NACO

National Association of Charterboat Operators

Exempted States Registration Requirements

NMFS issues this final rule to amend the regulations that implement section 401(g) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). The amendments eliminate duplicative permitting and registration requirements for holders of Main Hawaiian Islands Non-commercial Bottomfish Permits; allow states that exempt minors under the age of 17 from the state license or registration requirements to be eligible for Exempted State designation; allow the U.S. Virgin Islands to be designated as an Exempted State under the qualifying regional survey option of the rule; and clarify and update various provisions of the rule.

This final rule is effective August 17, 2012.

ADDRESSES: Copies of the Regulatory Impact Review/Regulatory Flexibility Act Analysis are available from: Gordon Colvin, Office of Science and Technology, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. Background information and documents are available at the NMFS Office of Science and Technology Web site at http://www.st.nmfs.noaa.gov/mrip/. Comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule should be submitted in writing to Gordon Colvin, Office of Science and Technology, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910 and to OMB by email to OIRA This email address is being protected from spambots. You need JavaScript enabled to view it., or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Gordon Colvin, phone: 301-427-8118; fax: 301-713-1875; or email: This email address is being protected from spambots. You need JavaScript enabled to view it..

SUPPLEMENTARY INFORMATION:

 

Electronic Access

 

    This final rule is accessible via the Internet at the Office of the 

Federal Register's Web site at http://www.gpoaccess.gov/index.html. 

Background information and documents are available at the NMFS Office 

of Science and Technology Web site at http://www.countmyfish.noaa.gov/index.html.

 

Background

 

    The action amends regulations at 50 CFR 600.1400 that implement the 

National Saltwater Angler Registry and State Exemption Program (NSAR). 

The rule established the requirements and procedures for anglers, spear 

fishers and for-hire fishing vessels to register with NMFS unless 

exempt from the registration requirement. The NSAR regulations also 

established the requirements and procedures whereby states may be 

designated as Exempted States. The anglers and for-hire fishing vessels 

licensed or registered by Exempted States, and those anglers and 

vessels that are not required to be licensed or registered under the 

laws of such states, are not required to register with NMFS.

    Based on its experience with administering NSAR and input from 

states, NMFS has determined that minor revisions to the rule are needed 

to clarify and update certain provisions in order to address the 

following objectives: (1) Eliminate duplicative permitting and 

registration requirements for holders of Main Hawaiian Islands Non-

commercial Bottomfish Permits; (2) allow states that exempt minors 

under the age of 17 from the state license or registration requirements 

to be eligible for Exempted State designation; (3) allow the U.S. 

Virgin Islands to be designated as an Exempted State under the 

qualifying regional survey option of the rule; and (4) clarify and 

update various provisions of the rule.

    The proposed changes were explained in the preamble to the proposed 

rule.

 

Comments and Responses

 

    On February 6, 2012, NMFS published a notice of the proposed rule 

(77 FR 5751). The public comment period ended on April 6, 2012. NMFS 

received thirteen comments on the proposed rule, including one from a 

state, one from a regional fishery management council, one from a non-

governmental organization and ten from individuals. The comments and 

responses are summarized below.

     General comment: One non-governmental organization 

commented generally in support of the proposed revisions to Sec. Sec.  

600.1400, 600.1405, 600.1416 and 600.1417 that were not otherwise 

addressed in the organization's specific comments.

    Response: NMFS acknowledges the comment.

     Section 600.1405(b)(7): NMFS proposed to clarify that the 

exception to the NSAR registration requirement for licensed commercial 

fishing vessels is only for commercial fishing and not for for-hire 

fishing.

    Comment: The Western Pacific Fishery Management Council opposed 

this proposal and requested that the exemption from registration also 

apply to for-hire fishing vessels licensed by the State of Hawaii. The 

comment noted that the State of Hawaii issues a single license, the 

``Commercial Marine License'' (CML), for both commercial fishing and 

for-hire vessels. Because the license is named a ``commercial'' marine 

license, the holders are not currently required to register with NMFS 

under the commercial license exception in Sec.  600.1405(b)(7), even 

when they are operating as for-hire fishing vessels otherwise required 

to register under Sec.  600.1405(a). The Council believes that 

requiring Hawaii-licensed for-hire vessels to be federally registered 

is unnecessary and duplicative, given the requirement for all holders 

of CML's to report trips and catch.

