 
require owners and operators of vessels with Federal commercial or 
charter vessel/headboat permits for Gulf reef fish to comply with sea 
turtle and smalltooth sawfish release protocols, possess on board 
specific gear to ensure proper release of such species, and comply with 
guidelines for proper care and release of incidentally caught sawfish 
and sea turtles. NMFS is also proposing to require annual permit 
application rather than application every 2 years (biennial). In 
addition, Amendment 18A would revise the total allowable catch (TAC) 
framework procedure to reflect current practices and terminology. The 
intended effects of this proposed rule are to improve enforceability 
and monitoring in the reef fish fishery in the Gulf of Mexico and to 
reduce mortality of incidentally caught sea turtles and smalltooth 
sawfish.

DATES: Comments must be received no later than 5 p.m., eastern time, on 
July 3, 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-AN09.
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Peter Hood, Southeast Regional Office, NMFS, 263 
13\th\ Avenue South, St. Petersburg, FL 33701.
     Fax: 727-824-5308; Attention: Peter Hood.
    Copies of the Amendment 18A, which includes a Regulatory Impact 
Review (RIR), an Initial Regulatory Flexibility Analysis (IRFA), and an 
Environmental Assessment, 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 Web site at www.gulfcouncil.org.
    Comments regarding the burden-hour estimates or other aspects of 
the collection-of-information requirements contained in this proposed 
rule may be submitted in writing to Jason Rueter at the Southeast 
Regional Office address and to David Rostker, Office of Management and 
Budget (OMB), by e-mail at [email protected], or by fax to 
202-395-7285.

FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone: 727-824-5305; 
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 (FMP) that was prepared by the Council. The FMP was 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

    This proposed rule is intended to resolve several issues related to 
monitoring and enforcement of existing regulations and to reduce 
bycatch mortality of incidentally caught endangered sea turtles and 
smalltooth sawfish. In addition, Amendment 18A would update the 
framework procedure for setting TAC to reflect current terminology and 
stock assessment procedures.

Simultaneous Commercial and Recreational Harvest on a Vessel

    This proposed rule would improve enforceability of the prohibition 
on sale of reef fish caught under the recreational bag limit by 
prohibiting persons aboard a vessel with a commercial reef fish permit 
from retaining reef fish species caught under recreational size and 
possession limits when the vessel has commercial quantities, i.e., fish 
in excess of applicable bag/possession limits, of any Gulf reef fish 
species aboard. By prohibiting retention of recreational reef fish 
catches on a commercial fishing trip, this alternative adds an at-sea 
component to enforcement of the prohibition on sale of recreationally 
caught reef fish. This measure also makes consistent across all reef 
fish the rules regarding retention of recreationally harvested fish on 
a commercial fishing vessel. Regulations for red grouper, gag, and 
black grouper specifically prohibit commercial reef fish vessels from 
possessing those species during the February 15 to March

[[Page 28843]]

15 closed season, but possession of recreational bag limits is allowed 
during a quota closure for those species, and for other reef fish 
during any commercial closure of that species. This action explicitly 
prohibits retention of recreational bag limits of Gulf reef fish on 
board a vessel that possesses commercial quantities of Gulf reef fish.

Maximum Crew Size on a Charter Vessel/Headboat When Fishing 
Commercially

    This proposed rule would resolve the discrepancy between United 
States Coast Guard (USCG) minimum crew size regulations and NMFS' 
maximum crew size regulations, and address potential safety issues 
related to spearfishing under the maximum crew size restrictions of the 
existing NMFS regulations. The USCG regulations currently require a 
minimum of four persons (two captains and two crew) when a vessel with 
a COI is out over 12 hours. NMFS' current fishing regulations limit the 
maximum number of persons on board to three when a vessel with both a 
commercial and charter vessel/headboat permit is fishing commercially. 
Since some charter vessels and headboats must have a COI in order to 
carry passengers for hire, this creates a discrepancy in the 
regulations for dual-permitted vessels, and there is a need to resolve 
this discrepancy. In addition, the Council received a request from the 
operator of a dual-permitted vessel who spearfishes commercially to 
allow a crew size of four persons when commercially spearfishing, so 
that for safety purposes, there could be two persons in the boat while 
there are two divers in the water.
    This proposed rule would address these crew size issues by revising 
the definitions of ``Charter vessel'' and ``Headboat'' to clarify that 
a vessel that has a charter vessel/headboat permit for Gulf reef fish, 
a commercial vessel permit for Gulf reef fish, and a valid COI issued 
by the USCG to carry passengers for hire will not be considered to be 
operating as a charter vessel/headboat provided: (1) It is not carrying 
a passenger who pays a fee; and (2) When underway for more than 12 
hours, that vessel meets but does not exceed the minimum manning 
requirements outlined in its COI for vessels underway over 12 hours; or 
when underway for not more than 12 hours, that vessel meets the minimum 
manning requirements outlined in its COI for vessels underway for not 
more than 12-hours (if any), and does not exceed the minimum manning 
requirements outlined in its COI for vessels that are underway for more 
than 12 hours. A vessel with a commercial vessel permit for king 
mackerel and/or Spanish mackerel and a charter vessel/headboat permit 
for Gulf coastal migratory pelagic fish would still be subject to the 
3-person maximum crew size limit if the vessel has commercial 
quantities of mackerel onboard, regardless of whether the vessel also 
has a Gulf reef fish charter vessel/headboat permit, a commercial 
vessel permit for Gulf reef fish, or commercial quantities of Gulf reef 
fish onboard.

