[Federal Register: March 12, 2003 (Volume 68, Number 48)]
[Proposed Rules]
[Page 11794-11799]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr03-22]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 030303053-3053-01; I.D. 022403C]
RIN 0648-AQ70
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; Revision of Charter
Vessel and Headboat Permit Moratorium Eligibility Criterion
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this proposed rule to revise, consistent with the
actions taken by the Gulf of Mexico Fishery Management Council
(Council), one of the eligibility criteria for obtaining a charter
vessel/headboat permit under the moratorium established in 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). This proposed rule would also
reopen the application process for obtaining Gulf charter vessel/
headboat moratorium permits and extend the applicable deadlines; extend
the expiration dates of valid or renewable open access permits for
these fisheries; clarify, as requested by the Gulf of Mexico Fishery
Management Council (Council), a constraint on issuance of historical
captain permits under the moratorium; and extend the expiration date of
the moratorium to account for the delay in implementation. The intended
effect of this proposed rule is to implement the charter vessel/
headboat moratorium in the Gulf of Mexico consistent with the actions
taken by the Council.
DATES: Comments must be received no later than 5 p.m., eastern time, on
March 27, 2003.
ADDRESSES: Written comments on the proposed rule must be sent to Phil
Steele, Southeast Regional Office, NMFS, 9721 Executive Center Drive
N., St. Petersburg, FL 33702. Comments also may be sent via fax to 727-
570-5583. Comments will not be accepted if submitted via e-mail or
Internet. Copies of documents supporting this proposed rule, which
include an environmental assessment, a regulatory impact review (RIR),
and an initial Regulatory Flexibility Act analysis (IRFA) and copies of
two minority reports opposing the revision of the eligibility criterion
and the procedural approach for implementation are available from the
same address.
Comments on the collection-of-information requirements contained in
this rule should be sent to Robert Sadler, Southeast Regional Office,
NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702, and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Phil Steele, telephone: 727-570-5305,
fax: 727-570-5583, e-mail: Phil.Steele@noaa.gov.
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 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 Amendments 14 and 20 to address issues of increased
fishing mortality and fishing effort in the for-hire sector of the
recreational fishery in the Gulf of Mexico. These amendments require
charter vessels and headboats operating in the fisheries for Gulf reef
fish or Gulf coastal pelagic fish to obtain a moratorium permit and
also establish a 3-year moratorium on issuance of additional permits
for these for-hire fisheries. NMFS approved Amendments 14 and 20 and
promulgated the charter vessel/headboat moratorium regulations (67 FR
43558, June 28, 2002) to implement the amendments. However, after a
recent review of the administrative record, the Council and
[[Page 11795]]
NMFS determined that the amendments contained an error relating to the
permit eligibility criteria and, therefore, did not correctly reflect
the action taken by the Council. Thus, the regulations implementing the
amendments also contained this error, and not all persons who should
have been entitled to receive charter vessel/headboat permits under the
moratorium approved by the Council would be able to receive permits
under the erroneous amendments and regulations. 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 (corrected Amendments) and requested
that NMFS implement the necessary revisions.
On December 17, 2002, NMFS issued an emergency rule (67 FR 77193),
that deferred the date that the ``moratorium permit'' is required;
automatically extended the expiration date of valid or renewable ``open
access'' permits for these fisheries; and extended the deadlines for
issuance of ``moratorium permits'' and for resolution of appeals. These
actions allow those applicants who otherwise would have been denied,
inappropriately, initial access to the fisheries to continue
participating in these fisheries, pending resolution of the error. In
addition, those applicants who qualified under the existing regulations
will be issued ``moratorium permits'' as soon as possible.
Revisions Contained in This Proposed Rule
This proposed rule would: (1) Revise, consistent with the Council's
clarification of intent, one of the eligibility criteria for obtaining
a Gulf charter vessel/headboat moratorium permit; (2) reopen the
moratorium permit application process with appropriate extension of
associated deadlines for application, issuance, appeals, etc.; (3)
further extend, automatically, the expiration dates of valid or
renewable ``open access'' permits for these fisheries until such time
that moratorium permits would be required under a final rule
implementing the corrected Amendments; (4) clarify, consistent with the
Council's intent, a constraint on issuance of moratorium permits under
the historical captain provision; and (5) extend the expiration date of
the moratorium, consistent with the Council's intent, to account for
the unanticipated delay in its implementation.
