06-4554. Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Limited Access Program for Gulf Charter Vessels and ...

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement Amendment 17 to the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (Amendment 17) and Amendment 25 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Amendment 25) prepared by the Gulf of Mexico Fishery Management Council (Council). This final rule establishes a limited access system for charter vessel/headboat (for-hire) permits for the reef fish and coastal migratory pelagic fisheries in the exclusive economic zone (EEZ) of the Gulf of Mexico and will continue to cap participation at current levels. In addition, this final rule incorporates a number of minor revisions to remove outdated regulatory text and to clarify regulatory text. The intended effect of this final rule is to provide for biological, social, and economic stability in these for-hire fisheries.

DATES:

This final rule is effective June 15, 2006.

ADDRESSES:

Copies of the Final Regulatory Flexibility Analysis (FRFA) are available from Jason Rueter, NMFS, Southeast Regional Office, 263 13^th Avenue South, St. Petersburg, FL 33701; telephone [phone]; fax [phone]; e-mail [e-mail].

FOR FURTHER INFORMATION CONTACT:

Jason Rueter, telephone: [phone]; fax: [phone]; e-mail: [e-mail].

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) prepared by the 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) 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.

NMFS approved Amendments 17 and 25 on May 8, 2006. NMFS published the proposed rule to implement Amendments 17 and 25 and requested public comment on the proposed rule through April 27, 2006 (71 FR 12662, March 13, 2006). The rationale for the measures in Amendments 17 and 25 is provided in the preamble to the proposed rule and is not repeated here.

Comments and Responses

NMFS received one comment on the proposed rule.

Comment: One commenter requested the Council create a new permit for catch and release fishing only for small charter operators (four or less passengers).

Response: The purpose of this rule is to continue the cap on participation in the for-hire sector of the respective fisheries. This comment is beyond the scope of the proposed rule and, therefore, is not addressed. NMFS will forward this comment to the Council for consideration of future management actions.

Classification

The Administrator, Southeast Region, NMFS, determined Amendments 17 and 25 are necessary for the conservation and management of the reef fish and coastal migratory pelagic fisheries and are consistent with the Magnuson-Stevens Act and other applicable laws.

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

A FRFA was prepared for this action. The FRFA incorporates the initial regulatory flexibility analysis (IRFA) and a summary of the analyses completed to support the action. No public comments were received regarding the IRFA or economic issues. A summary of the analyses follows.

The Magnuson-Stevens Act provides the statutory basis for the final rule. The final rule will establish a limited access system on for-hire reef fish and coastal migratory pelagics (CMP) permits. In effect, this rule will extend indefinitely the current moratorium on these permits, which is set to expire on June 16, 2006.

The main objective of the final rule is to control increases in for-hire fishing vessels or passenger capacity while the Council determines an appropriate management strategy for the for-hire fishery. Such strategy would be in the nature of stabilizing or reducing for-hire fishing mortality for reef fish and CMP stocks that have rebuilding plans or are overfished or undergoing overfishing.

Permitting of for-hire vessels has been required since 1987 for CMP and 1996 for reef fish. It is estimated that, when the current moratorium was established in 2003, NMFS issued for-hire moratorium permits to 1,857 vessels but at the same time excluded 510 to 899 vessels. Some of the excluded vessels left the fishery before the moratorium took effect. Some of those that were still in operation but inadvertently excluded from the moratorium were allowed to re-enter the fishery through an emergency action. Both included and excluded vessels may be considered to comprise the universe of vessels affected by the final rule.

For-hire vessels with initial moratorium permits operate as charter vessels only, headboats only, or charter vessel/headboat combination. Some for-hire vessels also operate as commercial fishing vessels at certain times of the year. However, most (66.7 percent) operate as charter vessels only, and a great majority of these vessels (87.7 percent) operate in both the CMP and reef fish fisheries. About 69 percent of these vessels are individually owned and operated; 27 percent have corporate ownership; and the rest are in some other form of ownership.

Florida is the homeport state of most vessels, followed in order by Texas, Alabama, Louisiana, Mississippi, and other states. In the absence of relevant information, vessels excluded from the moratorium are deemed to have the same characteristics as those that obtained moratorium permits.

For-hire vessel costs and revenues are not routinely collected. For the purpose of this amendment, data from two previous studies (Holland et al., 1999; Sutton et al., 1999) were pooled to characterize the financial performance of for-hire vessels. Charter vessels charge their fees on a group basis while headboats do it on a per-person (head) basis. On average, a charter vessel generates $76,960 in annual revenues and $36,758 in annual operating profits. An average headboat, on the other hand, generates $404,172 in annual revenues and $338,209 in annual operating profits. Excluding fixed and other non-operating expenses, both types of for-hire operations generate positive profits. On average, both charter vessels and headboats operate at about 50 percent of their passenger capacity per trip.