Use of Reef Fish in or from the EEZ for Bait

    It is illegal to cut up reef fish at sea for use as bait. However, 
it is not illegal to use cut up reef fish that were purchased as bait 
on shore, nor is it illegal to use a whole reef fish provided it 
complies with applicable size and bag limits. Allowing cut up reef fish 
to be used when purchased compromises enforcement of the rules 
prohibiting the cutting up of reef fish caught at sea because it is 
difficult to differentiate between the two.
    This proposed rule would prohibit using any species in the reef 
fish management unit or parts thereof, except sand perch and dwarf sand 
perch, as bait in any commercial or recreational fishery. A limited 
exception to this prohibition would be provided for reef fish carcasses 
and offal to be used for bait in trap fisheries for blue crab, stone 
crab, deep-water crab, and spiny lobster, unless such use was otherwise 
restricted.

Vessel Monitoring System

    The Reef Fish FMP contains several area-specific regulations where 
fishing is restricted or prohibited to protect habitat or spawning 
aggregations, or to reduce fishing pressure in areas that are heavily 
fished. Unlike size, bag, and trip limits, where the catch can be 
monitored onshore when a vessel returns to port, area restrictions 
require at-sea enforcement. However, at-sea enforcement of offshore 
area restrictions is difficult due to the distance from shore and 
limited number of patrol vessels. There is a need to improve 
enforceability of area fishing restrictions through electronic methods.
    This proposed rule would require permitted commercial reef fish 
vessels, including charter vessel/headboats with commercial reef fish 
vessel permits even when under charter, to be equipped with an 
operating VMS approved by NMFS for the Gulf reef fish fishery. An 
operating VMS includes an operating mobile transmitting unit on the 
vessel and a functioning communication link between the unit and NMFS 
as provided by a NMFS-approved communication service provider. NMFS 
would publish in the Federal Register a list of approved VMS mobile 
transmitting units and associated communication service providers that 
meet the minimum standards for the Gulf reef fish fishery. Upon 
installation of an approved transmitting unit by a qualified marine 
electrician and activation of the communication services, a vessel 
owner or operator would be required to submit to NMFS, Office of 
Enforcement, Southeast Region, 263 13\th\ Avenue South, St. Petersburg, 
FL 33701, a statement certifying compliance with an installation and 
activation checklist and a vendor-completed installation certification 
checklist that would be available from NMFS. The VMS would be required 
to transmit a signal indicating the vessel's accurate position at least 
once per hour and must function 7 days a week, 24 hours a day unless 
exempted by NMFS under the power down exemption of the NOAA Enforcement 
Draft Vessel Monitoring System Requirements that is included as 
Appendix E to Amendment 18A. Prior to departure for each trip, a vessel 
owner or operator would be required to report to NMFS any fishery the 
vessel would participate in on that trip and the specific type(s) of 
fishing gear, using NMFS-defined gear codes, that would be on board the 
vessel. This information could be reported via NMFS' toll-free number, 
888-219-9228, or via an attached VMS terminal. The vessel owner would 
be responsible for the cost of the VMS equipment, installation, 
maintenance, and month-to-month communications. These VMS requirements 
would apply throughout the Gulf of Mexico. Compliance with the VMS 
requirements would be required 120 days after publication of the final 
rule implementing Amendment 18A.
    Vessels fishing exclusively with fish traps would be exempted from 
the VMS requirement through February 7, 2007, but would remain subject 
to mandatory trip origination and termination reporting requirements 
through February 7, 2007. The use of fish traps in the Gulf reef 
fishery is prohibited after February 7, 2007.

Sea Turtle and Smalltooth Sawfish Bycatch

    NMFS concluded in a biological opinion that reasonable and prudent 
measures should be taken to minimize stress and increase survival rates 
of any sea turtles and smalltooth sawfish taken in the reef fish 
fishery. Therefore, measures are needed to comply with the

[[Page 28844]]

biological opinion and to enhance the protection of endangered sea 
turtles and smalltooth sawfish.
    This proposed rule would require vessels with commercial or charter 
vessel/headboat permits for Gulf reef fish to possess a document 
provided by NMFS titled, ``Careful Release Protocols for Sea Turtle 
Release With Minimal Injury''; post the sea turtle handling and release 
guidelines provided by NMFS on the vessel; follow specified release 
handling measures for any smalltooth sawfish that are caught 
incidentally; and have sea turtle release gear onboard.

Measure Proposed by NMFS

    NMFS is proposing to revise the renewal requirements applicable to 
all Magnuson-Stevens Act vessel permits, licenses, endorsements, and 
dealer permits issued by NMFS' Southeast Regional Office, including 
applicable highly migratory species permits, to require submission of 
an application every year rather than requiring submission only every 
two years (i.e., biennial application). NMFS believes that requiring an 
annual application would: Provide better permit accountability, 
particularly regarding permit transfers; provide for better 
verification of permit application data; and simplify permit financial 
accounting through annual application payments. Fees for annual 
application would be half of the current biennial fee; therefore, there 
would be no increased cost to applicants.

