[Federal Register Volume 88, Number 18 (Friday, January 27, 2023)]
[Proposed Rules]
[Pages 5295-5298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01408]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 230119-0017]
RIN 0648-BL58


Reef Fish Resources of the Gulf of Mexico and Coastal Migratory 
Pelagic Resources of the Gulf of Mexico and Atlantic Region; Conversion 
of Historical Captain Permits

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 as described in 
an abbreviated framework action under the Fishery Management Plans 
(FMPs) for the Reef Fish Resources of the Gulf of Mexico (Reef Fish 
FMP) and Coastal Migratory Pelagic (CMP) Resources of the Gulf of 
Mexico and Atlantic Region (CMP FMP). This proposed rule would enable a 
permit holder to replace a historical captain endorsement in the reef 
fish and CMP fisheries in the Gulf of Mexico (Gulf) with a standard 
Federal charter vessel/headboat permit. NMFS expects that this proposed 
rule would reduce the potential regulatory and economic burden on 
historical captain permit holders.

DATES: Written comments must be received by February 27, 2023.

ADDRESSES: You may submit comments on the proposed rule identified by 
``NOAA-NMFS-2022-0121'' by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov 
and enter ``NOAA-NMFS-2022-0121'' in the Search box. Click the 
``Comment'' icon, complete the required fields, and enter or attach 
your comments.
     Mail: Submit all written comments to Rich Malinowski, NMFS 
Southeast Regional Office, 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 and address, 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.
    Electronic copies of the abbreviated framework action may be 
obtained from the Southeast Regional Office website at https://www.fisheries.noaa.gov/action/framework-action-historical-captain-permits-conversion-standard-federal-charter-headboat. The abbreviated 
framework includes a Regulatory Flexibility Act (RFA) analysis and a 
regulatory impact review.

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

SUPPLEMENTARY INFORMATION: The Gulf of Mexico Fishery Management 
Council (Gulf Council) manages reef fish resources in the Gulf 
Exclusive Economic Zone (EEZ) under the Reef Fish FMP. The CMP fishery 
in the Gulf of Mexico and Atlantic Region is managed jointly by the 
Gulf Council and South Atlantic Fishery Management Council (Councils). 
NMFS implements the FMPs through regulations at 50 CFR part 622 under 
the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.).

Background

    During the 1980s and 1990s, the number of charter and headboat 
(for-hire) vessels operating in the recreational Gulf reef fish and CMP 
fisheries increased rapidly, creating concern among the Gulf Council, 
NMFS, and other members of the fishing industry about the viability of 
the for-hire component and the sustainability of

[[Page 5296]]

