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 Submission@omb.eop.gov,
or by fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Peter Hood, Southeast Regional Office,
telephone 727-824-5305, email Peter.Hood@noaa.gov.
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:
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).