Modifications to the TAC Framework Procedure

    In addition to the measures contained in this proposed rule as 
discussed above, Amendment 18A proposes to modify the framework 
procedure for setting TAC by incorporating the Southeast Data, 
Assessment, and Review (SEDAR) process and adopting minor wording 
changes to update the terminology in the framework. The administrative 
procedures for setting TAC have changed with the development of SEDAR 
to assess stock status. The framework procedure currently specifies 
that the Reef Fish Stock Assessment Panel (RFSAP) evaluate stock 
assessments and recommend acceptable biological catch (ABC) ranges. 
However, the RFSAP has been discontinued, and stock assessments and ABC 
recommendations are now conducted through the SEDAR process. In 
addition, some of the terminology and agency or department names have 
changed since the last revision of the framework procedure and must be 
updated accordingly.

Classification

    At this time, NMFS has not determined whether Amendment 18A, which 
this proposed rule would implement, is 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 this amendment 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: (1) Continue allowing vessels 
to possess both commercial and for-hire vessel permits but disallow 
retention of reef fish species caught under recreational size and 
possession limits when the vessel has commercial harvests of any reef 
fish species aboard; (2) allow a charter vessel/headboat with a USCG 
COI to increase its crew size but not in excess of its minimum manning 
requirements outlined in its COI when fishing for reef fish under its 
commercial fishing license; (3) prohibit the use of any species in the 
reef fish management unit or parts thereof as bait, with certain 
exceptions; (4) require the use of VMS systems Gulf-wide for all 
commercially permitted reef fish vessels, including charter vessels 
with commercial reef fish permits; and (5) require vessels with 
commercial and/or charter vessel/headboat reef fish permits to comply 
with sea turtle and smalltooth sawfish release protocols, possess a set 
of release gear required by the NMFS' Office of Protected Resources 
(OPR), and comply with specific guidelines for the proper care of 
incidentally caught sawfish.
    The main objectives of the proposed rule are to resolve certain 
issues related to monitoring and enforcement of existing regulations 
and reduce bycatch mortality of incidentally caught endangered sea 
turtles and smalltooth sawfish.
    The proposed rule would impact three types of businesses in the 
Gulf reef fish fishery, namely, commercial fishing vessels, 
recreational for-hire vessels, and fish dealers. At present, the 
commercial reef fish permits are under a license limitation program, 
and for-hire reef fish permits are under a moratorium, which is 
proposed to be converted into a license limitation under a separate 
amendment. Hence, no new commercial or for-hire reef fish permits will 
be issued when Amendment 18A is implemented. Currently, there are 1,145 
commercial and 1,574 for-hire active vessel permits for the Gulf reef 
fish fishery. Of these permittees, 237 vessels have both commercial and 
for-hire vessel permits. Reef fish dealers in the Gulf are required to 
obtain permits to handle reef fish caught in the Gulf. There are 
currently 227 dealers permitted to buy and sell reef fish caught in the 
Gulf. The proposed rule is expected to affect these commercial vessels, 
for-hire vessels, and fish dealers. The direct effects on dealers would 
mainly come from the restriction of bait use and only to the extent 
that dealers supply bait to some fishermen. Data are not available to 
quantify the extent of this impact.
    Average annual gross receipts of commercial reef fish vessels in 
the Gulf range from $24,095 for low-volume vertical line vessels to 
$116,989 for high-volume longline vessels. The corresponding annual net 
incomes range from $4,479 for low-volume vertical line vessels to 
$28,466 for high-volume vertical line vessels. Permit records indicate 
that the maximum number of commercial reef fish permits owned by any 
single entity is six, so at the maximum this entity would generate a 
total of $701,934 in gross receipts. For the for-hire vessels, gross 
annual receipts range from $76,960 for charter vessels to $404,172 for 
headboats. The corresponding annual operating profits range from 
$36,758 for charter vessels to $338,209 for headboats. Permit records 
indicate a maximum of 12 permits held by any single entity. At a 
maximum, this entity would generate a total of $4,850,064 in gross 
receipts. 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 $4.0 million 
in the case of commercial harvesting entities or $6.5 million in the 
case of for-hire entities. Relative to these thresholds, both the 
commercial vessel and for-hire vessel entities affected by the proposed 
rule are determined to be small business entities.
    According to a survey of reef fish processors, employment (both 
part and full time) by all reef fish processors in

[[Page 28845]]

