[Federal Register Volume 78, Number 120 (Friday, June 21, 2013)]
[Proposed Rules]
[Pages 37500-37503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14907]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 130326296-3552-01]
RIN 0648-BD10


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Coastal Migratory Pelagic 
Resources of the Gulf of Mexico and South Atlantic; Abbreviated 
Framework

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 to implement management measures described in an 
abbreviated framework to the Fishery Management Plans (FMPs) for the 
Reef Fish Resources of the Gulf of Mexico prepared by the Gulf of 
Mexico Fishery Management Council (Gulf Council), and Coastal Migratory 
Pelagic Resource prepared by the Gulf Council and the South Atlantic 
Fishery Management Council (South Atlantic Council). If implemented, 
this rule would eliminate the requirement to submit a current 
certificate of inspection (COI) provided by the U.S. Coast Guard (USCG) 
with the application to renew or transfer a Federal Gulf of Mexico 
(Gulf) coastal migratory pelagic (CMP) or reef fish charter vessel/
headboat permit (hereafter referred to as a for-hire permit). The rule 
would eliminate the restriction on transferring for-hire permits to a 
vessel of greater authorized passenger capacity than specified on the 
permit. The rule would also prohibit the harvest or possession of CMP 
or reef fish species on a vessel with a Gulf for-hire permit that is 
carrying more passengers than is specified on the permit. The intended 
effect of this proposed rule is to simplify the passenger capacity 
requirements for transfers and renewals of Gulf CMP and reef fish for-
hire permits to provide more flexibility in the use of these permitted 
vessels.

DATES: Written comments must be received on or before July 8, 2013.

ADDRESSES: You may submit comments on this document, identified by 
``NOAA-NMFS-2013-0065'', by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0065, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Peter Hood, Southeast 
Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    Electronic copies of the abbreviated framework, which includes a 
regulatory impact review, a Regulatory Flexibility Act analysis, and a 
social impact assessment, may be obtained from the Southeast Regional 
Office Web site at http://sero.nmfs.noaa.gov.
    Comments regarding the burden-hour estimates or other aspects of 
the collection-of-information requirements contained in this proposed 
rule may be

[[Page 37501]]

submitted in writing to Anik Clemens, Southeast Regional Office, NMFS, 
263 13th Avenue South, St. Petersburg, FL 33701; and the Office of 
Management and Budget (OMB), by email at OIRA [email protected], 
or by fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Peter Hood, Southeast Regional Office, 
telephone 727-824-5305, email [email protected].

SUPPLEMENTARY INFORMATION: The Gulf reef fish and CMP fisheries are 
managed under their respective FMPs. The Gulf reef fish FMP was 
prepared by the Gulf Council and the CMP FMP was prepared by the Gulf 
and South Atlantic Councils and are implemented through regulations at 
50 CFR part 622 under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act).

