NMFS proposes regulations to implement management measures described in Amendment 34 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) prepared by the Gulf of Mexico Fishery Management Council (Council). If implemented, this rule would remove the income qualification requirements for renewal of Gulf of Mexico (Gulf) commercial reef fish permits and increase the maximum crew size to four for dual-permitted vessels (i.e. vessels that possess both a charter vessel/headboat permit for Gulf reef fish and a commercial vessel permit for Gulf reef fish) that are fishing commercially. The intent of this rule is to remove permit requirements that may no longer be applicable to current commercial fishing practices and to improve vessel safety in the Gulf reef fish fishery.
Written comments must be received on or before August 17, 2012.
ADDRESSES: You may submit comments on the proposed rule identified by ``NOAA-NMFS-2012-0025'' by any of the following methods:
Electronic submissions: Submit electronic comments via the Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
Mail: Steve Branstetter, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
Instructions: All comments received are a part of the public record and NMFS will post them to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.
To submit comments through the Federal e-Rulemaking Portal: http://www.regulations.gov, enter ``NOAA-NMFS-2011-0025'' in the search field and click on ``search''. After you locate the proposed rule, click the ``Submit a Comment'' link in that row. This will display the comment web form. You can enter your submitter information (unless you prefer to remain anonymous), and type your comment on the web form. You can also attach additional files (up to 10MB) in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Comments received through means not specified in this rule will not be considered.
For further assistance with submitting a comment, see the ``Commenting'' section at http://www.regulations.gov/#!faqs or the Help section at http://www.regulations.gov.
Electronic copies of Amendment 34, which includes an environmental assessment and a regulatory impact review, may be obtained from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov/sf/GrouperSnapperandReefFish.htm.
Comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted in writing to Anik Clemens, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701; and OMB, by email at OIRA Submission@omb.eop.gov, or by fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Steve Branstetter, Southeast Regional Office, NMFS, telephone 727-824-5305; email: Steve.Branstetter@noaa.gov.
SUPPLEMENTARY INFORMATION: NMFS and the Council manage the Gulf reef
fish fishery under the FMP. The Council prepared the FMP and NMFS
implements the FMP under the authority of the Magnuson-Stevens Fishery
Conservation and Management Act (Magunson-Stevens Act) by regulations
at 50 CFR part 622.
This rule would implement Amendment 34 to the FMP, which addresses
administrative issues relative to earned income requirements for the
renewal of commercial Gulf reef fish permits and to the maximum crew
size for dual-permitted vessels while commercially fishing. Due to
recent changes in the commercial sector of the Gulf reef fish fishery
the income qualification requirements and the crew size limit
regulations may no longer effectively serve their original purposes.
Measures Contained in This Proposed Rule
If implemented, this rule would eliminate the income qualification
requirements for renewal of commercial Gulf reef fish permits and
increase the maximum crew size from three to four for dual-permitted
vessels.
Eliminating the Income Qualification Requirements for Commercial Gulf
Reef Fish Permits
Under the current regulations, an applicant renewing a commercial
vessel permit for Gulf reef fish must attest that greater than 50
percent of his/her earned income is derived from commercial fishing
(i.e. harvest and first sale of fish) or charter fishing during either
of the 2 calendar years preceding the application. Applicants must
complete the Income Qualification Affidavit section on the Federal
Permit Application for Vessels Fishing in the EEZ (Federal Permit
Application) as proof of meeting permit income qualification
requirements for commercial Gulf reef fish vessel permits.
This rule proposes to eliminate the income requirement because it
is no longer applicable to current commercial fishing practices. The
income requirement is not compatible with recent regulatory changes in
the Gulf reef fish fishery, such as the implementation of individual
fishing quota (IFQ) programs for red snapper and grouper/tilefish
species, which account for the majority of Gulf reef fish landings.
Regardless of the proportion of a fisherman's income derived from
commercial or charter fishing, participation in these IFQ fisheries is
restricted to those who possess quota shares or who sell annual
allocation. Removing the income requirement will also provide more
flexibility to fishermen and allow them to earn income in other
occupations. This added flexibility would allow some fishermen to renew
their permits even if they did not have the opportunity to earn enough
income from fishing. In addition, this income requirement is relatively
easy to meet or circumvent, and validation of this income requirement
has been difficult. Finally, the elimination of income requirements
would also decrease the administrative burden to NMFS and the applicant
by simplifying the permit renewal process.
Increasing the Maximum Crew Size for Dual-Permitted Vessels
The final rule for Amendment 1 to the FMP (55 FR 2078, January 22,
1990) established the commercial vessel permit for Gulf reef fish and
the three-person crew size for dual-permitted vessels when fishing
commercially. In 2006, Amendment 18A to the FMP modified the crew size
rule to add the Coast Guard certificate of inspection (COI) provision
that allowed vessels with a COI to carry a minimum crew size specified
by the COI if it was greater than three. Amendment 18A was intended to
resolve conflict between the Council's maximum crew size rule and the
Coast Guard's minimum crew size requirements for vessels with a COI,
which was at least four.