the Southeast totaled 700 individuals. There is no information 
regarding employment by fish dealers, although it is safe to assume 
that dealers employ fewer individuals than processors. A seafood 
processor (fish dealer) is a small business if it is independently 
owned and operated, not dominant in its field of operation, and employs 
500 (100) or fewer persons on a full-time, part-time, temporary, or 
other basis. Given the employment information, it is very unlikely for 
any processor that holds a reef fish dealer permit to employ 500 or 
more persons. Although there are no actual data on employment by fish 
dealers, between 1997 and 2000, on average, in excess of 100 reef fish 
dealers operated in the Gulf. It is assumed that all processors must be 
dealers, yet a dealer need not be a processor. Total dealer employment, 
therefore, is expected to be slightly more than 700 individuals. Given 
the number of reef fish dealers and estimates of dealer employment, it 
is unlikely any dealer employs more than 100 persons.
    Based on earnings information, the commercial and recreational 
fishing business entities affected by the proposed rule are determined 
to be small business entities. It is also very likely that most, if not 
all, permitted fish dealers affected by the proposed rule are also 
small business entities. However, as previously noted, this proposed 
rule's direct effects on dealers would mainly come from the restriction 
of bait use and only to the extent that dealers supply bait to some 
fishermen. Data are not available to quantify the extent of this 
impact. Allowing vessels to be dually permitted (commercial and for-
hire) would enable some 227 vessels to continue their usual operations. 
Disallowing these vessels to possess recreationally caught reef fish 
when commercial quantities of reef fish are aboard would improve 
enforcement without significantly impacting the operations of these 
dually permitted vessels. Allowing a for-hire vessel to increase its 
crew size but not in excess of its minimum manning requirements 
outlined in its COI affords flexibility in operation and helps to 
assure safety at sea of the crew, particularly for vessels using 
spearfish gear. This would also eliminate the discrepancy between 
current fishing rules and USCG requirements with respect to crew size 
of for-hire vessels. The prohibition on the use of reef fish, except 
sand perch and dwarf sand perch, as bait reinforces the current ban on 
cutting up reef fish at sea and regulations on bait. The economic 
impact of this provision on commercial and for-hire vessels cannot be 
estimated but is expected to be relatively small. The VMS requirement 
is expected to improve the efficacy of enforcement efforts and the 
effectiveness and timeliness of at-sea rescue efforts. One-time and 
recurring costs would be incurred by all commercial reef fish vessels, 
including for-hire vessels with commercial reef fish permits. First-
year compliance costs range from $2,032 to $3,651 per vessel. These 
costs could be substantial, particularly relative to the profits of 
small-time vessel operations. The various requirements addressing the 
bycatch issue relative to sea turtles and smalltooth sawfish would 
affect all commercial and for-hire vessels in the reef fish fishery. 
Out-of-pocket expenses are estimated between $267 and $459 per vessel. 
These are mainly costs for equipping vessels with the required gear. 
Because some of the gear would last for some time, costs would in 
effect be spread over a number of years.
    The proposed rule would alter some reporting, record-keeping, and 
other compliance requirements. The VMS requirement would affect all 
vessels with commercial and/or for-hire reef fish permits. Including 
installation by a qualified marine electrician, equipment costs range 
from $1,600 to $2,900 per vessel. In addition, yearly communication 
costs range from $432 to $751 per vessel. The proposed rule also 
contains changes to the application process for renewal of permits. 
However, the new requirement for yearly application is not expected to 
alter burden time or costs to respondents. The availability of the 
permit renewal application as an on-line document, as well as the 
reduced burden time attributable to the changes of the income 
qualification affidavit, should offset any increases in burden hours 
generated by the yearly renewal. Permit applications would cost half of 
their previous amount, but would be required twice as often, thereby 
off-setting any changes in overall cost. Compliance with sea turtle and 
smalltooth sawfish release protocols would also affect all vessels with 
commercial and/or for-hire reef fish permits. Costs range from $267 to 
$459 per vessel.
    Other than the provision on vessel manning requirements, which 
removes the conflict between NMFS and USCG regulations, no other 
Federal rules have been identified that would duplicate, overlap, or 
conflict with the proposed rule.
    The proposed rule is expected to affect a substantial number of 
small entities. A total of 908 commercial vessels only, 1,337 for-hire 
vessels only, and 237 commercial/for-hire vessels would be affected. 
Since practically all entities affected by the proposed rule are small 
entities, the issue of disproportional effects on small versus large 
entities does not arise. Mainly because of the VMS requirement, for 
which compliance costs range from $1,600 to $2,900 per vessel, and the 
sea turtle and smalltooth sawfish release protocols, for which 
compliance costs range from $267 to $459 per vessel, the proposed rule 
would have substantial adverse impacts on the profitability of affected 
vessels, particularly the smaller and marginal operations.
    This amendment considered several alternatives to the proposed 
rule. For vessels with both commercial and for-hire reef fish permits 
(dual-permitted vessels), two other alternatives have been considered. 
Alternative 1 (status quo) continues to allow vessels to be dually 
permitted, but it does not resolve the problem of identifying whether 
caught fish are saleable (commercial trip) or not (charter trip). 
Alternative 3, which would preclude a vessel from being dual-permitted, 
would adversely affect the fishing operations of dual-permitted vessels 
by forcing them to divest of either the commercial or for-hire permit. 
Regarding crew size of for-hire vessels fishing under their commercial 
permits, four other alternatives have been considered. Alternative 1 
(status quo), which limits for-hire vessel crew size to 3 persons, 
would not be compatible with minimum USCG manning requirements. 
Alternative 3, which is similar to the proposed rule except for 
spearfishing vessels, would benefit the spearfishing vessels but at the 
same time make the crew size for these vessels incompatible with USCG 
manning requirements. Alternative 4, which allows a maximum crew size 
of 4 persons, would also be incompatible with USCG manning 
requirements. Alternative 5, which removes the maximum crew size 
requirements for dual-permitted vessels, creates the same enforcement 
problem as the status quo and also allows a potential increase in 
fishing effort. Regarding use of reef fish as bait, two other 
alternatives (with various sub-alternatives) have been considered. 
Alternative 1 (status quo), which allows whole reef fish that meet the 
specified requirements for bait or cut-up reef fish purchased at shore 
for bait, complicates the enforcement of the ban on cutting up reef 
fish at sea and potentially increases the mortality of certain reef 
fish species. Alternative 3, which effectively requires enforcement 
officials to identify reef fish species

