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

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.

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 This email address is being protected from spambots. You need JavaScript enabled to view it.

or by fax to 202-395-7285.

 

FOR FURTHER INFORMATION CONTACT: Peter Hood, Southeast Regional Office, 

telephone 727-824-5305, email This email address is being protected from spambots. You need JavaScript enabled to view it..

 

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

 

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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:

 

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).

 

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