Historically, limiting the crew size on a dual-permitted vessel
when fishing commercially may have served to prevent a vessel from
taking out a number of passengers under the pretense of making a
charter trip, but subsequently selling the catch. Under current
commercial fishing practices, limiting the crew size of a vessel to
prevent selling catch caught on a charter trip is no longer a primary
concern. IFQ programs now regulate commercially harvested red snapper,
grouper, and tilefish species, which constitute the majority of the
commercial reef fish landings. In addition, all commercial Gulf reef
fish vessels are required to be equipped with vessel monitoring
systems. The strict reporting requirements of these management measures
make it clear when a vessel is operating as a commercial vessel. The
amount of IFQ shares owned by a permit holder limits the amount of fish
harvested by a vessel regardless of the crew size. In addition, due to
the costs involved with carrying extra crew, there
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would be little incentive to exceed the necessary crew size.
Currently, 154 vessels possess both a charter vessel/headboat
permit and a commercial vessel permit for Gulf reef fish. These vessel
are considered to be dual-permitted vessels. Unless the vessel has a
COI, dual-permitted vessels are limited to a three-person maximum crew
size. The current crew restriction limits are of particular concern for
vessels conducting commercial spearfishing operations. These activities
would be considered commercial diving operations under the Occupational
Safety and Health Administration (OSHA) regulations. The OSHA
regulations for SCUBA diving operations (29 CFR 1910.424(c)) require
that: (1) A standby diver is available while the SCUBA diver is in the
water and (2) the SCUBA diver must be either line-tended or accompanied
by another diver with continuous visual contact. The OSHA regulations
aim to establish safe operating procedures for conducting commercial
SCUBA diving; however, the three-person crew limit for dual-permitted
vessels impairs the crew's ability to comply with OSHA and decreases
the safety at sea, which violates National Standard 10 of the Magnuson-
Stevens Act (16 U.S.C. 1851(a)(10)). Based on OSHA regulations, if two
divers are underwater spearfishing, the third crewmember at the surface
would need to handle the vessel and be the standby diver. If it is
necessary to have two crew members at the surface, only one diver could
be underwater and would need to be line-tended. Spearfishing while
being line-tended could cause additional safety issues.
In addition, the Coast Guard Diving Policies and Procedures Manual
(2009) states that ``[a] minimum of four personnel consisting of a
diving supervisor, diver, diver tender and a standby diver are required
to conduct SCUBA operations.'' While this is not a regulation
applicable to commercial spearfishing vessels, it provides guidance to
increase safety of the diving personnel.
This rule proposes to increase the crew size from three to four for
dual-permitted vessels to improve the safety at sea issues while
commercially spearfishing, which would comply with National Standard 10
of the Magnuson-Stevens Act. In addition, it allows commercial
spearfishing vessels to comply with the OSHA diving regulations and the
U.S. Coast Guard guidance for conducting diving operations.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
AA has determined that this proposed rule is consistent with Amendment
34, 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 adopted, 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 existing income
qualification requirements that may no longer be applicable to the
current commercial fishing environment and to improve vessel safety in
the Gulf reef fish fishery. The Magnuson-Stevens Act provides the
statutory basis for this proposed rule.
This rule, if implemented, would be expected to directly affect 920
vessels that possess a commercial reef fish permit. Among these
entities, 154 vessels also possess a reef fish for-hire permit. These
vessels would be affected by both actions in this proposed rule. The
average commercial vessel in the reef fish fishery is estimated to earn
approximately $48,000 (2010 dollars).
The for-hire fleet is comprised of charterboats, which charge a fee
on a vessel basis, and headboats, which charge a fee on an individual
angler (head) basis. The average charterboat is estimated to earn
approximately $89,000 (2010 dollars) in annual revenue, while the
average headboat is estimated to earn approximately $469,000 (2010
dollars). The average revenue profile of dual-permitted vessels is not
available.
There have been no other small entities identified 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 fish harvesting is classified as a small business
if it is independently owned and operated, is not dominant in its field
of operation (including its affiliates), and has combined annual
receipts not in excess of $4.0 million (NAICS code 114111, finfish
fishing) for all its affiliated operations worldwide. The revenue
threshold for a business involved in the for-hire fishing industry is
$7.0 million (NAICS code 713990, recreational industries). Based on the
average revenue estimates provided above, all commercial and for-hire
vessels expected to be directly affected by this proposed rule are
determined for the purpose of this analysis to be small business
entities.