[[Page 28846]]

used as bait before assessing any potential violation, would tend to 
complicate enforcement. For the VMS requirement, two other alternatives 
have been considered. Alternative 1 (status quo), which does not 
require VMS, is the least costly to small entities, but it does not 
address vital enforcement and rescue-at-sea issues. Similar to the 
proposed rule, Alternative 3 requires VMS, but vessel owners would 
shoulder only the yearly communication costs. If government resources 
are available, this alternative would be better for the industry than 
the proposed rule. Regarding sea turtle and smalltooth sawfish bycatch, 
five other alternatives have been considered. Alternative 1 (status 
quo) is the least costly of all alternatives to small entities, but it 
would not address the bycatch of sea turtles and smalltooth sawfish in 
commercial and for-hire reef fish vessels. Alternative 2, which 
requires commercial vessels to abide by the release protocols in effect 
in the HMS bottom longline fishery, would impose a compliance cost 
ranging from $202 to $380. Alternative 3, which requires the commercial 
reef fish fleet to comply with the more stringent requirement in place 
in the HMS pelagic longline fishery, would carry a compliance cost of 
$712 to $1,282 per vessel. Alternative 4 requires for-hire reef fish 
vessels to comply with either the less stringent release protocol as in 
Alternative 2 or the more stringent release protocol as in Alternative 
3. The corresponding compliance costs per vessel would be similar to 
those in Alternative 2 or 3. Alternative 5, which requires commercial 
and for-hire reef fish vessels to comply with the sea turtle release 
protocols in place for the Atlantic HMS bottom longline vessels, would 
impose a compliance cost of $202 to $380 per vessel.
    This proposed rule contains collection-of-information requirements 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA)--namely, requirements for: (1) VMS installation; (2) completion 
and submission of certification of VMS installation and activation; (3) 
transmission of position reports; (4) fishing activity reports; (5) 
annual maintenance of VMS; (6) submission of requests for power down 
exemptions; and (7) annual renewal of all permits. These requirements 
have been submitted to OMB for approval. The public reporting burdens 
per response for these collections of information are estimated to 
average 4 hours, 15 minutes, 24 seconds, 1 minute, 2 hours, 10 minutes, 
and 15 minutes respectively. These estimates of the public reporting 
burdens include the time for reviewing instructions, searching existing 
data sources, gathering and maintaining the data needed, and completing 
and reviewing the collections 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 on these or any other aspects of the 
collection of information to NMFS and to OMB (see ADDRESSES) and by e-
mail to [email protected] or fax to 202-395-7285.
    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

50 CFR Part 622

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

50 CFR Part 635

    Endangered and threatened species, Fisheries, Fishing, Fishing 
vessels, Foreign relations, Intergovernmental relations, Penalties, 
Statistics, Treaties.

    Dated: May 12, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 622 and 635 
are 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.  622.2, the definitions of ``Charter vessel'' and 
``Headboat'' are revised in alphabetical order to read as follows:


Sec.  622.2  Definitions and acronyms.

* * * * *
    Charter vessel means a vessel less than 100 gross tons (90.8 mt) 
that is subject to the requirements of the USCG to carry six or fewer 
passengers for hire and that engages in charter fishing at any time 
during the calendar year. A charter vessel with a commercial permit, as 
required under Sec.  622.4(a)(2), is considered to be operating as a 
charter vessel when it carries a passenger who pays a fee or when there 
are more than three persons aboard, including operator and crew. 
However, a charter vessel that has a charter vessel permit for Gulf 
reef fish, a commercial vessel permit for Gulf reef fish, and a valid 
Certificate of Inspection (COI) issued by the USCG to carry passengers 
for hire will not be considered to be operating as a charter vessel 
provided--
    (1) It is not carrying a passenger who pays a fee; and
    (2) When underway for more than 12 hours, that vessel meets, but 
does not exceed the minimum manning requirements outlined in its COI 
for vessels underway over 12 hours; or when underway for not more than 
12 hours, that vessel meets the minimum manning requirements outlined 
in its COI for vessels underway for not more than 12-hours (if any), 
and does not exceed the minimum manning requirements outlined in its 
COI for vessels that are underway for more than 12 hours.
* * * * *
    Headboat means a vessel that holds a valid Certificate of 
Inspection (COI) issued by the USCG to carry more than six passengers 
for hire.
    (1) A headboat with a commercial vessel permit, as required under 
Sec.  622.4(a)(2), is considered to be operating as a headboat when it 
carries a passenger who pays a fee or--
    (i) In the case of persons aboard fishing for or possessing South 
Atlantic snapper-grouper, when there are more persons aboard than the 
number of crew specified in the vessel's COI; or
    (ii) In the case of persons aboard fishing for or possessing 
coastal migratory pelagic fish, when there are more than three persons 
aboard, including operator and crew.
    (2)However a vessel that has a headboat permit for Gulf reef fish, 
a commercial vessel permit for Gulf reef fish, and a valid COI issued 
by the USCG to carry passengers for hire will not be considered to be 
operating as a headboat provided--
    (i) It is not carrying a passenger who pays a fee; and
    (ii) When underway for more than 12 hours, that vessel meets, but 
does not