    Response: All states, except Hawaii, are designated as Exempted 

States and have entered into Memoranda of Agreement to provide the 

necessary data to NMFS regarding their for-hire fisheries. Only Hawaii 

would be affected by the proposed rule change. All vessels that hold 

the Hawaii ``Commercial Marine License,'' including for-hire vessels, 

are required to complete and submit trip reports to the state. Because 

Hawaii already collects for-hire catch data from the trip reports and 

submits the data to NMFS, it is not necessary at the present time to 

compile a separate list or registry of for-hire vessels for sampling 

purposes. Therefore, NMFS agrees that this proposed amendment is not 

necessary now and will defer its adoption for future consideration.

     Section 600.1405(b)(8): NMFS proposed to provide that 

holders of Main Hawaiian Islands (MHI) Non-

 

[[Page 42190]]

 

commercial Bottomfish Permits do not need to register under NSAR.

    Comments: Eight individuals and one Regional Fishery Management 

Council commented in support of this amendment.

    Response: NMFS acknowledges the comments.

     Section 600.1416(a): NMFS proposed to clarify the existing 

requirement that lists of licensed anglers/registrants submitted by 

Exempted States need to be updated at least annually.

    Comment: A state requested further information regarding what 

qualifies as acceptable annual updating.

    Response: Guidance regarding the acceptable form, procedure and 

timing of annual updates was not included in the proposed rule. Annual 

updates are addressed in the Memoranda of Agreement with each exempted 

state. Adding such guidance to the rule would require development of 

draft guidelines and opportunity for public comment as a notice of 

revised or proposed rulemaking. NMFS does not believe it is necessary 

or desirable to develop such guidance via rulemaking at this time. It 

is not feasible to anticipate all of the many ways in which states may 

choose to conduct updates. If NMFS includes an incomplete or incorrect 

description of accepted methods in the rule, flexibility to allow for 

different or innovative methods in the future would be unnecessarily 

limited. NMFS will respond to requests from any state individually 

regarding the form, procedure and timing of annual updates.

     Section 600.1416(d): NMFS proposed to provide an extra 

year for states that need to enact legislation to remain qualified for 

Exempted State designation.

    Comments: One non-governmental organization noted this revision as 

``concerning''due to the potential for delay in the capability of MRIP 

to function at full capacity in 2013 as a result of any delay in 

providing a complete state angler database.

    Response: Via MRIP, NMFS is developing, testing and implementing a 

series of improvements to the design and management of survey and 

estimation methods used to produce marine recreational fisheries 

statistics, including estimates of catch and effort. The improvements 

will address the recommendations of the National Research Council's 

2006 Review of Recreational Fisheries Survey Methods and the 

requirements of Section 401(g) of the MSA. As new and improved survey 

and estimation methods are developed through MRIP and approved by NMFS, 

they will be implemented sequentially. Accordingly, there is no single 

date for implementation of MRIP. Rather, survey and estimation 

improvements will be phased in over time as they are developed and 

approved for implementation.

    The submission of angler registry data by states supports one of 

the many components of MRIP, the creation of a list of anglers to be 

surveyed as part of the survey to develop statistics regarding angler 

effort, including fishing trip data, for the Atlantic and Gulf states 

and Puerto Rico. The current MRIP timetable for implementing system-

wide changes to these effort surveys provides for continued pilot 

testing of effort sampling designs that use both angler registries and 

other lists for persons to be sampled, including postal address and 

telephone directory lists, into 2013. Not until these current pilot 

projects are complete, in late 2013 or later, will NMFS determine what 

specific sampling design to use in MRIP effort surveys on the Atlantic 

and Gulf coasts, beginning in 2014 or later. An additional year to 

provide updated registry information will extend into 2013. This would 

allow the states to provide complete registry data by 2014, the 

earliest time by which the new effort survey designs will be in use for 

the Atlantic and Gulf coasts.

