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.
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.
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
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
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-
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
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
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
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
In addition to the changes made in response to public comment as
described above, NMFS made one
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.
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
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
1. The authority citation for part 600 continues to read as follows:
Authority: 16 U.S.C. 1881.
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:
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
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
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.
3. In Sec. 600.1405, revise paragraphs (b)(4), and (b)(8) to read as
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);
* * * * *
4. In Sec. 600.1416:
a. Revise paragraphs (a), (b)(1), (c), (d) introductory text, and
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
(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;
* * * * *
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;
(vii) Hawaii; or
(viii) American Samoa, Guam and the Commonwealth of the Northern
* * * * *
(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