[[Page 28847]]

exceed the minimum manning requirements outlined in its COI for vessels 
underway over 12 hours; or when underway for not more than 12 hours, 
that vessel meets the minimum manning requirements outlined in its COI 
for vessels underway for not more than 12-hours (if any), and does not 
exceed the minimum manning requirements outlined in its COI for vessels 
that are underway for more than 12 hours.
* * * * *
    3. In Sec.  622.4, paragraph (h)(1) is revised, and a sentence is 
added at the end of paragraph (m)(1) to read as follows:


Sec.  622.4  Permits and fees.

* * * * *
    (h) * * *
    (1) Vessel permits, licenses, and endorsements and dealer permits. 
A vessel owner or dealer who has been issued a permit, license, or 
endorsement under this section must renew such permit, license, or 
endorsement on an annual basis. The RA will mail a vessel owner or 
dealer whose permit, license, or endorsement is expiring an application 
for renewal approximately 2 months prior to the expiration date. A 
vessel owner or dealer who does not receive a renewal application from 
the RA by 45 days prior to the expiration date of the permit, license, 
or endorsement must contact the RA and request a renewal application. 
The applicant must submit a completed renewal application form and all 
required supporting documents to the RA prior to the applicable 
deadline for renewal of the permit, license, or endorsement and at 
least 30 days prior to the date on which the applicant desires to have 
the permit made effective. If the RA receives an incomplete 
application, the RA will notify the applicant of the deficiency. If the 
applicant fails to correct the deficiency within 30 days of the date of 
the RA's letter of notification, the application will be considered 
abandoned. A permit, license, or endorsement that is not renewed within 
the applicable deadline will not be reissued.
* * * * *
    (m) * * *
    (1) * * * An application for renewal or transfer of a commercial 
vessel permit for Gulf reef fish will not be considered complete until 
proof of purchase, installation, activation, and operational status of 
an approved VMS for the vessel receiving the permit has been verified 
by NMFS VMS personnel.
* * * * *
    4. In Sec.  622.7, paragraph (ff) is added to read as follows:


Sec.  622.7  Prohibitions.

* * * * *
    (ff) Fail to comply with the protected species conservation 
measures as specified in Sec.  622.10.
    5. Section 622.9 is revised to read as follows:


Sec.  622.9  Vessel monitoring systems (VMSs).

    (a) Requirements for use of a VMS--(1) South Atlantic rock shrimp. 
An owner or operator of a vessel that has been issued a limited access 
endorsement for South Atlantic rock shrimp must ensure that such vessel 
has an operating VMS approved by NMFS for use in the South Atlantic 
rock shrimp fishery on board when on a trip in the South Atlantic. An 
operating VMS includes an operating mobile transmitting unit on the 
vessel and a functioning communication link between the unit and NMFS 
as provided by a NMFS-approved communication service provider.
    (2) Gulf reef fish. An owner or operator of a vessel that has been 
issued a commercial vessel permit for Gulf reef fish, including a 
charter vessel/headboat issued such a permit even when under charter, 
must ensure that such vessel has an operating VMS approved by NMFS for 
use in the Gulf reef fish fishery on board at all times whether or not 
the vessel is underway, unless exempted by NMFS under the power down 
exemption of the NOAA Enforcement Draft Vessel Monitoring System 
Requirements as included in Appendix E to Final Amendment 18A to the 
Fishery Management Plan for the Reef Fish Resources of the Gulf of 
Mexico. The NOAA Enforcement Draft Vessel Monitoring System 
Requirements document is available from NMFS, Office of Enforcement, 
Southeast Region, 263 13\th\ Avenue South, St. Petersburg, FL 33701; 
phone: 800-758-4833. An operating VMS includes an operating mobile 
transmitting unit on the vessel and a functioning communication link 
between the unit and NMFS as provided by a NMFS-approved communication 
service provider. Unless exempted under the power down exemption, a VMS 
must transmit a signal indicating the vessel's accurate position at 
least once an hour, 24 hours a day every day. Prior to departure for 
each trip, a vessel owner or operator must report to NMFS any fishery 
the vessel will participate in on that trip and the specific type(s) of 
fishing gear, using NMFS-defined gear codes, that will be on board the 
vessel. This information may be reported to NMFS using the toll-free 
number, 888-219-9228, or via an attached VMS terminal. The VMS 
requirements of this paragraph apply throughout the Gulf of Mexico. An 
owner or operator of a vessel that has been issued a commercial vessel 
permit for Gulf reef fish with a fish trap endorsement and that fishes 
exclusively with fish traps is exempt from the VMS requirements of this 
paragraph through February 7, 2007.
    (b) Installation and activation of a VMS. Only a VMS that has been 
approved by NMFS for the applicable fishery may be used, and the VMS 
must be installed by a qualified marine electrician. When installing 
and activating the NMFS-approved VMS, or when reinstalling and 
reactivating such VMS, the vessel owner or operator must--
    (1) Follow procedures indicated on a NMFS-approved installation and 
activation checklist for the applicable fishery, which is available 
from NMFS, Office of Enforcement, Southeast Region, 263 13\th\ Avenue 
South, St. Petersburg, FL 33701; phone: 800-758-4833; and
    (2) Submit to NMFS, Office of Enforcement, Southeast Region, 263 
13\th\ Avenue South, St. Petersburg, FL 33701, a statement certifying 
compliance with the checklist, as prescribed on the checklist.
    (3) Submit to NMFS, Office of Enforcement, Southeast Region, 263 
13\th\ Avenue South, St. Petersburg, FL 33701, a vendor-completed 
installation certification checklist, which is available from NMFS, 
Office of Enforcement, Southeast Region, 263 13\th\ Avenue South, St. 
Petersburg, FL 33701; phone: 800-758-4833.
    (c) Interference with the VMS. No person may interfere with, tamper 
with, alter, damage, disable, or impede the operation of the VMS, or 
attempt any of the same.
    (d) Interruption of operation of the VMS. When a vessel's VMS is 
not operating properly, the owner or operator must immediately contact 
NMFS, Office of Enforcement, Southeast Region, 263 13\th\ Avenue South, 
St. Petersburg, FL 33701, phone: 800-758-4833, and follow instructions 
from that office. If notified by NMFS that a vessel's VMS is not 
operating properly, the owner and operator must follow instructions 
from that office. In either event, such instructions may include, but 
are not limited to, manually communicating to a location designated