Revision of Eligibility Criterion
One of the three eligibility criteria for obtaining a Gulf charter
vessel/headboat moratorium permit, as contained in Amendments 14 and 20
and their implementing regulations, was subsequently determined to be
inconsistent with the Council's intent. The incorrect criterion was
worded as follows: `` An owner of a vessel that had a valid charter
vessel/headboat permit for Gulf reef fish or coastal migratory pelagic
fish, or whose application for such permit had been received by NMFS,
at some time during the period March 29, 2000, through March 29, 2001,
and who has such a valid permit on the effective date of the final rule
that contains this paragraph (r)(2)(i).'' Based upon the Council's
clarifications at its September and November 2002 meetings, the
criterion is proposed to be reworded to read as follows: `` 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.'' The proposed revision removes the requirement
to have had a valid permit on the effective date of the final rule that
implemented Amendments 14 and 20 (i.e., on July 29, 2002) and,
therefore, would be less restrictive.
Reopening of the Moratorium Permit Application Process
Because of the error in the eligibility criterion, NMFS is
proposing to reopen the application process for Gulf charter vessel/
headboat moratorium permits. The procedures for application,
documentation of eligibility, permit issuance, and appeals are the same
as the procedures in the existing regulations, except for the revision
to the eligibility criterion described above and necessary
reestablishment of applicable deadlines. The complete text of these
procedures is provided in Sec. 622.4(r)(1) through (r)(8) of this
proposed rule and is not repeated here. Although this reopening would
apply to all applicants, those applicants who previously applied under
the existing regulations and were advised by NMFS that they were
eligible or have already been issued a moratorium permit, need not, and
should not, reapply.
Automatic Extension of Expiration Date of Valid Open Access Permits
This proposed rule would extend, automatically, the expiration
dates of valid or renewable ``open access'' charter vessel/headboat
permits for these fisheries until such time that moratorium permits
would be required under a final rule implementing the corrected
Amendments. This will allow those applicants who would be ineligible
for a moratorium permit under the existing regulations, due to the
error in the eligibility criterion, to participate in these fisheries
while the error is addressed through the normal rulemaking initiated by
this proposed rule.
Clarification Regarding Historical Captain Moratorium Permits
NMFS determined that it needed to clarify that a historical captain
moratorium permit would not be issued to a person who has a fishery
permit issued in his/her name. Section 622.4(r)(2)(iii)(A) of this
proposed rule has been revised to reflect that intent.
Extension of the Expiration Date of the Moratorium
The Council intended that the moratorium remain in effect for 3
years from the date of effectiveness of the final rule implementing the
moratorium, i.e., through July 29, 2005. Because of the recently
discovered error in the eligibility criterion and subsequent need to
reopen the moratorium permit application process, final implementation
of the moratorium would be substantially delayed. Therefore, this
proposed rule would extend the expiration date of the moratorium
through a date that would be 3 years from the effective date of the
final rule that would implement the moratorium as revised by the
corrected Amendments.
Minority Report
Two Council minority reports contained objections to the proposed
revision of the eligibility criterion and to the procedural approach
for implementing the revision -the September 2002 report was signed by
two Council members; the December 2002 report was signed by one Council
member. Copies of the minority reports are available from NMFS (see
ADDRESSES).
Classification
At this time, NMFS has not determined whether the corrected
Amendments that this proposed rule would implement are consistent with
the national standards of the Magnuson-Stevens Act and other applicable
laws. NMFS, in making that determination, will take into account the
data, views, and comments received during the
[[Page 11796]]
comment period on the corrected Amendments.
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
NMFS prepared an IRFA that describes the economic impact this
proposed rule, if adopted, would have on small entities. A description
of the action, why it is being considered, and the legal basis for this
action are contained at the beginning of this section in the preamble
and in the SUMMARY section of the preamble. This proposed rule would
not duplicate any other requirements. A summary of the analysis
follows.
NMFS prepared an IRFA and concluded that this proposed rule, if
adopted, would have a significant economic impact on a substantial
number of small business entities. A summary of the IRFA follows.
The Magnuson-Stevens Act provides the statutory basis for the rule.
Under a rule promulgated on June 28, 2002 (67 FR 43558), all for-hire
operators in the reef fish and/or coastal migratory pelagic fisheries
in the Gulf of Mexico exclusive economic zone (EEZ) were required to
have a valid limited access moratorium permit beginning December 26,
2002. The objective of that rule is to cap the number of for-hire
vessels permitted to fish for reef fish or coastal migratory pelagics
in the EEZ of the Gulf of Mexico at the current level while the Council
assesses the actions necessary to restore overfished reef fish and king
mackerel stocks and determine whether a more comprehensive effort
management system is appropriate for these fisheries. Subsequent to
publication of the rule, it was determined that the amendment did not
correctly reflect the actions approved by the Council, resulting in the
unintentional exclusion of 935 historical participants in the fishery.
