[Federal Register: December 17, 2002 (Volume 67, Number 242)]
[Rules and Regulations]
[Page 77193-77195]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17de02-14]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 021209298-2298-01; I.D. 120402C]
RIN 0648-AQ59
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; Revision of the
Charter Vessel and Headboat Permit Moratorium in the Gulf of Mexico
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Emergency rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this emergency rule to extend certain permit-
related deadlines contained in the final rule implementing the charter
vessel/headboat permit moratorium for reef fish and coastal migratory
pelagic fish in the Gulf of Mexico and to make minor logistical
adjustments consistent with those deadline extensions, e.g., extend
effectiveness of some existing permits. Moratorium permit deadlines
extended by this rule include the December 16, 2002, deadline for
having a moratorium permit aboard vessels operating in these fisheries;
and the deadline for a decision regarding appeals related to
eligibility. These actions are necessary to ensure that participants
with valid permits in these fisheries are able to continue to
participate in these fisheries pending resolution of an eligibility
criterion issue in the amendments and final rule implementing the
permit moratorium. That eligibility criterion issue will be addressed
subsequently through the normal rulemaking process that will include
additional public comment. The intended effect is to maintain
continuity in these fisheries until an issue regarding permit
eligibility under the moratorium can be resolved.
EFFECTIVE DATE: This rule is effective December 17, 2002 through June
16, 2003. Comments must be received no
[[Page 77194]]
later than 5 p.m., eastern time, January 16, 2003.
ADDRESSES: Written comments on this emergency 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 an economic analysis supporting this emergency rule may
be obtained from NMFS' Southeast Regional Office at the address above.
FOR FURTHER INFORMATION CONTACT: Phil Steele, 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 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.
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. 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, NMFS
and the Council have determined that the amendments contained an error
relating to the 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 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 regulations that
implemented the moratorium require all charter operators in the Gulf of
Mexico EEZ to have a valid ``moratorium permit,'' as opposed to the
prior open access charter permit, beginning December 26, 2002.
This emergency rule will minimize any potential adverse effects
resulting from the error in the amendments and implementing regulations
until the issue can be resolved through the normal rulemaking process.
This rule defers the date that the ``moratorium permit'' is required
until June 16, 2003. This rule also automatically extends the
expiration date of valid or renewable ``open access'' permits for these
fisheries through June 16, 2003, i.e., no additional renewal
application is required during this period. This emergency rule also
extends the deadlines for issuance of ``moratorium permits'' and for
resolution of appeals, consistent with the extension of the date the
``moratorium permit'' is required. However, those applicants who
qualified under the existing regulations will be issued ``moratorium
permits'' as soon as possible. NMFS intends to initiate the normal
rulemaking process to correct the eligibility criterion error as soon
as possible.
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.
NMFS prepared an economic evaluation of the regulatory impacts
associated with this emergency rule, which is summarized as follows.
The major effect of the emergency rule is the avoidance of severe
economic loss that would occur through the disruption of the business
operation of 935 for-hire vessel businesses. Under the current final
rule implementing a for-hire permit moratorium, 2,037 vessels would
qualify for the limited access permit and be allowed continued
operation in the Gulf of Mexico for-hire fishery. An additional 935
vessels would be disqualified for the permit and, therefore, excluded
from the fishery due to the errors in the amendments and the
implementing final rule. These vessels represent 30 percent of the
Council-intended valid participants in the fishery (3,071 vessels).
Average receipts per for-hire vessel in the Gulf of Mexico are
estimated at $64,000-$80,000 per year. Assuming a new amendment
required less than 180 days for implementation, the emergency rule
would eliminate the potential loss of $30-$37 million in receipts from
these vessels. Additionally, approximately 112,000 for-hire angler
trips would be allowed to be taken, supporting $37.5 million in angler
expenditures. Due to the avoidance of business cessation and subsequent
loss of all associated receipts, the emergency rule is determined to
have a significant positive economic impact on a substantial number of
small business entities.
Classification
The Assistant Administrator for Fisheries, NOAA (AA), has
determined that this emergency rule is necessary to minimize
significant adverse social and economic impacts, (i.e., unintended
exclusion of participation in these fisheries), that would otherwise
occur as a result of an error in Amendments 14 and 20 and their
implementing regulations. The AA has also determined that this rule is
consistent with the Magnuson-Stevens Act and other applicable laws.
The emergency rule is determined to be not significant under
Executive Order 12866. Copies of the economic evaluation are available
(see ADDRESSES).
Because there is no requirement to provide for prior notice and
opportunity for public comment on this rule the analytical requirements
of the Regulatory Flexibility Act do not apply.
This emergency rule would defer permit-related deadlines
established in the final rule implementing the charter vessel/headboat
permit moratorium in the Gulf of Mexico (67 FR 43558, June 28, 2002)
until an inconsistency in that rule's permit eligibility criteria can
be resolved through normal rulemaking procedures, i.e., proposed rule,
public comment, and final rule. Specifically, the deadlines for
issuance of a moratorium permit, for the requirement to have a
moratorium permit aboard a vessel, and for the Regional Administrator's
(RA) decision regarding appeals are deferred pending subsequent
rulemaking to resolve the eligibility criterion. This action will allow
those applicants who would have otherwise been denied initial access to
the fishery to continue participating in the fishery. Currently, the
open access permits are set to expire on December 26, 2002. For these
reasons, the AA finds good cause to waive the
[[Page 77195]]
requirement to provide prior notice and the opportunity for public
comment, pursuant to authority set forth at U.S.C. 553(b)(B), as such
procedures would be impracticable. This emergency rule relieves
restrictions by deferring deadlines for obtaining required permits and
by extending the effectiveness of certain existing permits to allow
continued participation in these fisheries. Because this is a
substantive rule that relieves a restriction, the 30-day delayed
effectiveness provision of the Administrative Procedures Act does not
apply.
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
Dated: December 10, 2002.
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 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.
Sec. 622.4 Permits and fees.
2. In Sec. 622.4:
a. In paragraph (r) introductory text, a final sentence is added to
read as follows:
* * * * *
(r) * * * 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 are valid or
renewable as of December 17, 2002, will be extended through June 16,
2003, provided that a permit has not been issued under this paragraph
(r) for the applicable vessel.
* * * * *
b. In paragraph (r)(1), the first sentence is suspended, and a new
sentence is added in its place to read as follows:
(r) * * *
(1) * * * Beginning June 16, 2003, 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).
* * * * *
c. In paragraph (r)(6), the first sentence is suspended, and a new
sentence is added in its place to read as follows:
* * * * *
(r) * * *
(6) * * * 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 June 6, 2003.
d. Paragraph (r)(8)(v) is suspended and paragraph (r)(8)(vi) is
added to read as follows:
* * * * *
(r) * * *
(8) * * *
(vi) The RA will notify the applicant of the decision regarding the
appeal by February 18, 2003, or within 30 days after the conclusion of
the oral hearing, if applicable. The RA's decision will constitute the
final administrative action by NMFS.
* * * * *
[FR Doc. 02-31699 Filed 12-16-02; 8:45 am]
BILLING CODE 3510-22-M