the fish stocks they were harvesting. The Gulf Council was also 
concerned about the rapid increase in the number of reef fish and CMP 
for-hire permits and trips, and the increased proportion of the catch 
harvested by the for-hire fleet.
    In response to these concerns, the Gulf Council developed Amendment 
14 to the CMP FMP and Amendment 20 to the Reef Fish FMP (CMP Amendment 
14/Reef Fish Amendment 20) that, when implemented by NMFS, established 
a 3-year moratorium on the issuance of new charter vessel/headboat 
permits in the reef fish and CMP fisheries in the Gulf EEZ (67 FR 
43558, June 28, 2002). The purpose of the moratorium was to cap the 
number of for-hire permitted vessels while the Gulf Council evaluated 
the need for further management actions to rebuild fishery resources. A 
fully transferable reef fish or CMP charter vessel/headboat permit, 
hereafter referred to as a standard permit, was issued to eligible for-
hire operators, including those individuals who (1) owned a vessel with 
a valid charter vessel/headboat permit, or (2) could demonstrate that, 
prior to March 29, 2001, they had a charter vessel or headboat under 
construction, with associated expenditures of at least $5,000.
    The Gulf Council recognized that some captains participating in the 
for-hire reef fish and CMP fisheries operated other individuals' 
vessels and did not own their vessels, and therefore were not eligible 
for a standard permit. Under CMP Amendment 14/Reef Fish Amendment 20, 
captains who met specific eligibility requirements could apply for a 
permit with a historical captain endorsement, referred to hereafter as 
a historical captain permit. Unlike a standard permit, a historical 
captain permit is attached to the individual instead of a specific 
vessel and has certain restrictions. A historical captain permit 
requires the captain to be on the vessel when operating a for-hire 
trip, and a historical captain permit cannot be transferred or sold.
    Persons who submitted evidence of eligibility as a historical 
captain within 90 days of the implementation of the CMP Amendment 14/
Reef Fish Amendment 20 were issued letters of eligibility, which could 
be used to obtain a historical captain permit. Initially, NMFS issued a 
total of 141 historical captain permits to harvest reef fish and CMP 
species.
    In 2006, NMFS implemented Reef Fish Amendment 25/CMP Amendment 17 
(71 FR 28282, May 16, 2006), which established a limited access program 
for permitting for-hire vessels for the reef fish and CMP fisheries in 
the Gulf EEZ, effectively extending the permit moratorium indefinitely. 
The historical captain permit continued to be a category of permit 
following implementation of Reef Fish Amendment 25/CMP Amendment 17, 
and previously issued letters of eligibility remained valid, as did the 
historical captain permits, provided that permit holders followed 
procedures for permit retention and renewal.
    In April 2020, NMFS implemented a framework action developed by the 
Gulf Council that allowed historical captain permit holders to convert 
existing reef fish and CMP historical captain permits to standard 
charter vessel/headboat permits (85 FR 22043, April 21, 2020). At that 
time, 61 historical captain permits were eligible for the conversion, 
and all of those permits have been converted to standard permits. The 
Gulf Council developed the action after hearing public testimony about 
the economic hardships caused by the restrictions imposed on historical 
captain permits. Converting a historical captain permit allowed the 
permit holder to lease the vessel to another captain, have another 
captain operate the vessel, or transfer the permit to a family member 
or any other eligible person. A fully transferable standard permit also 
allows the family of a permitted captain who has died to retain the 
permit, unlike a historical captain permit that expires upon the 
captain's death.
    In addition to allowing for the conversion of eligible historical 
caption permits, the 2020 rulemaking rendered any remaining letters of 
eligibility for historical captain permits invalid. However, some 
individuals submitted their letters to NMFS before the effective date 
of the 2020 rule and received historical captain permits. There are 
currently 4 remaining historical captain permits (two reef fish and two 
CMP) held by 2 individuals and the Council determined that it was 
appropriate to allow these permit holders the opportunity to convert 
their permits to a standard permit. This would eliminate the historical 
captain permit category and reduce the regulatory and economic burden 
on those remaining historical captain permit holders.
    Each standard permit and historical captain permit provides a 
maximum number of passengers allowed on board a vessel operating under 
the permit. A standard permit issued as a result this proposed rule 
would have the same maximum number of passengers as the historical 
captain permit that it would replace.

Management Measures Contained in This Proposed Rule

    This proposed rule would extend the same rights and 
responsibilities of standard Gulf reef fish and CMP charter vessel/
headboat permits to eligible individuals who choose to convert their 
historical captain permits to standard permits.
    If an individual with an eligible historical captain permit wishes 
to convert the permit to a standard reef fish or CMP charter vessel/
headboat permit, the individual would submit a permit application to 
the NMFS Southeast Fisheries Permits Office along with their current 
historical captain permit (original document, not a copy) and 
supporting documents and fees, including documentation for the vessel 
to which the standard for-hire permit would be attached. Unlike a 
historical captain permit, which is issued to an individual, a standard 
permit must be issued to a vessel with a valid U.S. Coast Guard (USCG) 
certificate of documentation (COD) or state registration certificate 
(50 CFR 622.4(a)). If the permit applicant is the owner of the vessel, 
NMFS would verify that the vessel for which the new for-hire permit 
would be issued is owned by the applicant and does not have an existing 
Gulf reef fish or CMP charter vessel/headboat permit associated with 
it, as vessels are not allowed to have multiple charter vessel/headboat 
permits of the same type associated with them.
    If the vessel to which the permit would be attached is to be 
leased, a fully executed lease agreement of at least 7 months, between 
the vessel owner and permit holder, would need to be included with the 
application. Note that vessel owners and lessees cannot independently 
hold permits for the same vessel at the same time. NMFS would then 
verify the vessel does not have any other Federal permit associated 
with it in another permit holder's name.
    After NMFS verifies that the information provided with the 
application allows for the conversion, the historical captain permit 
would be converted to a standard permit for Gulf reef fish or Gulf CMP 
species. Due to the uniqueness of the historical captain permit number, 
the new permit would keep the existing permit number, e.g., HRCG-9999 
would convert to RCG-9999.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent

[[Page 5297]]

with the abbreviated framework action, the respective FMPs, other 
provisions of 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.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) 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 follows.
    A description of this proposed rule, why it is being considered, 
and the objectives of this proposed rule are contained in the 
SUPPLEMENTARY INFORMATION section of this proposed rule. The Magnuson-
Stevens Act provides the statutory basis for this proposed rule. No 
duplicative, overlapping, or conflicting Federal rules have been 
identified.
    This proposed rule, if implemented, would apply to operators of 
charter vessels and headboats (for-hire vessels) that have a reef fish 
or CMP historical captain permit. There are two historical captains 
that each have a valid (non-expired) or renewable charter vessel/
headboat historical captain permit for Gulf reef fish and Gulf CMP 
species for a total of four historical captain permits. Although the 
for-hire permit application collects information on the primary method 
of operation, the permit itself does not identify the permitted vessel 
as either a charter vessel or a headboat and vessels may operate in 
both capacities on separate trips. The average charter vessel is 
estimated to receive approximately $94,000 (2021 dollars) in annual 
gross revenue; the average headboat is estimated to receive 
approximately $451,000 (2021 dollars) in annual gross revenue.
    The SBA has established size standards for all major industry 
sectors in the U.S. including for-hire businesses (NAICS code 487210). 
A business primarily 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 
affiliates), and has combined annual receipts not in excess of $12.5 
million for all its affiliated operations worldwide. All of the for-
hire businesses directly regulated by this proposed rule are believed 
to be small entities based on the SBA size criteria. No other small 
entities that would be directly affected by this proposed rule have 
been identified.
    This proposed rule would not establish any new reporting or record-
keeping requirements. It would, however, require historical captain 
permit holders to comply with the standard permit regulations if their 
historical captain permits are replaced with standard permits. The 
regulations stipulate that the standard permit must be issued to a 
vessel with a valid U.S. Coast Guard certificate of documentation or 
state registration certificate (50 CFR 622.4(a)). For any historical 
captain permit holder who elects to have their historical captain 
permit replaced with a standard permit and who does not currently own 
or lease a vessel, this would require either the purchase or lease of a 
vessel and payment of applicable registration and inspection fees.
    This proposed rule would grant two historical captain permit 
holders the opportunity to replace their historical captain permits 
with standard permits. Because standard permits are transferrable and 
salable and historical captain permits are not, this would have 
positive economic effects in terms of increased asset value and 
business succession planning. Transfer values for a single standard 
permit ranged from approximately $0.01 to $147,000 (2021 dollars) 
during 2010 through 2018. It is not possible to estimate a meaningful 
average market value for these permits with available data; however, it 
is expected that the value would increase relative to the passenger 
capacity of the historical captain permit. Additionally, once 
historical captain permits are replaced with standard permits, the 
historical captains would no longer need to be present on the vessel 
while the permit is in use. This would provide greater operational 
flexibility and potentially increase profits for affected small 
entities.
    There are also some potential economic costs to small entities from 
this proposed rule. Because replacement of historical captain permits 
with standard permits would be optional, only those permit holders who 
choose to participate in the conversion would be affected. Standard 
permits must be issued to a vessel that is either owned or leased by 
the permit holder. Some historical captains may not currently own or 
lease a vessel. To replace their existing permits with standard 
permits, these historical captains would need to purchase or lease a 
suitable vessel and pay all applicable inspection and registration 
fees. An initial U.S. Coast Guard certificate of documentation is $133 
and a renewal is $26 (46 CFR 67.550). If a U.S. Coast Guard certificate 
of inspection is required, the annual inspection fee is $300 for 
vessels less than 65 ft (19.8 m) and $600 for vessels 65 ft (19.8 m) 
and greater in length overall (46 CFR 2.10-101(a)). State boat 
registration and inspection fees in Gulf States are estimated to range 
from approximately $10 up to $458, depending on the length of the 
vessel and state of registration. Due to uncertainty about the business 
strategies of historical captain permit holders, variation in permit 
passenger capacities, and the wide range of vessel options, it is not 
possible to estimate the cost that would be incurred by historical 
captains to purchase or lease a vessel. The average purchase price for 
a headboat operating in the Gulf is estimated to be $426,826 (2021 
dollars); the average purchase price for a charter vessel operating in 
the Gulf is estimated to be $114,494 (2021 dollars). If historical 
captains intend to only sell their new standard permits, they could buy 
a much cheaper vessel to hold the permit prior to the sale. Estimates 
of for-hire vessel lease prices are not readily available; however, 
this may be a more affordable option than purchasing a vessel.
    In addition to the cost to buy or lease a vessel, there would be an 
opportunity cost for some historical captains should they choose to 
replace their historical captain permits with standard permits. This 
opportunity cost pertains to the potential lost earnings that would 
result from no longer being able to use their historical captain permit 
to operate a vessel owned or leased by another individual or business. 
This opportunity cost cannot be quantified with available data. To 
extract value from the standard permit, historical captains would need 
to either sell their permit or attach it to a purchased or leased 
vessel capable of servicing paying customers. Again, replacement of 
historical captain permits is voluntary and it is expected that 
historical captains will only replace their historical captain permits 
with standard permits if the benefits of doing so outweigh the costs.
    In summary, the information provided above supports a determination 
that this proposed rule would not have a significant economic impact on 
a substantial number of small entities. As a result, an initial 
regulatory flexibility analysis is not required and none has been 
prepared.
    This proposed rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.