As an interim measure prior to correcting this error via normal
rulemaking, NMFS promulgated an emergency rule that extended several
dates associated with the moratorium to allow those participants
erroneously excluded from qualifying for a moratorium permit to
continue participation in the fishery while the current proposed rule
is prepared. The primary objective of the proposed rule is, therefore,
to correct the error associated with the eligibility criterion for the
for-hire moratorium permit. The proposed rule would revise, consistent
with the Council's clarification of intent, one of the eligibility
criteria for obtaining a Gulf charter vessel/headboat moratorium permit
to remove a restrictive provision requiring that a valid permit was
held on July 29, 2002. Complementary logistical adjustments, e.g.,
reopening the application process, extension of deadlines, etc., are
also included.
The qualification requirements for the initial issuance of the
moratorium permit will mandate the provision of information necessary
to establish qualification for the permit, such as information on
income, record of past participation in the fishery, and proof of the
time a vessel was under construction. Permit renewal will require that
permitted vessels participate in the standard data collection programs
implemented in the region which will require that information be
maintained on standard vessel operation information, such as trips,
passenger loads, catch success, etc. All information elements required
for these actions are standard elements essential to the successful
operation of the business and should already be collected and
maintained as standard operating practice by the business. These
requirements do not require professional skills, and, therefore, may be
deemed not to be onerous on the affected participants.
No duplicative, overlapping, or conflicting Federal rules have been
identified.
Two categories of impacted entities are presumed, those that
qualify for the for-hire permit and those that do not. Those who
qualify for permits fall under two groups; those who qualify based on
permit records and those who qualify based on the provisions for
historical captains or vessel-under-construction. Based on permit
records, an estimated 3,071 permitted for-hire vessels would qualify
for the moratorium permit, of which 1,917 would qualify for both reef
fish and coastal migratory pelagic permits, 974 would qualify for only
the coastal migratory pelagic permit, and 180 would qualify for only
the reef fish permit. In addition to these vessels, an indeterminate
number of entities would qualify for the initial issuance of the for-
hire moratorium permit under the historical captain or vessel-under-
construction criteria. In total, the two groups would constitute the
universe of qualified entities. A precise estimate of this universe
cannot be provided as, although it can be presumed that all active
permits will be maintained to allow either sale of the permit or
continued use, it cannot be determined how many entities will qualify
under the historical captain or vessel-under-construction criteria. Of
the 3,071 qualifying vessels, 2,136 vessels qualify under the status
quo moratorium program, of which 1,373 vessels qualify for both
permits, 99 vessels qualify for only the reef fish permit, and 664
vessels qualify for only the coastal migratory pelagic for-hire permit.
The proposed action would, therefore, allow the qualification of an
additional 935 vessels, of which 544 vessels would qualify for both
permits, 81 vessels would qualify for the reef fish permit, and 310
vessels would qualify for the coastal migratory pelagic permit. These
935 vessels represent approximately 30 percent of the historic fleet.
It should be noted that all 3,071 vessels, including the 935 vessels
that would additionally qualify as a result of the proposed rule, are
all historical participants in the fishery. This condition is
reflective of the Council's intent to stabilize participation at
historical levels.
Business operations in the for-hire sector consist primarily, if
not exclusively, of small business entities. For-hire vessel operations
are considered small business entities if they generate receipts not in
excess of $5.0 million per year. The average gross revenues for charter
boats operating in 1997 was $83,000 for vessels operating in Alabama,
Mississippi, Louisiana, and Texas (based on average numbers of trips
per vessel and average fee per trip) and $68,000 for vessels in
Florida, while the average gross revenues for head boats/party boats
was $328,000 from Alabama through Texas and $324,000 in Florida.
Current revenues may exceed those of 1997, but the revenue performance
of the fishery clearly qualifies the participants to fit the definition
of small business entities. Since all entities operating in the fishery
as well as the 935 new qualifiers will be affected by the proposed
rule, the criterion of a substantial number of the small business
entities being affected by the proposed rule will be met.