[[Page 28848]]

by NMFS the vessel's positions or returning to port until the VMS is 
operable.
    (e) Access to position data. As a condition of authorized fishing 
for or possession of fish in a fishery subject to VMS requirements in 
this section, a vessel owner or operator subject to the requirements 
for a VMS in this section must allow NMFS, the USCG, and their 
authorized officers and designees access to the vessel's position data 
obtained from the VMS.
    6. In subpart A, Sec.  622.10 is added to read as follows:


Sec.  622.10  Conservation measures for protected resources.

    (a) Atlantic dolphin and wahoo pelagic longliners. The owner or 
operator of a vessel for which a commercial permit for Atlantic dolphin 
and wahoo has been issued, as required under Sec.  622.4(a)(2)(xii), 
and that has on board a pelagic longline must post inside the 
wheelhouse the sea turtle handling and release guidelines provided by 
NMFS. Such owner or operator must also comply with the sea turtle 
bycatch mitigation measures, including gear requirements and sea turtle 
handling requirements, as specified in Sec.  635.21(c)(5)(i) and (ii) 
of this chapter, respectively. For the purpose of this paragraph, a 
vessel is considered to have pelagic longline gear on board when a 
power-operated longline hauler, a mainline, floats capable of 
supporting the mainline, and leaders (gangions) with hooks are on 
board. Removal of any one of these elements constitutes removal of 
pelagic longline gear.
    (b) Gulf reef fish commercial vessels and charter vessels/
headboats--(1) Sea turtle conservation measures. The owner or operator 
of a vessel for which a commercial vessel permit for Gulf reef fish or 
a charter vessel/headboat permit for Gulf reef fish has been issued, as 
required under Sec. Sec.  622.4(a)(2)(v) and 622.4(a)(1)(i), 
respectively, must post inside the wheelhouse, or within a waterproof 
case if no wheelhouse, a copy of the document provided by NMFS titled, 
``Careful Release Protocols for Sea Turtle Release With Minimal 
Injury,'' and must post inside the wheelhouse, or in an easily viewable 
area if no wheelhouse, the sea turtle handling and release guidelines 
provided by NMFS. Those permitted vessels with a freeboard height of 4 
ft (1.2 m) or less must have on board a dipnet, short-handled dehooker, 
long-nose or needle-nose pliers, bolt cutters, monofilament line 
cutters, and at least two types of mouth openers/mouth gags. This 
equipment must meet the specifications described in 50 CFR 
635.21(c)(5)(i)(E-L) with the following modifications: the dipnet 
handle can be of variable length, only one NMFS approved short-handled 
dehooker is required (i.e., CFR 635.21(c)(5)(i)(G or H)); and life 
rings, seat cushions, life jackets, and life vests may be used as 
alternatives to tires for cushioned surfaces as specified in 50 CFR 
635.21(c)(5)(i)(F). Those permitted vessels with a freeboard height of 
greater than 4 ft (1.2 m) must have on board a dipnet, long-handled 
line clipper, a short-handled and a long-handled dehooker, long-nose or 
needle-nose pliers, bolt cutters, monofilament line cutters, and at 
least two types of mouth openers/mouth gags. This equipment must meet 
the specifications described in 50 CFR 635.21(c)(5)(i) (A-L) with the 
following modifications: only one NMFS approved long-handled dehooker 
(50 CFR 635.21(c)(5)(i)(B or C)) and one NMFS-approved short-handled 
dehooker (50 CFR 635.21(c)(5)(i)(G or H)) are required; and life rings, 
seat cushions, life jackets, and life vests may be used as alternatives 
to tires for cushioned surfaces as specified in 50 CFR 
635.21(c)(5)(i)(F).
    (2) Smalltooth sawfish conservation measures. The owner or operator 
of a vessel for which a commercial vessel permit for Gulf reef fish or 
a charter vessel/headboat permit for Gulf reef fish has been issued, as 
required under Sec. Sec.  622.4(a)(2)(v) and 622.4(a)(1)(i), 
respectively, that incidentally catches a smalltooth sawfish must--
    (i) Keep the sawfish in the water at all times;
    (ii) If it can be done safely, untangle the line if it is wrapped 
around the saw;
    (iii) Cut the line as close to the hook as possible; and
    (iv) Not handle the animal or attempt to remove any hooks on the 
saw, except for with a long-handled dehooker.
    7. In Sec.  622.31, paragraph (n) is added to read as follows:


Sec.  622.31  Prohibited gear and methods.

