[Federal Register Volume 77, Number 138 (Wednesday, July 18, 2012)]
[Proposed Rules]
[Pages 42251-42254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17495]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 120416008-2219-01]
RIN 0648-BB72


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Amendment 34

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 proposes regulations to implement management measures 
described in Amendment 34 to the Fishery Management Plan for the Reef 
Fish Resources of the Gulf of Mexico (FMP) prepared by the Gulf of 
Mexico Fishery Management Council (Council). If implemented, this rule 
would remove the income qualification requirements for renewal of Gulf 
of Mexico (Gulf) commercial reef fish permits and increase the maximum 
crew size to four for dual-permitted vessels (i.e. vessels that possess 
both a charter vessel/headboat permit for Gulf reef fish and a 
commercial vessel permit for Gulf reef fish) that are fishing 
commercially. The intent of this rule is to remove permit

[[Page 42252]]

requirements that may no longer be applicable to current commercial 
fishing practices and to improve vessel safety in the Gulf reef fish 
fishery.

DATES: Written comments must be received on or before August 17, 2012.

ADDRESSES: You may submit comments on the proposed rule identified by 
``NOAA-NMFS-2012-0025'' by any of the following methods:
     Electronic submissions: Submit electronic comments via the 
Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
     Mail: Steve Branstetter, Southeast Regional Office, NMFS, 
263 13th Avenue South, St. Petersburg, FL 33701.
    Instructions: All comments received are a part of the public record 
and NMFS will post them to http://www.regulations.gov without change. 
All Personal Identifying Information (for example, name, address, etc.) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit Confidential Business Information or otherwise sensitive or 
protected information.
    To submit comments through the Federal e-Rulemaking Portal: http://www.regulations.gov, enter ``NOAA-NMFS-2011-0025'' in the search field 
and click on ``search''. After you locate the proposed rule, click the 
``Submit a Comment'' link in that row. This will display the comment 
web form. You can enter your submitter information (unless you prefer 
to remain anonymous), and type your comment on the web form. You can 
also attach additional files (up to 10MB) in Microsoft Word, Excel, 
WordPerfect, or Adobe PDF file formats only.
    Comments received through means not specified in this rule will not 
be considered.
    For further assistance with submitting a comment, see the 
``Commenting'' section at http://www.regulations.gov/#!faqs or the Help 
section at http://www.regulations.gov.
    Electronic copies of Amendment 34, which includes an environmental 
assessment and a regulatory impact review, may be obtained from the 
Southeast Regional Office Web site at http://sero.nmfs.noaa.gov/sf/GrouperSnapperandReefFish.htm.
    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 Anik Clemens, Southeast Regional 
Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701; and OMB, 
by email at OIRA [email protected], or by fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Steve Branstetter, Southeast Regional 
Office, NMFS, telephone 727-824-5305; email: 
[email protected].

SUPPLEMENTARY INFORMATION: NMFS and the Council manage the Gulf reef 
fish fishery under the FMP. The Council prepared the FMP and NMFS 
implements the FMP under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magunson-Stevens Act) by regulations 
at 50 CFR part 622.
    This rule would implement Amendment 34 to the FMP, which addresses 
administrative issues relative to earned income requirements for the 
renewal of commercial Gulf reef fish permits and to the maximum crew 
size for dual-permitted vessels while commercially fishing. Due to 
recent changes in the commercial sector of the Gulf reef fish fishery 
the income qualification requirements and the crew size limit 
regulations may no longer effectively serve their original purposes.

Measures Contained in This Proposed Rule

    If implemented, this rule would eliminate the income qualification 
requirements for renewal of commercial Gulf reef fish permits and 
increase the maximum crew size from three to four for dual-permitted 
vessels.