The financial performance of charter vessels and headboats varies according to the size of operation (passenger capacity) and geographic areas. For headboats, revenues range from $298,812 ($263,062 profits) for 13 to 30 maximum passenger capacity to $570,376 ($460,760 profits) for 61 or greater maximum passenger capacity. For charterboats, revenues range from $70,491 ($34,949 profits) for the 6 and under maximum passenger capacity to $129,813 ($86,502 profits) for the 7-12 maximum passenger capacity vessels. Florida charter vessels generate annual revenues of $68,233 ($30,249 profits), while their counterparts in other areas earn $106,118 in annual revenues ($43,494 profits). Florida headboats generate annual revenues of $318,512 ($249,103 profits), while their counterparts in the other areas earn revenues of $630,046 ($542,425 profits). In general, then, larger for-hire vessels generate larger profits, and for-hire vessels in Florida earn lower profits than those in other areas.

A fishing business is considered a small entity if it is independently owned and operated and not dominant in its field of operation, and if it has annual receipts not in excess of $6 million in the case of for-hire entities. Given the data on revenues and profits, the for-hire vessels affected by the final rule are determined to be small business entities, so the issue of disproportionality does not arise. In general, headboat operations are larger than charter vessel operations in terms of revenues and costs as well as vessel and crew sizes and passenger capacity. There are also variations in the size of operations within the charter vessel and headboat classes.

There are two types of effects on profitability depending on whether a vessel is included or excluded in the for-hire fishery. Those included are expected to either maintain or increase their returns from for-hire operations as they face less competition. Those excluded would continue to forgo all their profits from for-hire operations related to reef fish or CMP fisheries in the EEZ, although they may still earn profits from their state water for-hire operations or commercial fishing operations. For those that mainly depend on fishing trips in the EEZ, their profits would be substantially reduced. For those that can still operate as commercial fishing vessels or for-hire vessels in state waters, the reduction in profits may be deemed to be proportionate to their operations in the EEZ. It is likely that profits from EEZ operations are either a major component of these vessels' total profits or are crucial profit components to remain viable business operations. The final rule is, therefore, expected to significantly reduce the profits of excluded for-hire vessels. Hence, the final rule is expected to significantly reduce the profits of a substantial number of small entities. However, three issues are worth noting here. First, the emergency rule to re-open the charter permit process allowed the re-entry of some vessels excluded by the initial moratorium. Second, vessels that remain in the for-hire fishery would be in a better position to experience profit increases. Whether such profit increases would totally compensate for profit losses from excluded vessels cannot be determined. Third, future entrants into the fishery would have to expend an additional fixed cost in the form of purchase cost of the charter permit. This cost would have to be explicitly considered by new entrants as an integral part of their decision to invest in the for-hire fishery.

Because the final rule simply extends the current moratorium on the issuance of new for-hire permits, it would not impose any additional record keeping or reporting requirements. Also, all the compliance requirements currently in place will remain the same. Similarly, the final rule will not affect current permitting, certifications, and other requirements by other Federal agencies, and thus it would not in any way conflict or be duplicative of any relevant Federal rules.

The other alternatives considered in this amendment are the no action alternative, which would allow the moratorium to expire in 2006; extension of the moratorium by 5 years; and extension of the moratorium by 10 years. The alternatives that would extend the moratorium by 5 years or 10 years have similar effects as the final rule, although the magnitudes involved are lower. The no action alternative would benefit vessel operations re-entering the for-hire fishery as well as new entrants because they would not have to expend the additional cost of purchasing permits. But their entrance into the for-hire fishery would impinge on the profitability of existing vessel operations as well as potentially increase the harvest and discards of certain species that are overfished or undergoing overfishing. A reversion to open access in the for-hire fishery would also complicate the management measures the Council might adopt for the fishery to address overfishing issues. Moreover, the no action alternative would only exacerbate the excess capacity problem in the for-hire fishery, especially that portion under the present moratorium: for-hire vessels that are operating at about half their capacity.

Certain measures have already been adopted to mitigate the adverse economic impacts of the moratorium. These include (1) relatively liberal qualifying eligibility criteria for the moratorium permits, such as the inclusion of most historical participants, historical captains, and those who already committed money for the construction of vessels; (2) liberal provision for renewing for-hire permits; (3) transferability of for-hire permits, except historical captain permits; and, (4) an emergency action re-opening the moratorium permit application process to participants inadvertently excluded from the moratorium. Additionally, re-entrants and new entrants can participate in the for-hire fishery by purchasing permits from current permit holders. These features are preserved under the final rule.