Neither action in this proposed rule would be expected to result in
any reduction in profits for any small entities. The two proposed
actions would either eliminate or lessen a current restriction. The
proposed elimination of an income requirement for the Gulf commercial
reef fish permit is expected to provide the opportunity for fishermen
to increase income from non-fishing occupations without jeopardizing
their ability to renew their commercial reef fish permit. This would
also eliminate the pressure to continue to fish to maintain fishing
income to satisfy a permit requirement when personal, economic, or
other factors may suggest fishing should not occur. Finally, this rule
would reduce the reporting and recordkeeping burdens currently imposed
on applicants. In particular, applicants would no longer be required to
complete the Income Qualification Affidavit section on the Federal
Permit Application for Vessels Fishing in the EEZ (Federal Permit
Application) as proof of meeting permit income qualification
requirements for commercial Gulf reef fish vessel permits. As a result,
although the effects are not quantifiable with available data, this
proposed action would be expected to increase the economic benefits to
small entities.
The proposed increase in the maximum crew size from three to four
persons for dual-permitted vessels would allow increased flexibility
for affected vessels to carry the number of crew best suited to the
needs or conditions of the trip. As a result, although the effects are
again unquantifiable with available data, increased economic benefits
would be expected to accrue to fishermen as a result of this increased
flexibility. Therefore, the economic effects on small entities of this
proposed rule, if implemented, are expected to be positive and not
constitute a significant economic impact on a substantial number of
small entities.
Because this proposed rule, if implemented, would not be expected
to have a significant economic impact on any small entities, 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
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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 Office of Management and Budget (OMB)
control number.
This proposed rule contains collection-of-information requirements
subject to the PRA. NMFS estimates the removal of the income
qualification requirements for commercial Gulf reef fish permit holders
will result in a net decrease in the time to complete the Federal
Permit Application (for all applicants), however, the current burden
estimate (20 minutes per applicant) to complete the application form
would not decrease because the time to complete the Income
Qualification Affidavit is minimal compared to the time to complete the
entire application.
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).
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
Dated: July 13, 2012.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, performing the
functions and duties of the Assistant Administrator for Fisheries,
National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 622 is
proposed to be 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 Sec. 622.2, the definition for ``charter vessel'' is revised
to read as follows:
Sec. 622.2 Definitions and acronyms.
* * * * *
Charter vessel means a vessel less than 100 gross tons (90.8 mt)
that is subject to the requirements of the USCG to carry six or fewer
passengers for hire and that engages in charter fishing at any time
during the calendar year. A charter vessel with a commercial permit, as
required under Sec. 622.4(a)(2), is considered to be operating as a
charter vessel when it carries a passenger who pays a fee or when there
are more than three persons aboard, including operator and crew, except
for a charter vessel with a commercial vessel permit for Gulf reef
fish. A charter vessel that has a charter vessel permit for Gulf reef
fish and a commercial vessel permit for Gulf reef fish is considered to
be operating as a charter vessel when it carries a passenger who pays a
fee or when there are more than four persons aboard, including operator
and crew. A charter vessel that has a charter vessel permit for Gulf
reef fish, a commercial vessel permit for Gulf reef fish, and a valid
Certificate of Inspection (COI) issued by the USCG to carry passengers
for hire will not be considered to be operating as a charter vessel
provided--
(1) It is not carrying a passenger who pays a fee; and
(2) When underway for more than 12 hours, that vessel meets, but
does not exceed the minimum manning requirements outlined in its COI
for vessels underway over 12 hours; or when underway for not more than
12 hours, that vessel meets the minimum manning requirements outlined
in its COI for vessels underway for not more than 12 hours (if any),
and does not exceed the minimum manning requirements outlined in its
COI for vessels that are underway for more than 12 hours.
* * * * *
3. In Sec. 622.4, paragraphs (m)(3), (m)(4), and (m)(5) are
removed; paragraph (m)(6) is redesignated as paragraph (m)(3); and
paragraphs (a)(2)(v) and (m)(2) are revised to read as follows:
Sec. 622.4 Permits and fees.
(a) * * *
(2) * * *
(v) Gulf reef fish. For a person aboard a vessel to be eligible for
exemption from the bag limits, to fish under a quota, as specified in
Sec. 622.42(a)(1), or to sell Gulf reef fish in or from the Gulf EEZ,
a commercial vessel permit for Gulf reef fish must have been issued to
the vessel and must be on board. If Federal regulations for Gulf reef
fish in subparts A, B, or C of this part are more restrictive than
state regulations, a person aboard a vessel for which a commercial
vessel permit for Gulf reef fish has been issued must comply with such
Federal regulations regardless of where the fish are harvested. See
paragraph (a)(2)(ix) of this section regarding an IFQ vessel account
required to fish for, possess, or land Gulf red snapper or Gulf
groupers and tilefishes and paragraph (a)(2)(xiv) of this section
regarding an additional bottom longline endorsement required to fish
for Gulf reef fish with bottom longline gear in a portion of the
eastern Gulf. See paragraph (m) of this section regarding a limited
access system for commercial vessel permits for Gulf reef fish.
* * * * *
(m) * * *
(2) A permit holder may transfer the commercial vessel permit for
Gulf reef fish to another vessel owned by the same entity. A permit
holder may also transfer the commercial vessel permit for Gulf reef
fish to the owner of another vessel or to a new vessel owner when he or
she transfers ownership of the permitted vessel.