Eliminating the Income Qualification Requirements for Commercial Gulf 
Reef Fish Permits

    Under the current regulations, an applicant renewing a commercial 
vessel permit for Gulf reef fish must attest that greater than 50 
percent of his/her earned income is derived from commercial fishing 
(i.e. harvest and first sale of fish) or charter fishing during either 
of the 2 calendar years preceding the application. Applicants must 
complete the Income Qualification Affidavit section on the Federal 
Permit Application for Vessels Fishing in the EEZ (Federal Permit 
Application) as proof of meeting permit income qualification 
requirements for commercial Gulf reef fish vessel permits.
    This rule proposes to eliminate the income requirement because it 
is no longer applicable to current commercial fishing practices. The 
income requirement is not compatible with recent regulatory changes in 
the Gulf reef fish fishery, such as the implementation of individual 
fishing quota (IFQ) programs for red snapper and grouper/tilefish 
species, which account for the majority of Gulf reef fish landings. 
Regardless of the proportion of a fisherman's income derived from 
commercial or charter fishing, participation in these IFQ fisheries is 
restricted to those who possess quota shares or who sell annual 
allocation. Removing the income requirement will also provide more 
flexibility to fishermen and allow them to earn income in other 
occupations. This added flexibility would allow some fishermen to renew 
their permits even if they did not have the opportunity to earn enough 
income from fishing. In addition, this income requirement is relatively 
easy to meet or circumvent, and validation of this income requirement 
has been difficult. Finally, the elimination of income requirements 
would also decrease the administrative burden to NMFS and the applicant 
by simplifying the permit renewal process.

Increasing the Maximum Crew Size for Dual-Permitted Vessels

    The final rule for Amendment 1 to the FMP (55 FR 2078, January 22, 
1990) established the commercial vessel permit for Gulf reef fish and 
the three-person crew size for dual-permitted vessels when fishing 
commercially. In 2006, Amendment 18A to the FMP modified the crew size 
rule to add the Coast Guard certificate of inspection (COI) provision 
that allowed vessels with a COI to carry a minimum crew size specified 
by the COI if it was greater than three. Amendment 18A was intended to 
resolve conflict between the Council's maximum crew size rule and the 
Coast Guard's minimum crew size requirements for vessels with a COI, 
which was at least four.
    Historically, limiting the crew size on a dual-permitted vessel 
when fishing commercially may have served to prevent a vessel from 
taking out a number of passengers under the pretense of making a 
charter trip, but subsequently selling the catch. Under current 
commercial fishing practices, limiting the crew size of a vessel to 
prevent selling catch caught on a charter trip is no longer a primary 
concern. IFQ programs now regulate commercially harvested red snapper, 
grouper, and tilefish species, which constitute the majority of the 
commercial reef fish landings. In addition, all commercial Gulf reef 
fish vessels are required to be equipped with vessel monitoring 
systems. The strict reporting requirements of these management measures 
make it clear when a vessel is operating as a commercial vessel. The 
amount of IFQ shares owned by a permit holder limits the amount of fish 
harvested by a vessel regardless of the crew size. In addition, due to 
the costs involved with carrying extra crew, there

[[Page 42253]]

