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Rule

Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; Reopening of the Application Process for the Charter Vessel and Headboat Permit Moratorium in the Gulf of Mexico

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Information about this document as published in the Federal Register.

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AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Temporary rule; emergency action.

SUMMARY:

NMFS issues this emergency rule to provide a limited reopening of the application process for the charter vessel/headboat permit moratorium for reef fish and coastal migratory pelagic fish in the Gulf of Mexico. This reopening allows qualifying persons, who can provide documentation of economic harm as a result of inability to obtain a moratorium permit, to apply for reconsideration of moratorium permit eligibility. In addition, NMFS informs the public of the approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of the collection-of-information requirements contained in this emergency rule and publishes the OMB control numbers for those collections. The intended effect of this emergency rule is to eliminate adverse socio-economic impacts on eligible Gulf charter vessel/headboat owners and operators while maintaining the integrity of the permit moratorium and its objectives.

DATES:

This rule is effective April 1, 2005 through September 28, 2005.

ADDRESSES:

Copies of the required regulatory analysis supporting this emergency rule may be obtained from the Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702.

Comments regarding the collection-of-information requirements contained in this emergency rule should be sent to Robert Sadler, Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702, and by e-mail to Start Printed Page 16755 David_Rostker@omb.eop.gov, or by fax to 202-395-7285.

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FOR FURTHER INFORMATION CONTACT:

Phil Steele, 727-570-5305; fax: 727-824-5308, e-mail: Phil.Steele@noaa.gov.

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SUPPLEMENTARY INFORMATION:

The fishery for reef fish is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Reef Fish FMP) that was prepared by the Gulf of Mexico Fishery Management Council (Council). The fisheries for coastal migratory pelagic resources are managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (Coastal Migratory Pelagics FMP) that was prepared jointly by the Council and the South Atlantic Fishery Management Council. These FMPs were approved by NMFS and implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

Background

The Council, in cooperation with the Gulf charter vessel/headboat industry, developed Amendment 14 to the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (Amendment 14) and Amendment 20 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Amendment 20) to address issues of increased fishing mortality and fishing effort in the for-hire (charter vessel/headboat) sector of the recreational fishery in the Gulf of Mexico. These two amendments proposed to establish a 3-year moratorium on the issuance of charter vessel or headboat permits for the reef fish fishery and coastal migratory pelagics fishery in the exclusive economic zone (EEZ) of the Gulf of Mexico. The intended effect of these amendments was to cap the number of for-hire vessels operating in these fisheries while the Council evaluates the need for additional measures that may be necessary to rebuild these fishery resources and achieve optimum yield. The objective of capping the number of for-hire vessels was to be achieved via restrictive permit eligibility criteria based on permit history, participation as a historical captain, or vessel under construction parameters. NMFS approved Amendments 14 and 20 and promulgated the charter vessel/headboat permit moratorium regulations (67 FR 43558, June 28, 2002) to implement the amendments.

Soon after implementation of the charter vessel/headboat permit moratorium, NMFS and the Council determined that the amendments' implementing regulations contained an error relating to one of the eligibility criteria and, therefore, did not correctly reflect the action taken by the Council. As a result of the erroneous criterion, some persons entitled to receive a charter vessel/headboat permit would not have been able to obtain a permit. The Council, at its September and November 2002 meetings, provided further clarification of Council intent regarding the eligibility criteria that resulted in corrected Amendments 14 and 20. To maintain continuity in these fisheries until the error could be resolved through normal rulemaking, NMFS published an emergency rule (67 FR 77193, December 17, 2002) to extend the effective date of open access permits and to extend the date on which moratorium permits were to be required under the original rule. NMFS published a proposed rule (68 FR 11794, March 12, 2003) and a final rule (68 FR 26230, May 15, 2003) to implement the corrected Amendments 14 and 20. This final rule corrected the eligibility criterion; reopened the application process for obtaining a moratorium permit; again extended the effective dates of open access permits; again extended the applicable deadlines for applying for and obtaining moratorium permits; and extended the expiration date of the moratorium to account for the delay in implementation.