    Comment: A state commented in support of this proposal and further 

recommended that it be extended to other administrative or legal 

actions a state is required to complete to retain its eligibility for 

exempted state designation.

    Response: NMFS recognizes that some state agencies that issue 

fishing licenses may require additional time to formalize Memoranda of 

Agreement or other agreements with other state agencies to enable the 

sharing of data about state license holders. Accordingly, NMFS has 

modified the rule to include the completion of formal agreements 

between state agencies as another basis for a one year extension of 

time under Sec.  600.1416(d) of the rules.The additional year will not 

affect the timing for initiating use of the new MRIP effort survey 

designs for the Atlantic and Gulf coasts for the same reasons as stated 

in the response to the previous comment.

     Section 600.1416(d)(1): NMFS proposed to allow states that 

do not require persons who were born before June 1, 1940, to be 

licensed or registered to qualify for Exempted State designations if 

the state can demonstrate that the number of anglers so excluded is so 

small that exclusion of this group from a sample will not bias survey 

results.

    Comment: One state requested that the rule clarify what proof will 

be required to demonstrate that exclusion of a group from a sample will 

not bias survey results.

    Response: NMFS can provide case specific advice to states based on 

their specific circumstances. Such advice need not be incorporated in 

the rule. Adopting such guidance in the rule would require supplemental 

rulemaking to develop and secure public comment on undesirable limits 

to its flexibility.

     Section 600.1417(b): NMFS proposed to separate the U.S. 

Virgin Islands (USVI) and Puerto Rico into separate regions for 

purposes of submission of regional surveys of recreational fishing 

catch.

    Comments: One individual recommended that a similar amendment be 

included in the rule for the three western Pacific Territories/

Commonwealths, separating Guam, American Samoa and the Commonwealth of 

the Northern Mariana Islands into three separate regions.

    Response: NMFS proposed to separate the Caribbean region into two 

separate regions because it is expected that a survey design for the 

USVI will differ significantly from a survey design for Puerto Rico. 

Therefore, neither the USVI nor Puerto Rico would qualify for a single, 

regional survey-based exemption pursuant to Sec.  417(b). NMFS did not 

propose to separate Guam, American Samoa and the Commonwealth of the 

Northern Marianas Islands into three separate regions in the notice of 

proposed rulemaking because all three are covered by a single survey 

design as part of the WPacFIN Regional Survey. Each of the three has 

executed a MOA with NMFS and is designated as an exempted state. NMFS 

will reconsider this comment in a future rulemaking if the WPacFIN-

based regional survey no longer supports registry exemptions for the 

partners.

 

Changes From the Proposed Rule

 

    In response to public comment, NMFS made the following changes in 

the final rule:

    In Sec.  600.1405(b)(7) NMFS is not adopting the proposed amendment 

to clarify that the exception to the NSAR registration requirement for 

licensed commercial fishing vessels is only for commercial fishing and 

not for for-hire fishing.

    In Sec.  600.1416(d), NMFS modified the rule to allow a one-year 

extension of time for the completion of formal agreements between state 

agencies.

    In addition to the changes made in response to public comment as 

described above, NMFS made one

 

[[Page 42191]]

 

additional change in the final rule. In Sec.  600.1416(b)(7), the words 

``or registration'' are added for consistency with other references to 

state licenses and registrations.

 

Classification

 

    NMFS has determined that the rule is consistent with the applicable 

provisions of the Magnuson-Stevens Act and other applicable law.

    This 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 during the proposed rule stage that this rule would not 

have a significant economic impact on a substantial number of small 

entities. The factual basis for the certification was published in the 

proposed rule and is not repeated here. No comments were received 

regarding this certification. As a result, a regulatory flexibility 

analysis was not required and none has been prepared.