would be little incentive to exceed the necessary crew size.
    Currently, 154 vessels possess both a charter vessel/headboat 
permit and a commercial vessel permit for Gulf reef fish. These vessel 
are considered to be dual-permitted vessels. Unless the vessel has a 
COI, dual-permitted vessels are limited to a three-person maximum crew 
size. The current crew restriction limits are of particular concern for 
vessels conducting commercial spearfishing operations. These activities 
would be considered commercial diving operations under the Occupational 
Safety and Health Administration (OSHA) regulations. The OSHA 
regulations for SCUBA diving operations (29 CFR 1910.424(c)) require 
that: (1) A standby diver is available while the SCUBA diver is in the 
water and (2) the SCUBA diver must be either line-tended or accompanied 
by another diver with continuous visual contact. The OSHA regulations 
aim to establish safe operating procedures for conducting commercial 
SCUBA diving; however, the three-person crew limit for dual-permitted 
vessels impairs the crew's ability to comply with OSHA and decreases 
the safety at sea, which violates National Standard 10 of the Magnuson-
Stevens Act (16 U.S.C. 1851(a)(10)). Based on OSHA regulations, if two 
divers are underwater spearfishing, the third crewmember at the surface 
would need to handle the vessel and be the standby diver. If it is 
necessary to have two crew members at the surface, only one diver could 
be underwater and would need to be line-tended. Spearfishing while 
being line-tended could cause additional safety issues.
    In addition, the Coast Guard Diving Policies and Procedures Manual 
(2009) states that ``[a] minimum of four personnel consisting of a 
diving supervisor, diver, diver tender and a standby diver are required 
to conduct SCUBA operations.'' While this is not a regulation 
applicable to commercial spearfishing vessels, it provides guidance to 
increase safety of the diving personnel.
    This rule proposes to increase the crew size from three to four for 
dual-permitted vessels to improve the safety at sea issues while 
commercially spearfishing, which would comply with National Standard 10 
of the Magnuson-Stevens Act. In addition, it allows commercial 
spearfishing vessels to comply with the OSHA diving regulations and the 
U.S. Coast Guard guidance for conducting diving operations.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
AA has determined that this proposed rule is consistent with Amendment 
34, the Magnuson-Stevens Act and other applicable law, subject to 
further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this determination is as follows:
    The purpose of this proposed rule is to eliminate existing income 
qualification requirements that may no longer be applicable to the 
current commercial fishing environment and to improve vessel safety in 
the Gulf reef fish fishery. The Magnuson-Stevens Act provides the 
statutory basis for this proposed rule.
    This rule, if implemented, would be expected to directly affect 920 
vessels that possess a commercial reef fish permit. Among these 
entities, 154 vessels also possess a reef fish for-hire permit. These 
vessels would be affected by both actions in this proposed rule. The 
average commercial vessel in the reef fish fishery is estimated to earn 
approximately $48,000 (2010 dollars).
    The for-hire fleet is comprised of charterboats, which charge a fee 
on a vessel basis, and headboats, which charge a fee on an individual 
angler (head) basis. The average charterboat is estimated to earn 
approximately $89,000 (2010 dollars) in annual revenue, while the 
average headboat is estimated to earn approximately $469,000 (2010 
dollars). The average revenue profile of dual-permitted vessels is not 
available.
    There have been no other small entities identified that would be 
expected to be directly affected by this proposed rule.
    The Small Business Administration has established size criteria for 
all major industry sectors in the U.S. including fish harvesters. A 
business involved in fish harvesting is classified as a small business 
if it is independently owned and operated, is not dominant in its field 
of operation (including its affiliates), and has combined annual 
receipts not in excess of $4.0 million (NAICS code 114111, finfish 
fishing) for all its affiliated operations worldwide. The revenue 
threshold for a business involved in the for-hire fishing industry is 
$7.0 million (NAICS code 713990, recreational industries). Based on the 
average revenue estimates provided above, all commercial and for-hire 
vessels expected to be directly affected by this proposed rule are 
determined for the purpose of this analysis to be small business 
entities.
    Neither action in this proposed rule would be expected to result in 
any reduction in profits for any small entities. The two proposed 
actions would either eliminate or lessen a current restriction. The 
proposed elimination of an income requirement for the Gulf commercial 
reef fish permit is expected to provide the opportunity for fishermen 
to increase income from non-fishing occupations without jeopardizing 
their ability to renew their commercial reef fish permit. This would 
also eliminate the pressure to continue to fish to maintain fishing 
income to satisfy a permit requirement when personal, economic, or 
other factors may suggest fishing should not occur. Finally, this rule 
would reduce the reporting and recordkeeping burdens currently imposed 
on applicants. In particular, applicants would no longer be required to 
complete the Income Qualification Affidavit section on the Federal 
Permit Application for Vessels Fishing in the EEZ (Federal Permit 
Application) as proof of meeting permit income qualification 
requirements for commercial Gulf reef fish vessel permits. As a result, 
although the effects are not quantifiable with available data, this 
proposed action would be expected to increase the economic benefits to 
small entities.
    The proposed increase in the maximum crew size from three to four 
persons for dual-permitted vessels would allow increased flexibility 
for affected vessels to carry the number of crew best suited to the 
needs or conditions of the trip. As a result, although the effects are 
again unquantifiable with available data, increased economic benefits 
would be expected to accrue to fishermen as a result of this increased 
flexibility. Therefore, the economic effects on small entities of this 
proposed rule, if implemented, are expected to be positive and not 
constitute a significant economic impact on a substantial number of 
small entities.
    Because this proposed rule, if implemented, would not be expected 
to have a significant economic impact on any small entities, an initial 
regulatory flexibility analysis is not required and none has been 
prepared.
    Notwithstanding any other provision of law, no person is required 
to respond