* * * * *
    (n) Gulf reef fish other than sand perch or dwarf sand perch may 
not be used as bait in any fishery, except that, when purchased from a 
fish processor, the filleted carcasses and offal of Gulf reef fish may 
be used as bait in trap fisheries for blue crab, stone crab, deep-water 
crab, and spiny lobster.
    8. In Sec.  622.34, a sentence is added at the end of paragraph (l) 
to read as follows:


Sec.  622.34  Gulf EEZ seasonal and/or area closures.

* * * * *
    (l) * * * Also note that if commercial quantities of Gulf reef 
fish, i.e., Gulf reef fish in excess of applicable bag/possession 
limits, are on board the vessel, no bag limit of Gulf reef fish may be 
possessed, as specified in Sec.  622.39(a)(5).
* * * * *
    9. In Sec.  622.36, a sentence is added at the end of paragraph (a) 
to read as follows:


Sec.  622.36  Seasonal harvest limitations.

    (a) * * * Also note that if commercial quantities of Gulf reef 
fish, i.e., Gulf reef fish in excess of applicable bag/possession 
limits, are on board the vessel, no bag limit of Gulf reef fish may be 
possessed, as specified in Sec.  622.39(a)(5).
* * * * *
    10. In Sec.  622.37, paragraph (d)(4) is added to read as follows:


Sec.  622.37  Size limits.

* * * * *
    (d) * * *
    (4) A person aboard a vessel that has a Federal commercial vessel 
permit for Gulf reef fish and commercial quantities of Gulf reef fish, 
i.e., Gulf reef fish in excess of applicable bag/possession limits, may 
not possess any Gulf reef fish that do not comply with the applicable 
commercial minimum size limit.
* * * * *
    11. In Sec.  622.38, a sentence is added at the end of paragraph 
(d)(1) introductory text to read as follows:


Sec.  622.38  Landing fish intact.

* * * * *
    (d) * * *
    (1) * * * See Sec.  622.31(m) regarding a prohibition on the use of 
Gulf reef fish as bait.
* * * * *
    12. In Sec.  622.39, paragraph (a)(2)(iii) is revised, and 
paragraph (a)(5) is added to read as follows:


Sec.  622.39  Bag and possession limits.

    (a) * * *
    (2) * * *
    (iii) For a species/species group when its quota has been reached 
and closure has been effected, provided that no commercial quantities 
of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/
possession limits, are on board as specified in Sec.  622.39(a)(5).
* * * * *
    (5) A person aboard a vessel that has a Federal commercial vessel 
permit for

[[Page 28849]]

Gulf reef fish and commercial quantities of Gulf reef fish, i.e., Gulf 
reef fish in excess of applicable bag/possession limits, may not 
possess Gulf reef fish caught under a bag limit.
* * * * *


Sec.  622.41  [Amended]

    13. In Sec.  622.41, paragraph (l)(2) is removed and reserved.
    14. In Sec.  622.43, paragraph (a)(1)(iii) is removed; the 
suspension of paragraph (a)(1)(i) is lifted; and paragraph (a)(1)(i) is 
revised to read as follows:


Sec.  622.43  Closures.

    (a) * * *
    (1) * * *
    (i) Commercial quotas. The application of bag limits described in 
this paragraph (a)(1)(i) notwithstanding, bag limits of Gulf reef fish 
may not be possessed on board a vessel with commercial quantities of 
Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/
possession limits, on board, as specified in Sec.  622.39(a)(5).
    (A) If the recreational fishery for the indicated species is open, 
the bag and possession limits specified in Sec.  622.39(b) apply to all 
harvest or possession in or from the Gulf EEZ of the indicated species, 
and the sale or purchase of the indicated species taken from the Gulf 
EEZ is prohibited. In addition, the bag and possession limits for red 
snapper, when applicable, apply on board a vessel for which a 
commercial permit for Gulf reef fish has been issued, as required under 
Sec.  622.4(a)(2)(v), without regard to where such red snapper were 
harvested.
    (B) If the recreational fishery for the indicated species is 
closed, all harvest or possession in or from the Gulf EEZ of the 
indicated species is prohibited.
* * * * *

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

    15. The authority citation for part 635 continues to read as 
follows:

    Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
    16. In Sec.  635.4, the second sentence of paragraph (m)(1) is 
revised to read as follows:


Sec.  635.4  Permits and fees.

* * * * *
    (m) * * *
    (1) * * * A renewal application must be submitted to NMFS, at an 
address designated by NMFS, at least 30 days before a permit's 
expiration to avoid a lapse of permitted status. * * *
* * * * *
[FR Doc. E6-7587 Filed 5-17-06; 8:45 am]
BILLING CODE 3510-22-S