Copies of the FRFA are available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 622

• Fisheries
• Fishing
• Puerto Rico
• Reporting and recordkeeping requirements
• Virgin Islands

Dated: May 11, 2006.

William T. Hogarth,

Assistant Administrator for Fisheries, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows:

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

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

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

2. In § 622.3, paragraph (b) is revised to read as follows:

§ 622.3

Relation to other laws and regulations.

* * * * *

(b) Except for regulations on allowable octocoral, Gulf and South Atlantic prohibited coral, and live rock, this part is intended to apply within the EEZ portions of applicable National Marine Sanctuaries and National Parks, unless the regulations governing such sanctuaries or parks prohibit their application. Regulations on allowable octocoral, Gulf and South Atlantic prohibited coral, and live rock do not apply within the EEZ portions of the following National Marine Sanctuaries and National Parks:

(1) Florida Keys National Marine Sanctuary (15 CFR part 922, subpart P).

(2) Gray's Reef National Marine Sanctuary (15 CFR part 922, subpart I).

(3) Monitor National Marine Sanctuary (15 CFR part 922, subpart F).

(4) Everglades National Park (36 CFR 7.45).

(5) Biscayne National Park (16 U.S.C. 410gg).

(6) Fort Jefferson National Monument (36 CFR 7.27).

* * * * *

3. In § 622.4, paragraphs (a)(1)(ii) and (r) are revised to read as follows:

§ 622.4

Permits and fees.

(a) * * *

(1) * * *

(ii) See paragraph (r) of this section regarding a limited access system for charter vessel/headboat permits for Gulf reef fish and Gulf coastal migratory pelagic fish.

* * * * *

(r) Limited access system for charter vessel/headboat permits for Gulf coastal migratory pelagic fish and Gulf reef fish. No applications for additional charter vessel/headboat permits for Gulf coastal migratory pelagic fish or Gulf reef fish will be accepted. Existing permits may be renewed, are subject to the restrictions on transfer in paragraph (r)(1) of this section, and are subject to the renewal requirements in paragraph (r)(2) of this section.

(1) Transfer of permits—(i) Permits without a historical captain endorsement. A charter vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf reef fish that does not have a historical captain endorsement is fully transferable, with or without sale of the permitted vessel, except that no transfer is allowed to a vessel with a greater authorized passenger capacity than that of the vessel to which the moratorium permit was originally issued, as specified on the face of the permit being transferred. An application to transfer a permit to an inspected vessel must include a copy of that vessel's current USCG Certificate of Inspection (COI). A vessel without a valid COI will be considered an uninspected vessel with an authorized passenger capacity restricted to six or fewer passengers.

(ii) Permits with a historical captain endorsement. A charter vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf reef fish that has a historical captain endorsement may only be transferred to a vessel operated by the historical captain, cannot be transferred to a vessel with a greater authorized passenger capacity than that of the vessel to which the moratorium permit was originally issued, as specified on the face of the permit being transferred, and is not otherwise transferable.

(iii) Procedure for permit transfer. To request that the RA transfer a charter vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf reef fish, the owner of the vessel who is transferring the permit and the owner of the vessel that is to receive the transferred permit must complete the transfer information on the reverse side of the permit and return the permit and a completed application for transfer to the RA. See paragraph (g)(1) of this section for additional transfer-related requirements applicable to all permits issued under this section.

(2) Renewal. (i) Renewal of a charter vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf reef fish is contingent upon the permitted vessel and/or captain, as appropriate, being included in an active survey frame for, and, if selected to report, providing the information required in one of the approved fishing data surveys. Surveys include, but are not limited to—

(A) NMFS' Marine Recreational Fishing Vessel Directory Telephone Survey (conducted by the Gulf States Marine Fisheries Commission);

(B) NMFS' Southeast Headboat Survey (as required by § 622.5(b)(1);

(C) Texas Parks and Wildlife Marine Recreational Fishing Survey; or

(D) A data collection system that replaces one or more of the surveys in paragraph (r)(2)(i)(A),(B), or (C) of this section.

(ii) A charter vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf reef fish that is not renewed or that is revoked will not be reissued. A permit is considered to be not renewed when an application for renewal, as required, is not received by the RA within 1 year of the expiration date of the permit.

(3) Requirement to display a vessel decal. Upon renewal or transfer of a charter vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf reef fish, the RA will issue the owner of the permitted vessel a vessel decal for the applicable permitted fishery or fisheries. The vessel decal must be displayed on the port side of the deckhouse or hull and must be maintained so that it is clearly visible.

§ 622.42

[Amended]

4. In § 622.42, paragraph (a)(3) is removed.