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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 
Paperwork Reduction Act (PRA), unless that collection-of-information 
displays a currently valid Office of Management and Budget (OMB) 
control number.
    This proposed rule contains collection-of-information requirements 
subject to the PRA. NMFS estimates the removal of the income 
qualification requirements for commercial Gulf reef fish permit holders 
will result in a net decrease in the time to complete the Federal 
Permit Application (for all applicants), however, the current burden 
estimate (20 minutes per applicant) to complete the application form 
would not decrease because the time to complete the Income 
Qualification Affidavit is minimal compared to the time to complete the 
entire application.
    These requirements have been submitted to OMB for approval. NMFS 
seeks public comment regarding: Whether this proposed collection-of-
information is necessary for the proper performance of the functions of 
the agency, including whether the information will have practical 
utility; the accuracy of the burden estimate; ways to enhance the 
quality, utility, and clarity of the information to be collected; and 
ways to minimize the burden of the collection-of-information, including 
through the use of automated collection techniques or other forms of 
information technology. Send comments regarding the burden estimate or 
any other aspect of the collection-of-information requirement, 
including suggestions for reducing the burden, to NMFS and to OMB (see 
ADDRESSES).

List of Subjects in 50 CFR Part 622

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

    Dated: July 13, 2012.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, performing the 
functions and duties of the Assistant Administrator for Fisheries, 
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.  622.2, the definition for ``charter vessel'' is revised 
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, except 
for a charter vessel with a commercial vessel permit for Gulf reef 
fish. A charter vessel that has a charter vessel permit for Gulf reef 
fish and a commercial vessel permit for Gulf reef fish is considered to 
be operating as a charter vessel when it carries a passenger who pays a 
fee or when there are more than four persons aboard, including operator 
and crew. 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.
* * * * *
    3. In Sec.  622.4, paragraphs (m)(3), (m)(4), and (m)(5) are 
removed; paragraph (m)(6) is redesignated as paragraph (m)(3); and 
paragraphs (a)(2)(v) and (m)(2) are revised to read as follows:


Sec.  622.4  Permits and fees.

    (a) * * *
    (2) * * *
    (v) Gulf reef fish. For a person aboard a vessel to be eligible for 
exemption from the bag limits, to fish under a quota, as specified in 
Sec.  622.42(a)(1), or to sell Gulf reef fish in or from the Gulf EEZ, 
a commercial vessel permit for Gulf reef fish must have been issued to 
the vessel and must be on board. If Federal regulations for Gulf reef 
fish in subparts A, B, or C of this part are more restrictive than 
state regulations, a person aboard a vessel for which a commercial 
vessel permit for Gulf reef fish has been issued must comply with such 
Federal regulations regardless of where the fish are harvested. See 
paragraph (a)(2)(ix) of this section regarding an IFQ vessel account 
required to fish for, possess, or land Gulf red snapper or Gulf 
groupers and tilefishes and paragraph (a)(2)(xiv) of this section 
regarding an additional bottom longline endorsement required to fish 
for Gulf reef fish with bottom longline gear in a portion of the 
eastern Gulf. See paragraph (m) of this section regarding a limited 
access system for commercial vessel permits for Gulf reef fish.
* * * * *
    (m) * * *
    (2) A permit holder may transfer the commercial vessel permit for 
Gulf reef fish to another vessel owned by the same entity. A permit 
holder may also transfer the commercial vessel permit for Gulf reef 
fish to the owner of another vessel or to a new vessel owner when he or 
she transfers ownership of the permitted vessel.
* * * * *
[FR Doc. 2012-17495 Filed 7-17-12; 8:45 am]
BILLING CODE 3510-22-P