The determination of significant economic impact can be ascertained
by examining two criteria, disproportionality and profitability. The
disproportionality question is: Will the regulations place a
substantial number of small business entities at a significant
competitive disadvantage to large business entities? Although some
variation exists between vessel operation type (guide boat, charter
boat, and head/party boat), vessel length, and degree of participation
in the fishery (number of trips per year), all vessels are classified
as small business entities. Thus, the issue of disproportionality is
not relevant in the present case.
The profitability question is: Will the regulations significantly
reduce profit for a substantial number of small entities? Two
categories of operations will be affected by the final rule, qualifying
vessels and non-qualifying
[[Page 11797]]
vessels. Effects on qualifying vessels may accrue through the permit
fee, the reporting requirement, and the limitation on passenger
capacity expansion. While permit fees are $50 for the first permit and
$20 each for any additional permit, all vessels are currently required
to possess a permit. Thus, permit costs should not be substantially
affected, nor should they significantly affect profits. The reporting
requirement impacts time expenses rather than actual monetary outlays
and, therefore, do not directly affect profitability. However, the time
expenses are estimated at $13 for charterboat participants (5.5
interviews x 7 minutes per interview x $20 per hour) and $700 for
headboat participants (140 logbooks per headboat x 15 minutes per
logbook x $20 per hour). The effects on profits of the limitation on
passenger capacity expansion cannot be estimated because neither the
cost of purchasing an existing permit, the expected rate of expansion
(what portion of vessels might be expected to expand their passenger
capacity), or the expected average capacity expansion can be forecast.
Additionally, the 935 vessels that were previously erroneously
excluded from qualification for the moratorium permit, and that would
now be qualified under the proposed action, will be allowed to continue
their historic participation and accompanying profit performance and in
addition will experience a substantial increase in profitability over
what would occur under the status quo since they would have been
precluded from continued participation under the June 28, 2002 rule.
Effects on non-qualifying vessels would consist of the effects on
business profits of not being allowed to continue participation in the
fishery or enter the fishery without purchasing an existing permit. The
effects on profits of these vessels is unknown since neither the price
of the necessary permit nor the alternative business options (what they
might do and what the profitability profile of this option is in lieu
of participating in the for-hire fishery) for these vessels are known.
It is also not possible to estimate the number of small entities this
would affect.
The proposed rule would allow qualification for the moratorium
permit and continued operation of 935 vessels, or approximately 30
percent of the historic participants, in addition to the 2,136 vessels
qualified under the status quo moratorium program, plus an unknown
number of qualifiers under the historic captain and boat-under-
construction provisions. Continued participation by these 935 vessels
will allow the avoidance of a significant loss in performance and
profits of these small business entities and the fishery as a whole. It
is, therefore, concluded that the proposed rule would result in a
significant economic impact on a substantial number of small entities.
Ten alternatives to the initial eligibility requirements were
considered. These were: allowing all persons who held a for-hire permit
on the date of implementation of the amendment; allowing all persons
who held a for-hire permit on either September 16, 1999 or November 11,
1999; using a control date of November 18, 1998 and allowing for
continuous participation under permit, vessel replacement by current
permitted participant and issuance of new permit, purchase of permitted
vessel, or purchase of a new vessel and issuance of a new permit;
establishment and eligibility requirements for a Class 1 (fully
transferable) species endorsements; establishment and eligibility
requirements for a Class 2 (non-transferable) species endorsements;
historical captain permit/endorsement provisions (2 alternatives);
boat-under-construction provisions (2 alternatives); and allowing all
persons who held a for-hire permit on or before January 1, 2002. Since
the intent of the Council is to accommodate actual participation
existent at the time of amendment development and the perception was
strong that many active participants did not possess the required
permits, control dates more restrictive than the proposed control date
would increase the negative impacts on the fishery through the
exclusion of active participants, contrary to the intent of the
Council. More liberal control dates, however, while reducing the
potential universe of excluded vessels, would also be contrary to the
Council's intent of stabilizing participation at the level existent at
the time of amendment development. The transferability provisions could
result in contraction of the fleet, contrary to the intent of
stabilization and would increase the negative impacts on the fishery.
The alternative historical captain provisions would have increased the
burden of eligibility and increased the negative impacts. The
alternative provisions for boats under construction are more
restrictive than those of the proposed rule because they would have
made it more difficult for fishermen to qualify for a permit. This
would have increased the negative impacts on the fishery because more
permit holders would have been excluded. In summary, the proposed rule
accomplishes the Council's intent while minimizing impacts.
Copies of the IRFA and RIR are available upon request(see
ADDRESSES).