Need for This Emergency Rule

The intended effect of the moratorium was to cap the number of charter vessels and headboats operating in the Gulf reef fish and Gulf coastal migratory pelagic fisheries. Permit applicants were required to submit applications within a 90-day period. Since implementation of the moratorium, and particularly more recently, NMFS and the Council have become aware via numerous letters and phone calls that a substantial number of historical participants in these Gulf fisheries who meet the original moratorium permit eligibility requirements failed, for a variety of reasons, to submit a timely completed application and, therefore, never obtained the permit. As a result, the moratorium has had a more restrictive effect than was intended, and an estimated 34-810 qualifying historical participants may have suffered economic harm because they can no longer participate in these fisheries in the same manner as they did prior to the moratorium. The potential associated economic impact across all potentially affected vessels (34-810) is estimated to equate to approximately $2.6 million (34*$77,000) to $62 million (810*$77,000) in lost receipts and $1.3 million (34*$37,000) to $30 million (810*$37,000) in lost profits on an annual basis. These estimates would increase if some of the entities are headboats.

The Council, at its October 2004 meeting, reconsidered this issue and passed a motion requesting NMFS to implement an emergency rule to reopen the application period for the charter/headboat moratorium in the Gulf for 60 days based upon the economic harm to historical participants who were unintentionally excluded from the fishery, as long as the affected vessels demonstrate eligibility based upon the original moratorium permit criteria and some dependence on charter/headboat fishing in the Gulf. NMFS concurs with the Council's request and is issuing this emergency rule to implement the reopening of the permit moratorium application process.

Provisions of This Emergency Rule

Under this emergency rule, the application process for obtaining a charter vessel/headboat permit for Gulf reef fish or Gulf coastal migratory pelagic fish under the moratorium will be reopened for 120 days. Although the Council requested a 60-day reopening, NMFS believes that 120 days is appropriate to ensure adequate time for notifying potential applicants of the reopening and for applicants to compile necessary documentation and complete the application process while not placing an undue burden on the agency to continually accept new applications.

Eligibility Requirements

Eligibility for charter vessel/headboat permits under this reopening would be limited to applicants who: (1) meet one of the three original moratorium permit eligibility criteria; (2) were not issued an original charter vessel/headboat permit or letter of eligibility under the moratorium for which they were eligible; and (3) can document economic harm as a result of failure to obtain an original charter vessel/headboat permit under the moratorium. See § 622.4(r)(14)(i) in the accompanying codified text for a restatement of the original moratorium permit eligibility criteria.

Economic harm, for the purposes of this emergency rule, is based on the concept that a person who was eligible to receive a moratorium permit, but failed to do so, suffered an actual realized loss as a result of the inability to operate in these fisheries after the Start Printed Page 16756moratorium in the same manner as he/she did prior to the moratorium. For example, a person who owned a charter vessel or headboat with an open access permit for Gulf reef fish or coastal migratory pelagic fish and fished in the Gulf of Mexico during the period March 29, 2000, through November 12, 2003, prior to the moratorium, but failed to obtain a moratorium permit, would meet the economic harm standard. However, a historical captain who never obtained an open access permit for these fisheries and who failed to obtain a moratorium permit would not meet the standard because the opportunity to participate in the same manner as prior to the moratorium (i.e., as a captain) was not lost.

NMFS considered a variety of evidence that would indicate operation of a vessel in the Gulf. It was concluded that the most reliable forms would include, but not be limited to, proof of:

1. Issuance of an open access charter vessel/headboat permit for Gulf reef fish during the period March 29, 2000, through November 12, 2003; or

2. Issuance of an open access charter vessel/headboat permit for coastal migratory pelagic fish during the period March 29, 2000, through November 12, 2003, and:

a. A documented homeport in the Gulf for the permitted vessel during that period;

b. Appropriately dated logbooks, passenger manifests, or fuel receipts for the permitted vessel that clearly indicate operation within the Gulf; or

c. Appropriately dated receipts for dock rental for the permitted vessel from a Gulf-based marina.