[[Page 5298]]

List of Subjects in 50 CFR Part 622

    Fish, Fisheries, Gulf of Mexico, Historical captain, Permit.

    Dated: January 19, 2023.
Samuel D. Rauch, III,
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.  622.20, revise paragraph (b)(1)(v) to read as follows:


Sec.  622.20  Permits and endorsements.

* * * * *
    (b) * * *
    (1) * * *
    (v) Procedure for conversion of permit with historical captain 
endorsement. A charter vessel/headboat permit with a historical captain 
endorsement may be converted to a charter vessel/headboat permit for 
Gulf reef fish without a historical captain endorsement. A charter 
vessel/headboat permit with a historical captain endorsement that is 
converted to a charter vessel/headboat permit without a historical 
captain endorsement will retain the same vessel permit maximum 
passenger capacity as the permit it replaces. To convert an eligible 
charter vessel/headboat permit with a historical captain endorsement, 
the permit holder must submit a permit application to the RA by 
February 27, 2025. If no application to convert an eligible charter 
vessel/headboat permit with a historical captain endorsement is 
submitted by February 27, 2025, the permit holder will retain a charter 
vessel/headboat permit with the historical captain endorsement that is 
subject to the restrictions described in paragraph (b)(1)(i)(B) of this 
section.
* * * * *
0
3. In Sec.  622.373, revise paragraph (f) to read as follows:


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

* * * * *
    (f) Procedure for conversion of permit with historical captain 
endorsement. A charter vessel headboat permit with a historical captain 
endorsement may be converted to a charter vessel/headboat permit for 
Gulf coastal migratory pelagic fish without a historical captain 
endorsement as described in paragraph (b)(1) of this section. A charter 
vessel/headboat permit with a historical captain endorsement that is 
converted to a charter vessel/headboat permit without a historical 
captain endorsement will retain the same vessel permit maximum 
passenger capacity as the permit it replaces. To convert an eligible 
charter vessel/headboat permit with a historical captain endorsement, 
the permit holder must submit a permit application to the RA by 
February 27, 2025. If no application to convert an eligible charter 
vessel/headboat permit with a historical captain endorsement is 
submitted by February 27, 2025, the permit holder will retain a charter 
vessel/headboat permit with the historical captain endorsement that is 
subject to the restrictions described in paragraph (b)(2) of this 
section.

[FR Doc. 2023-01408 Filed 1-26-23; 8:45 am]
BILLING CODE 3510-22-P