    This final rule modifies a collection-of-information subject to the 

Paperwork Reduction Act (PRA) and which has been approved by OMB under 

control number 0648-0578. Public reporting burden for angler 

registration is estimated to average three minutes per response, 

including the time for reviewing instructions, searching existing data 

sources, gathering and maintaining the data needed, and completing and 

reviewing the collection of information. Send comments regarding these 

burden estimates or any other aspect of this data collection, including 

suggestions for reducing the burden, to NMFS (see ADDRESSES) and by 

email to This email address is being protected from spambots. You need JavaScript enabled to view it.">This email address is being protected from spambots. You need JavaScript enabled to view it., or fax to 202-395-7285.

    Notwithstanding any other provision of the law, no person is 

required to respond to, nor shall any 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 in 50 CFR Part 600

 

    Fisheries, Fishing, Fishing vessels, Statistics.

 

    Dated: July 12, 2012.

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, NMFS amends 50 CFR part 

600 to read as follows:

 

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

 

0

1. The authority citation for part 600 continues to read as follows:

 

    Authority: 16 U.S.C. 1881.

 

 

0

2. Section 600.1400 is revised to read as follows:

 

 

Sec.  600.1400  Definitions.

 

    In addition to the definitions in the Magnuson-Stevens Fishery 

Conservation and Management Act (Magnuson-Stevens Act) and in Sec.  

600.10 of this title, the terms used in this subpart have the following 

meanings. For purposes of this subpart, if applicable, the terms used 

in this subpart supersede those used in Sec.  600.10.

    Anadromous species means the following:

 

American shad: Alosa sapidissima

Blueback herring: Alosa aestivalus

Alewife: Alosa pseudoharengus

Hickory shad: Alosa mediocris

Alabama shad: Alosa alabamae

Striped bass: Morone saxatilis

Rainbow smelt: Osmerus mordax

Atlantic salmon: Salmo salar

Chinook, or king, salmon:

Oncorhynchus tshawytscha

Coho, or silver, salmon: Oncorhynchus kisutch

Pink salmon: Oncorhynchus gorbuscha

Sockeye salmon: Oncorhynchus nerka

Chum salmon: Oncorhynchus keta

Steelhead: Oncorhynchus mykiss

Coastal cutthroat trout: Oncorhynchus clarki clarki

Eulachon or candlefish: Thaleichthys pacificus

Dolly varden: Salvelinus malma

Sheefish or inconnu: Stenodus leucichthys

Atlantic sturgeon: Acipenser oxyrhynchus oxyrhynchus

Shortnose sturgeon: Acipenser brevirostrum

Gulf sturgeon: Acipenser oxyrhynchus desotoi

White sturgeon: Acipenser transmontanus

Green sturgeon: Acipenser medirostris

 

    Angler means a person who is angling (see 50 CFR 600.10) in tidal 

waters.

    Authorized officer has the same meaning as in 50 CFR 600.10.

    Combination license means either:

    (1) A single state fishing license that permits fishing in fresh 

waters and tidal waters at one price; or

    (2) A single state license that permits a group of fishing and 

hunting activities, including fishing in tidal waters, at a price that 

is less than the sum of the cost of the individual licenses.

    Commercial fishing has the same meaning as in 16 U.S.C. 1802.

    Continental shelf fishery resources has the same meaning as in 16 

U.S.C. 1802.

    Exempted state means a state that has been designated as an 

exempted state by NMFS pursuant to Sec.  600.1415.

    For-hire fishing vessel means a vessel on which passengers are 

carried to engage in angling or spear fishing, from whom a 

consideration is contributed as a condition of such carriage, whether 

directly or indirectly flowing to the owner, charterer, operator, agent 

or any other person having an interest in the vessel.

    Indigenous people means persons who are documented members of a 

federally recognized tribe or Alaskan Native Corporation or persons who 

reside in the western Pacific who are descended from the aboriginal 

people indigenous to the region who conducted commercial or subsistence 

fishing using traditional fishing methods, including angling.

    Spearfishing means fishing for, attempting to fish for, catching or 

attempting to catch fish in tidal waters by any person with a spear or 

a powerhead (see 50 CFR 600.10).

    State has the same meaning as in 16 U.S.C. 1802.