Application Requirements and Procedures

An applicant who desires a charter vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf reef fish must submit an application for such permit to the Regional Administrator, Southeast Region, NMFS (RA) postmarked or hand-delivered not later than August 1, 2005. Failure to apply by the above deadline will preclude permit issuance even when the applicant meets the eligibility criteria for such permit. Application forms are available from the RA. The information requested on the application form varies according to the eligibility criterion that the application is based upon as indicated in § 622.4(r)(14). An applicant who believes he/she meets the permit or application history criterion based on ownership of a vessel under a different name, for example, as may have occurred when ownership has changed from individual to corporate or vice versa, must document his/her continuity of ownership.

Issuance of Initial Permits/Letters of Eligibility

If a complete application is submitted in a timely manner and the applicable eligibility requirements specified in § 622.4(r)(14) are met, the RA will issue a charter vessel/headboat permit for Gulf coastal migratory pelagic fish and/or Gulf reef fish or a letter of eligibility for such fisheries, as appropriate, and mail it to the vessel owner or, in the case of a letter of eligibility, the applicant.

If an eligible applicant does not currently own a vessel to which the charter vessel/headboat moratorium permit could be applied, the RA will issue such applicant a letter of eligibility. The letter of eligibility is valid until redeemed for a moratorium permit or until the moratorium expires, whichever occurs first. The letter of eligibility may be redeemed through the RA for a charter vessel/headboat permit for Gulf coastal migratory pelagic fish and/or Gulf reef fish, as appropriate, based on the applicant's eligibility. However, a letter of eligibility issued based on eligibility as a historical captain is valid only for a vessel of the same or lesser authorized passenger capacity as the vessel used to document earned income in § 622.4(r)(14)(i)(C)(2) and is valid only for the fisheries certified on the application under § 622.4(r)(14)(i)(C)(1). Further, such letter of eligibility may only be redeemed for a charter vessel/headboat permit with a historical captain endorsement, and such a permit is only valid on a vessel that the historical captain operates as a captain.

Justification for Emergency Rule

For the reasons stated above, this emergency rule meets NMFS policy guidelines for the use of emergency rules (62 FR 44421, August 21, 1997), because the emergency situation results from recently discovered circumstances; presents a serious management problem in the fishery; and the emergency rule realizes immediate benefits that outweigh the value of prior notice, opportunity for public comment, and deliberative consideration expected under the normal rulemaking process.

Classification

The Assistant Administrator for Fisheries, NOAA (AA), has determined that this emergency rule is necessary to minimize adverse social and economic impacts (i.e., unintended exclusion of participation in these fisheries). The AA has also determined that this rule is consistent with the Magnuson-Stevens Act and other applicable laws.

This emergency rule has been determined to be not significant for purposes of Executive Order 12866.

This emergency rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.

The AA finds good cause to waive the requirement to provide prior notice and opportunity for public comment, pursuant to authority set forth at U.S.C. 553(b)(B), as such procedures would be impracticable and contrary to the public interest. This is true because further delay in implementation will only prolong the adverse impacts to former participants currently excluded from participation in the fishery. Specifically, over 30 percent of qualified charter vessels and headboats have been excluded from continued legal participation in the Gulf reef fish and Gulf coastal migratory pelagic fisheries, which has resulted in a loss of all income for a substantial portion of the fishery, as well as a potential increase in the cost of fishing trips to the members of the public who seek to take such fishing trips. Although qualified applicants who did not obtain permits can purchase a permits from participants in the fishery, these permits have sold for approximately $10,000, which is a substantial cost. Because this is a substantive rule that relieves a restriction (i.e., the existing application deadline), as discussed above, it is not subject to the 30-day delayed effectiveness provision of the Administrative Procedure Act pursuant to 5 U.S.C. 553(d)(1).