Background

    The Magnuson-Stevens Act requires NMFS and regional fishery 
management councils to prevent overfishing and achieve, on a continuing 
basis, optimum yield (OY) from federally managed fish stocks. To reduce 
the risk of overfishing, permit moratoria were placed on Gulf CMP and 
reef fish for-hire permits to cap fishing effort. The purpose of this 
action is to simplify the passenger capacity requirements for transfers 
and renewals of Gulf CMP and reef fish for-hire permits to provide more 
flexibility in the use of these permitted vessels.
    In 2003, moratoria were established for for-hire permits for the 
Gulf CMP and reef fish fisheries through Amendments 14 and 20 to the 
respective FMPs (68 FR 26230, May 15, 2003). The intended effect of 
these moratoria was to cap the effort and passenger capacity of Gulf 
for-hire vessels operating in these fisheries at the level documented 
in March 2001, while the Council evaluated whether limited access 
programs were needed to permanently constrain effort. These moratoria 
were extended indefinitely in June 2006, through Amendments 17 and 25 
to the respective FMPs (71 FR 28282, May 16, 2006) and created the 
current limited access system for this sector.
    Regulations implementing the moratoria on Gulf for-hire permits 
limit permit transfers and renewals to vessels that have the same 
passenger capacity or a lower passenger capacity to limit overall 
fishing effort. Because passenger capacity is currently based on the 
USCG COI, this limits the ability of the owner of a permitted vessel to 
transfer the Gulf for-hire permit to a vessel that has a higher 
passenger capacity listed on the COI or to renew the permit under the 
higher passenger capacity listed on the COI. Under such scenarios, the 
only way to renew or transfer a permit is to have the USCG adjust the 
COI so that it is less than or equal to the passenger capacity 
identified on the Gulf for-hire permit, which was based on the COI of 
the vessel when the moratorium Gulf for-hire permit was first issued, 
even though a vessel could safely carry more passengers, or 
subsequently has had the COI revised to carry more passengers.
    This proposed rule would eliminate the requirement to submit a 
current USCG COI with the application to renew or transfer a Gulf for-
hire permit, eliminate the restriction on transfer, and implement a 
provision that would prohibit the harvest or possession of reef fish or 
CMP species on vessels with a Gulf for-hire permit that is carrying 
more passengers than is specified on the Gulf for-hire permit. Because 
the passenger capacity for the Gulf for-hire vessel when fishing would 
be based on the COI of the vessel when the moratorium Gulf for-hire 
permit was first issued, the cap on fishing effort, which was the 
original purpose of the moratorium permits, would be maintained. As a 
result of this action, the requirements to renew or transfer a for-hire 
permit would be simplified, for-hire effort control in the reef fish 
and CMP fisheries would be maintained, and vessel owners would be 
allowed to carry more passengers for non-fishing activities if their 
COI is greater than the passenger capacity on their fore-hire permit.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
Assistant Administrator, NMFS, has determined that this proposed rule 
is consistent with the abbreviated framework, the FMP, 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 implemented, 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 the requirement 
to use the passenger capacity listed on the USCG COI in the renewal or 
transfer of Federal Gulf for-hire permits and instead, implement the 
requirement to use the passenger capacity listed on the Gulf for-hire 
permit. This would be expected to increase the profits of affected Gulf 
for-hire businesses while continuing to prevent overfishing and 
achieving the OY of the species harvested by these businesses. The 
Magnuson-Stevens Act provides the statutory basis for this proposed 
action. No duplicative, overlapping, or conflicting Federal rules have 
been identified. This proposed rule would not introduce any changes to 
current reporting, record-keeping, or other compliance requirements, 
except as discussed below with respect to passenger capacity fishing 
restrictions.
    This proposed rule would be expected to affect all for-hire vessels 
with a Gulf for-hire permit. A Gulf for-hire permit is required for 
for-hire vessels to harvest reef fish or CMP species in the Gulf 
exclusive economic zone (EEZ). On March 1, 2013, 1,348 vessels had a 
valid (non-expired) or renewable reef fish for-hire permit and 1,377 
vessels had a valid or renewable CMP for-hire permit. An expired permit 
is renewable for one year after expiration. Many Gulf for-hire vessels 
have both the reef fish and CMP charter for-hire permits and 1,440 
unique vessels had one (either a reef fish or CMP permit) or both for-
hire permits. The Gulf for-hire fleet is comprised of charter vessels, 
which charge a fee on a vessel basis, and headboats, which charge a fee 
on an individual angler (head) basis. Among the 1,440 vessels with at 
least one Gulf for-hire permit, 80 are believed to primarily operate as 
headboats and 1,360 primarily operate as charter vessels.
    This proposed rule would also affect Gulf for-hire vessels that do 
not have a Gulf for-hire permit that attempt to purchase and receive 
through transfer a Gulf for-hire permit from a permitted vessel. The 
number of Gulf for-hire vessels that do not have a Gulf for-hire permit 
and may wish to acquire one through transfer is unknown.
    The average charter vessel is estimated to earn approximately 
$81,700 (2012 dollars) and the average headboat is estimated to earn 
approximately $247,000. These estimates apply to vessels with and 
without a Gulf for-hire permit.
    NMFS has not identified any other small entities 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 the for-hire fishing industry is classified as a 
small business if it is independently owned and operated, is not 
dominant in its field of operation (including its