This proposed rule contains two collection-of-information
requirements subject to the Paperwork Reduction Act (PRA)--namely a
requirement to submit a charter vessel/headboat permit application and
submission of appeals of NMFS' initial denial of a charter vessel/
headboat permit -that have been approved by OMB under control number
0648-0451. The public reporting burdens for these collections of
information are estimated to average 20 minutes and 5 hours per
response, respectively, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collections of information.
Send comments regarding these burden estimates, or any other aspect of
these data collections, including suggestions for reducing the burden,
to NMFS and OMB (see ADDRESSES).
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 PRA unless that collection of information displays a currently
valid OMB control number.
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
Dated: March 6, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, 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. 622.4, the suspensions of the first sentence of
paragraph (r)(1), the first sentence of paragraph (r)(6), and paragraph
(r)(8)(v) are lifted; paragraph (r)(8)(vi) is removed; and paragraph
(r) introductory text, paragraphs (r)(1) through (r)(8) are revised to
read as follows:
[[Page 11798]]
Sec. 622.4 Permits and fees.
* * * * *
(r) Moratorium on charter vessel/headboat permits for Gulf coastal
migratory pelagic fish and Gulf reef fish. The provisions of this
paragraph (r) are applicable through the date that is three years after
the effective date of the final rule implementing the corrected
Amendments. Notwithstanding the other provisions of this paragraph (r),
the expiration dates of all charter vessel/headboat permits for Gulf
reef fish or Gulf coastal migratory pelagic fish that were not issued
under the provision of this paragraph (r) and that were valid or
renewable as of December 17, 2002, will be extended through the date
that is 150 days after the effective date of the final rule
implementing the corrected Amendments provided that a permit has not
been issued under this paragraph (r) for the applicable vessel.
(1) Applicability. Beginning 150 days after the effective date of
the final rule implementing the corrected Amendments, the only valid
charter vessel/headboat permits for Gulf coastal migratory pelagic fish
or Gulf reef fish are those that have been issued under the moratorium
criteria in this paragraph (r). No applications for additional charter
vessel/headboat permits for these fisheries will be accepted. Existing
permits may be renewed, are subject to the transferability provisions
in paragraph (r)(9), and are subject to the requirement for timely
renewal in paragraph (r)(10) of this section.
(2) Initial eligibility. Initial eligibility for a charter vessel/
headboat permit for Gulf coastal migratory pelagic fish or Gulf reef
fish is limited to the following--
(i) 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.
(ii) 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.
(iii) A historical captain, defined for the purposes of paragraph
(r) of this section as a person who provides NMFS with documentation
verifying that
(A) 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 their name; and
(B) At least 25 percent of his/her earned income was derived from
charter vessel or headboat fishing in one of the years, 1997, 1998,
1999, or 2000.
(3) Special conditions applicable to eligibility based on
historical captain status. A person whose eligibility is based on
historical captain status will be issued a letter of eligibility by the
RA. 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, with a historical captain endorsement. The
letter of eligibility is valid for the duration of the moratorium; is
valid only for a vessel of the same authorized passenger capacity as
the vessel used to document earned income in paragraph (r)(2)(iii)(B)
of this section; and is valid only for the fisheries certified on the
application under paragraph (r)(2)(iii)(A) of this section. A charter
vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf
reef fish with a historical captain endorsement is valid only on a
vessel that the historical captain operates as a captain.
(4) Determination of eligibility based on permit history. NMFS'
permit records are the sole basis for determining eligibility based on
permit or application history. An owner of a currently permitted vessel
who believes he/she meets the permit or application history criterion
based on ownership of a vessel under a different name, as may have
occurred when ownership has changed from individual to corporate or
vice versa, must document his/her continuity of ownership. An owner
will not be issued initial charter vessel/headboat permits for Gulf
coastal migratory pelagic fish or Gulf reef fish under the moratorium
in excess of the number of federally permitted charter vessels and/or
headboats that he/she owned simultaneously at some time during the
period March 29, 2000 through March 29, 2001.
(5) Application requirements and procedures--(i) General. 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 90
days after the effective date of the final rule implementing the
corrected Amendments. 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 paragraphs (r)(5)(ii), (r)(5)(iii), and (r)(5)(iv) 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.