    Tidal waters means waters that lie below mean high water and 

seaward of the first upstream obstruction or barrier to tidal action 

and that are subject to the ebb and flow of the astronomical tides 

under ordinary conditions.

 

0

3. In Sec.  600.1405, revise paragraphs (b)(4), and (b)(8) to read as 

follows:

 

 

Sec.  600.1405  Angler registration.

 

* * * * *

    (b) * * *

    (4) Holds a permit issued by NMFS for for-hire fishing under 50 CFR 

622.4(a)(1), 635.4(b), 648.4(a), or 660.707(a)(1);

* * * * *

    (8) Holds an HMS Angling permit under 50 CFR 635.4(c) or a MHI Non-

commercial Bottomfish permit under 50 CFR 665.203(a)(2);

* * * * *

 

0

4. In Sec.  600.1416:

 

[[Page 42192]]

 

0

a. Revise paragraphs (a), (b)(1), (c), (d) introductory text, and 

(d)(1); and

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b. Add paragraph (b)(7) to read as follows:

 

 

Sec.  600.1416  Requirements for exempted state designation based on 

submission of state license holder data.

 

    (a) A state must annually update and submit to NMFS, in a format 

consistent with NMFS guidelines, the name, address and, to the extent 

available in the state's database, telephone number and date of birth, 

of all persons and for-hire vessel operators, and the name and state 

registration number or U.S. Coast Guard documentation number of for-

hire vessels that are licensed to fish, or are registered as fishing, 

in the EEZ, in the tidal waters of the state, or for anadromous 

species. The Memorandum of Agreement developed in accordance with Sec.  

600.1415(b)(2) will specify the timetable for a state to compile and 

submit complete information telephone numbers and dates of birth for 

its license holders/registrants. The waters of the state for which such 

license-holder data must be submitted will be specified in the 

Memorandum of Agreement.

* * * * *

    (b) * * *

    (1) Under 17 years of age;

* * * * *

    (7) Fishing on days designated as ``free fishing days'' by states. 

``Free fishing days'' means fishing promotion programs by which states 

allow new anglers to fish for a specified day without a license or 

registration.

    (c) Unless the state can demonstrate that a given category of 

anglers is so small it has no significant probability of biasing 

estimates of fishing effort if these anglers are not included in a 

representative sample, a state may not be designated as an exempted 

state if its licensing or registration program excludes anglers in any 

category other than those listed in paragraph (b) of this section.

    (d) Required enhancements to exempted state license-holder data. An 

exempted state must submit the following angler identification data by 

Jan. 1, 2012, or within two years of the effective date of the 

Memorandum of Agreement, whichever is later, and thereafter in 

accordance with the Memorandum of Agreement. States that provide NMFS 

with notice that they are required to enact legislation or to enter 

into formal memoranda of agreement or contracts with other state 

agencies to comply with this requirement must submit the data within 

three years of the effective date of the Memorandum of Agreement:

    (1) Name, address and telephone number, updated annually, of 

excluded anglers over age 59, unless the state can demonstrate that the 

number of anglers excluded from the license or registration requirement 

based on having a date of birth before June 1, 1940 is so small it has 

no significant probability of biasing estimates of fishing effort if 

these anglers are not included in a representative sample;

* * * * *

 

0

5. In Sec.  600.1417, revise paragraphs (b)(1)(iii) through (vii), and 

(b)(3), and add paragraph (b)(1)(viii) to read as follows:

 

 

Sec.  600.1417  Requirements for exempted state designation based on 

submission of recreational survey data.

 

* * * * *

    (b) * * *

    (1) * * *

    (iii) Puerto Rico;

    (iv) U.S. Virgin Islands;

    (v) California, Oregon and Washington;

    (vi) Alaska;

    (vii) Hawaii; or

    (viii) American Samoa, Guam and the Commonwealth of the Northern 

Mariana Islands.

* * * * *

    (3) Utilize angler registry data to identify individuals to be 

surveyed by telephone, mail or Internet if such regional survey 

includes a telephone survey component; and

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