This emergency rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), namely the charter vessel/headboat permit application, submission of information on vessel construction, submission of information on historical captain eligibility, and submission of documentation of economic harm. These requirements have been approved by the Office of Management and Budget (OMB) under control number 0648-0520. Public reporting burdens for the charter vessel/headboat permit application, submission of information on vessel construction, submission of information on historical captain eligibility, and submission of documentation of economic harm, are estimated to average 20 minutes, 2 hours, 2 hours, and 30 minutes per response, respectively, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the Start Printed Page 16757data needed, and completing and reviewing the collection of information. Public comment is sought regarding: whether these proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the burden estimates; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collections of information, including through the use of automated collection techniques or other forms of information technology. 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 e-mail to David_Rostker@omb.eop.gov, or fax to 202-395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to 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.

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List of Subjects in 50 CFR Part 622

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Dated: March 21, 2005.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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For the reasons set out in the preamble,

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PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

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1. The authority citation for part 622 continues to read as follows:

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Authority: 16 U.S.C. 1801 et seq.

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2. In § 622.4, suspend the last sentence of paragraph (r) introductory text and paragraphs (r)(1) through (r)(8); add two new sentences at the end of paragraph (r) introductory text; and add new paragraphs (r)(13) through (r)(18) to read as follows:

End Amendment Part
Permits and fees.
* * * * *

(r) * * * However, to accommodate an emergency reopening of the permit application process, through September 28, 2005, paragraphs (r)(1) through (r)(8) of this section have been suspended, and paragraphs (r)(13) through (r)(18) of this section that outline applicable requirements and procedures related to the reopening of the permit application process have been added. The purpose of reopening the application process is to mitigate unintended economic harm that resulted from qualified applicants' inability to obtain a charter vessel/headboat permit under the moratorium and, therefore, the inability to participate in those fisheries in the same manner they participated prior to the moratorium.

* * * * *

(13) Applicability. The only valid charter vessel/headboat permits for Gulf coastal migratory pelagic fish or Gulf reef fish are those that have been or are issued under the moratorium criteria in this paragraph (r). Existing permits may be renewed, are subject to the transferability provisions in paragraph (r)(9) of this section, and are subject to the requirement for timely renewal in paragraph (r)(10) of this section.

(14) Eligibility requirements for a permit under the reopening of the moratorium application process. Eligibility for a charter vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf reef fish under this reopening of the application process is limited to applicants who were not issued an original charter vessel/headboat permit or a letter of eligibility under the moratorium for which they were eligible based on one of the three original moratorium permit eligibility criteria as specified in paragraphs (r)(14)(i)(A), (r)(14)(i)(B), or (r)(14)(i)(C) of this section and who can document economic harm, as specified in paragraph (r)(14)(ii) of this section, as a result of failure to obtain an original charter vessel/headboat permit under the moratorium.

(i) Original moratorium permit eligibility criteria. The original moratorium permit eligibility criteria include--

(A) An owner of a vessel that had a valid charter vessel/headboat permit for Gulf reef fish or coastal migratory pelagic fish on March 29, 2001, or held such a permit during the preceding year or whose application for such permit had been received by NMFS by March 29, 2001, and was being processed or awaiting processing.

(B) Any person who can provide NMFS with documentation verifying that, prior to March 29, 2001, he/she had a charter vessel or headboat under construction and that the associated expenditures were at least $5,000 as of that date. If the vessel owner was constructing the vessel, the vessel owner must provide NMFS with receipts for the required expenditures. If the vessel was being constructed by someone other than the owner, the owner must provide NMFS with a copy of the contract and/or receipts for the required expenditures.

(C) A historical captain, defined for the purposes of this paragraph (r) as a person who provides NMFS with documentation verifying that -

(1) Prior to March 29, 2001, he/she was issued either a USCG Operator of Uninspected Passenger Vessel license (commonly referred to as a 6-pack license) or a USCG Masters license; operated, as a captain, a federally permitted charter vessel or headboat in the Gulf reef fish and/or coastal migratory pelagic fisheries; but does not have a fishery permit issued in his/her name; and

(2) At least 25 percent of his/her earned income was derived from charter vessel or headboat fishing in one of the following years: 1997, 1998, 1999, or 2000.