[[Page 37502]]

affiliates), and has combined annual receipts not in excess of $7.0 
million (NAICS code 713990, recreational industries) for all its 
affiliated operations worldwide. All for-hire vessels expected to be 
directly affected by this proposed rule are believed to be small 
business entities.
    The proposed elimination of the use of the passenger capacity 
specified on the USCG COI during the transfer or renewal process for 
Federal Gulf for-hire permits would be expected to allow Gulf for-hire 
permit transfers and renewals to occur in a timelier and more efficient 
manner, result in less disruption in vessel operation, and result in 
increased revenue to affected entities. Vessels with a higher passenger 
capacity on their COI than on their Gulf for-hire permit, in the case 
of permit renewals, or on the Gulf for-hire permit they are attempting 
to acquire through transfer, would not be required to obtain a new COI 
with an adjusted (lower) passenger capacity to match the passenger 
capacity listed on the Gulf for-hire permit. As a result, these vessels 
would not have to incur the costs associated with re-inspection or 
reduced revenue associated with operational delay re-inspection may 
precipitate. Vessels that provide non-fishing for-hire services could 
carry more passengers, subject to the passenger capacity specified by 
their COI, than when fishing and not be limited to the lower passenger 
capacity specified on their Gulf for-hire permit. As a result, revenue 
from these services (non-fishing for-hire) could be increased. 
Available data, however, are insufficient to quantify these potential 
increases.
    The proposed prohibition on the harvest or possession of reef fish 
and CMP species on vessels with a Gulf for-hire permit that is carrying 
more passengers than is specified on the Gulf for-hire permit would be 
expected to reduce revenue for vessels that may previously have carried 
more passengers than specified on their Gulf for-hire permit, though 
few vessels are expected to have engaged in this practice. Current 
regulation, although intended to limit effort per vessel to the number 
of passengers on the original moratorium permit, only places passenger 
restrictions on the renewal or transfer of for-hire permits; no 
passenger restrictions are placed on the vessel when engaged in 
fishing. In theory, the restrictions placed on permit renewal or 
transfer should have, were intended to, and likely did, result in 
vessels with consistent (equal) passenger limits specified on both the 
Gulf for-hire permit and the COI. In practice, however, it has been 
possible for the passenger limits on the two documents to be unequal 
and, as a result, allow a vessel to carry more passengers when fishing 
than the limit specified on the Gulf for-hire permit. This could occur 
if, for example, a vessel renewed the Gulf for-hire permit, or received 
one through transfer, was re-inspected by the USCG, and received a COI 
with a higher maximum passenger limit than specified on the Gulf for-
hire permit. If inspected at sea, the vessel would not violate 
passenger restrictions as long as the number of passengers was less 
than or equal to the safe limit specified on the COI even if carrying 
more passengers than specified on the Gulf for-hire permit. As a 
result, the vessel could carry more passengers while fishing than 
specified on the Gulf for-hire permit and benefit, financially, from 
the higher passenger load. This would be a temporary advantage to the 
vessel, however, the permit could not be renewed (or transferred) with 
a COI with a higher passenger limit than specified on the Gulf for-hire 
permit. Thus, to continue to carry more passengers than specified on 
the Gulf for-hire permit when fishing, a new COI would have to be 
obtained specifying the lower limit prior to permit renewal and, upon 
renewal, re-inspection would need to occur to ``recover'' the higher 
limit. Such behavior would not be expected to be common or frequent. 
Although the fee for inspection may not be onerous, $300 for a vessel 
less than 65 ft (20 m) in length, relative to the potential increase in 
revenue associated with carrying more passengers, justifying to the 
USCG the need for doubling of the number of inspections as a strategic 
move may be difficult. Additionally, the ability to carry more 
passengers under a situation like this has likely been a regulatory 
loophole that few, if any, vessel owners are expected to have 
identified in the past, or would recognize in the future, and taken 
advantage of even temporarily. As a result, although the proposed 
prohibition would prevent behavior previously allowed, little to no 
change in economic benefits would be expected because the behavior that 
would be prohibited is not believed to have occurred in the past or be 
expected to occur in the future in the absence of this proposed 
prohibition.
    Few vessels have encountered a problem associated with Gulf for-
hire permit renewal or transfer due to passenger capacity issues in 
recent years, with only an estimated seven denials (renewal or 
transfer) occurring from 2011 through the time of this analysis. Thus, 
only a small portion of the Gulf for-hire fleet has been directly 
affected by current regulations. However, with declining seasons for 
some key species, notably red snapper, the decline in the general 
national economy and slow pace of economic recovery, service 
diversification may become increasingly important to help Gulf for-hire 
businesses remain economically viable. Thus, for some individual small 
businesses, the economic effects of this proposed rule could be 
significant. However, overall, because few vessels have encountered a 
problem with conflicting passenger capacities on their Gulf for-hire 
permit and COI at either the permit renewal or transfer stage, only a 
small portion of the Gulf for-hire fleet would be expected to be 
directly affected by this proposed action.
    In summary, the proposed rule, if implemented, would not be 
expected to have a significant impact on a substantial number of small 
entities and, as a result, 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 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 OMB control number.
    This proposed rule contains collection-of-information requirements 
subject to the PRA. NMFS is revising the collection-of-information 
requirements under OMB control number 0648-0205. NMFS estimates 
eliminating the requirement for Gulf for-hire permit holders to submit 
a current COI to renew or transfer a Gulf reef fish or CMP for-hire 
permit would decrease the overall reporting burden under OMB control 
number 0648-0205. The requirement to submit a current COI would be 
removed from the instructions on the Federal Permit Application for 
Vessels Fishing in the EEZ and a COI would not need to be submitted 
with the application to renew or transfer a permit. NMFS estimates 
these requirements would decrease the reporting burden for Gulf for-
hire permit holders who are renewing or transferring a Gulf for-hire 
permit on average by 1 minute per response. These estimates of the 
public reporting burden include the time for reviewing instructions, 
gathering and maintaining the data needed, and completing and reviewing 
the collection-of-information.
    These requirements have been submitted to OMB for approval. NMFS 
seeks public comment regarding:

[[Page 37503]]

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

    Certificate of inspection, Fisheries, Fishing, For-Hire, Gulf, 
Reporting and recordkeeping requirements.

    Dated: June 18, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 622 is 
proposed to be amended as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, 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.  622.13, paragraph (g) is added to read as follows:


Sec.  622.13  Prohibitions--general.

* * * * *
    (g) Fail to comply with the passenger capacity related requirements 
in Sec. Sec.  622.20(b)(1) and 622.373(b)(1).
0
3. In Sec.  622.20, paragraphs (b)(1)(i)(A) and (B) are revised and 
paragraph (b)(1)(iv) is added to read as follows:


Sec.  622.20  Permits and endorsements.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (A) Permits without a historical captain endorsement. A charter 
vessel/headboat permit for Gulf reef fish that does not have a 
historical captain endorsement is fully transferable, with or without 
sale of the permitted vessel.
    (B) Permits with a historical captain endorsement. A charter 
vessel/headboat permit for Gulf reef fish that has a historical captain 
endorsement may only be transferred to a vessel operated by the 
historical captain and is not otherwise transferable.
* * * * *
    (iv) Passenger capacity compliance requirement. A vessel operating 
as a charter vessel or headboat with a valid charter vessel/headboat 
permit for Gulf reef fish, which is carrying more passengers on board 
the vessel than is specified on the permit, is prohibited from 
harvesting or possessing the species identified on the permit.
* * * * *
0
4. In Sec.  622.373, paragraphs (b)(1) and (2) are revised and 
paragraph (e) is added to read as follows:


Sec.  622.373  Limited access system for charter vessel/headboat 
permits for Gulf coastal migratory pelagic fish.

* * * * *
    (b) * * *
    (1) Permits without a historical captain endorsement. A charter 
vessel/headboat permit for Gulf coastal migratory pelagic fish that 
does not have a historical captain endorsement is fully transferable, 
with or without sale of the permitted vessel.
    (2) Permits with a historical captain endorsement. A charter 
vessel/headboat permit for Gulf coastal migratory pelagic fish that has 
a historical captain endorsement may only be transferred to a vessel 
operated by the historical captain and is not otherwise transferable.
* * * * *
    (e) Passenger capacity compliance requirement. A vessel operating 
as a charter vessel or headboat with a valid charter vessel/headboat 
permit for Gulf coastal migratory pelagic fish, which is carrying more 
passengers on board the vessel than is specified on the permit, is 
prohibited from harvesting or possessing the species identified on the 
permit.
[FR Doc. 2013-14907 Filed 6-20-13; 8:45 am]
BILLING CODE 3510-22-P