(ii) Application based on the prior permit/application history
criterion. On or about the effective date of the final rule
implementing the corrected Amendments, the RA will mail an application
for a charter vessel/headboat permit for Gulf coastal migratory pelagic
fish and/or Gulf reef fish to each owner of a vessel who, according to
NMFS' permit records, is eligible based on the permit or application
history criterion in paragraph (r)(2)(i) of this section. Information
requested on the application is consistent with the standard
information required in paragraph (b)(3)(ii) of this section. The RA
will also mail each such owner a notice that his/her existing charter
vessel/headboat permit(s) for coastal migratory pelagic fish and/or
Gulf reef fish will expire 150 days after the effective date of the
final rule implementing the corrected Amendments and that the new
permit(s) required under this moratorium will be required as of that
date. A vessel owner who believes he/she qualifies for a charter
vessel/headboat permit for Gulf coastal migratory pelagic fish and/or
Gulf reef fish based on permit or application history, but who does not
receive an application from the RA, must request an application from
the RA and provide documentation of eligibility. The RA will mail
applications and notifications to vessel owner addresses as indicated
in NMFS' permit records.
(iii) Application based on a charter vessel/headboat under
construction prior to March 29, 2001. A person who intends to obtain a
charter vessel/headboat permit for Gulf coastal migratory pelagic fish
and/or Gulf reef fish based on the vessel-under-construction
eligibility criterion in
[[Page 11799]]
paragraph (r)(2)(ii) of this section must obtain an application from
the RA. Information requested on the application includes the standard
information required in paragraph (b)(3)(ii) of this section and the
documentation of construction and associated costs as specified in
paragraph (r)(2)(ii) of this section.
(iv) Application based on historical captain status. A person who
intends to obtain a charter vessel/headboat permit for Gulf coastal
migratory pelagic fish and/or Gulf reef fish based on historical
captain status must obtain an application from the RA. Information
requested on the application includes the standard information required
in paragraph (b)(3)(ii) of this section and documentation of the
criteria specified in paragraphs (r)(2)(iii)(A)and (B) of this section.
Such documentation includes income tax records pertinent to verifying
earned income; a copy of the applicable USCG license and/or Certificate
of Inspection; and a notarized affidavit signed by a vessel owner
certifying the period the applicant served as captain of a charter
vessel or headboat permitted for Gulf reef fish and/or coastal
migratory pelagic fish, whether the charter vessel or headboat was
permitted for Gulf reef fish or coastal migratory pelagic fish or both,
and whether the charter vessel or headboat was uninspected (i.e., 6-
pack) or had a USCG Certificate of Inspection.
(v) 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 correct the
deficiency within 20 days of the date of the RA's notification, the
application will be considered abandoned.
(6) Issuance of initial permits. If a complete application is
submitted in a timely manner and the applicable eligibility
requirements specified in paragraph (r)(2) 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 applicant not
later than 140 days after the effective date of the final rule
implementing the corrected Amendments.
(7) Notification of ineligibility. If the applicant does not meet
the applicable eligibility requirements of paragraph (r)(2) of this
section, the RA will notify the applicant, in writing, of such
determination and the reasons for it not later than 120 days after the
effective date of the final rule implementing the corrected Amendments.
(8) Appeal process. (i) An applicant may request an appeal of the
RA's determination regarding initial permit eligibility, as specified
in paragraph (r)(2) of this section, by submitting a written request
for reconsideration to the RA with copies of the appropriate records
for establishing eligibility. Such request must be postmarked or hand-
delivered within 45 days after the date of the RA's notification of
ineligibility and may include a request for an oral hearing. If an oral
hearing is granted, the RA will notify the applicant of the place and
date of the hearing and will provide the applicant a maximum of 45 days
prior to the hearing to provide information in support of the appeal.
(ii) A request for an appeal constitutes the appellant's
authorization under section 402(b)(1)(F) of the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1801 et. seq.) for
the RA to make available to the appellate officer(s) such confidential
records as are pertinent to the appeal.
(iii) The RA may independently review the appeal or may appoint one
or more appellate officers to review the appeal and make independent
recommendations to the RA. The RA will make the final determination
regarding granting or denying the appeal.
(iv) The RA and appellate officer(s) are empowered only to
deliberate whether the eligibility criteria in paragraph (r)(2) of this
section were applied correctly. Hardship or other factors will not be
considered in determining eligibility.
(v) The RA will notify the applicant of the decision regarding the
appeal within 45 days after receipt of the request for appeal or within
45 days after the conclusion of the oral hearing, if applicable. The
RA's decision will constitute the final administrative action by NMFS.
* * * * *
[FR Doc. 03-5898 Filed 3-11-03; 8:45 am]
BILLING CODE 3510-22-S