(ii) Proof of economic harm. Economic harm, for the purposes of this emergency rule, is based on the concept that a person suffered an actual realized loss as a result of the inability to operate in these fisheries after the moratorium in the same manner as he/she did prior to the moratorium. Proof of economic harm would include, but would not be limited to, proof of -

(A) Issuance of an open access charter vessel/headboat permit for Gulf reef fish during the period March 29, 2000, through November 12, 2003.

(B) Issuance of an open access charter vessel/headboat permit for coastal migratory pelagic fish during the period March 29, 2000, through November 12, 2003, and--

(1) A documented homeport in the Gulf for the permitted vessel during that period;

(2) Appropriately dated logbooks, passenger manifests, or fuel receipts for the permitted vessel that clearly indicate a location within the Gulf; or

(3) Appropriately dated receipts for dock rental for the permitted vessel from a Gulf-based marina.

(15) Application requirements and procedures under the reopening of the permit application process. An applicant who desires a charter vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf reef fish must submit an application for such permit to the RA postmarked or hand-delivered not later than August 1, 2005. An applicant who believes he/she meets the permit or application history criterion based on ownership of a vessel under a different name, for example, as may have occurred when ownership has changed from individual to corporate or Start Printed Page 16758vice versa, must document his/her continuity of ownership. Application forms are available from the RA. The information requested on the application form varies according to the eligibility criterion that the application is based upon as indicated in paragraph (r)(14) of this section; however, all applicants must provide a copy of the applicable, valid USCG Operator of Uninspected Passenger Vessel license or Masters license and valid USCG Certificate of Inspection. Failure to apply in a timely manner will preclude permit issuance even when the applicant meets the eligibility criteria for such permit.

(16) Incomplete applications. If an application that is postmarked or hand-delivered in a timely manner is incomplete, the RA will notify the applicant of the deficiency. If the applicant fails to submit an application that corrects the deficiency and that is received by the RA within 60 days of the date of the RA's notification, the application will be considered abandoned.

(17) Issuance of permits. If an applicant submits a complete application in a timely manner and the applicable eligibility requirements specified in paragraph (r)(14) of this section are met, the RA will issue a charter vessel/headboat permit for Gulf coastal migratory pelagic fish and/or Gulf reef fish or a letter of eligibility for such fisheries, as appropriate, and mail it to the vessel owner or, in the case of a letter of eligibility, to the applicant. If an eligible applicant does not currently own a vessel to which the charter vessel/headboat moratorium permit could be applied, the RA will issue such applicant a letter of eligibility. The letter of eligibility is valid until redeemed for a moratorium permit or until the moratorium expires, whichever occurs first. The letter of eligibility may be redeemed through the RA for a charter vessel/headboat permit for Gulf coastal migratory pelagic fish and/or Gulf reef fish, as appropriate, based on the applicant's eligibility. However, a letter of eligibility issued based on eligibility as a historical captain is valid only for a vessel of the same or lesser authorized passenger capacity as the vessel used to document earned income in paragraph (r)(14)(i)(C)(2) of this section and is valid only for the fisheries certified on the application under paragraph (r)(14)(i)(C)(1) of this section. Further, such letter of eligibility may be redeemed only for a charter vessel/headboat permit with a historical captain endorsement, and such a permit is valid only on a vessel that the historical captain operates as a captain.

(18) Notification of ineligibility. If the applicant does not meet the applicable eligibility requirements of paragraph (r)(14) of this section, the RA will notify the applicant, in writing, of such determination and the reasons for it as soon as possible, but not later than September 28, 2005. The RA's decision will constitute the final administrative action by NMFS regarding permit eligibility.

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[FR Doc. 05-6509 Filed 3-31-05; 8:45 am]

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