Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 18A, 45428-45436 [E6-12984]

Download as PDF 45428 Federal Register / Vol. 71, No. 153 / Wednesday, August 9, 2006 / Rules and Regulations diagonally across the chest without human guidance, as required by FMVSS No. 208, the FTSS and Denton chest flesh assemblies perform statistically the same. It is debatable whether or not FTSS’s dummy improves belt routing, but either way, the Agency considers this information insufficient justification for changing NHTSA’s drawing specifications. The Agency must also consider the entire dummy industry and recognizing that there are multiple dummy manufacturers that have been producing the HIII–5F for a significant period of time and continue to produce them, the agency must weigh the benefit of changing a drawing against the adverse impact the change would have on other manufacturers. In this case, revising the Agency’s drawing specifications to FTSS’s suggested dimensions appears to provide little to no benefit while the adverse impact on other manufacturers could be significant. Consequently, the agency finds no basis to revise the drawings as requested by FTSS. Conclusion For the reasons discussed above, NHTSA is denying FTSS’s petition for dimensional changes to drawing number 880105–355–E, sheets 1 and 2 of CFR Section 49, Part 572, Subpart O. Authority: 49 U.S.C. 30162; delegations of authority at 49 CFR 1.50 and 49 CFR 501.8. Issued on: August 3, 2006. Stephen R. Kratzke, Associate Administrator for Rulemaking. [FR Doc. E6–12975 Filed 8–8–06; 8:45 am] BILLING CODE 4910–59–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 622 and 635 [Docket No. 060425111–6205–02; I.D. 041906B] RIN 0648–AN09 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 18A National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. jlentini on PROD1PC65 with RULES AGENCY: SUMMARY: NMFS issues this final rule to implement Amendment 18A to the VerDate Aug<31>2005 16:38 Aug 08, 2006 Jkt 208001 Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Amendment 18A) prepared by the Gulf of Mexico Fishery Management Council (Council). This final rule prohibits vessels from retaining reef fish caught under the recreational size and bag/ possession limits when commercial quantities of Gulf reef fish are on board; adjusts the number of persons allowed on board when a vessel with both commercial and charter vessel/headboat reef fish permits and a U.S. Coast Guard (USCG) Certificate of Inspection (COI) is fishing commercially; prohibits use of Gulf reef fish, except sand perch or dwarf sand perch, as bait in any commercial or recreational fishery in the exclusive economic zone (EEZ) of the Gulf of Mexico, with a limited exception for crustacean trap fisheries; requires a NMFS-approved vessel monitoring system (VMS) on board vessels with Federal commercial permits for Gulf reef fish, including charter vessels/headboats with such commercial permits; and requires owners and operators of vessels with Federal commercial or charter vessel/ headboat permits for Gulf reef fish to comply with sea turtle and smalltooth sawfish release protocols, possess on board specific gear to ensure proper release of such species, and comply with guidelines for proper care and release of incidentally caught sawfish and sea turtles. This final rule also requires annual permit application rather than application every 2 years (biennial). In addition, Amendment 18A revises the total allowable catch (TAC) framework procedure to reflect current practices and terminology. The intended effects of this final rule are to improve enforceability and monitoring in the reef fish fishery in the Gulf of Mexico and to reduce mortality of incidentally caught sea turtles and smalltooth sawfish. Finally, NMFS informs the public of approval by the Office of Management and Budget (OMB) of the collection-of-information requirements contained in this final rule and publishes the OMB control numbers for those collections. DATES: This final rule is effective September 8, 2006, except for the amendments to §§ 622.4 (m)(1) and 622.9, which are effective December 7, 2006, and §§ 622.4(h)(1) and 635.4(m)(1), which are effective September 1, 2006. ADDRESSES: Copies of the final regulatory flexibility analysis (FRFA) may be obtained from Peter Hood, NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701; telephone 727–824–5305; fax PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 727–824–5308; email Peter.Hood@noaa.gov. Comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted in writing to Jason Rueter at the Southeast Regional Office address (above) and to David Rostker, Office of Management and Budget (OMB), by email at DavidlRostker@omb.eop.gov, or by fax to 202–395–7285. FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone 727–824–5305; fax 727–824–5308; e-mail Peter.Hood@noaa.gov. The reef fish fishery is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) that was prepared by the Council. The FMP was 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. On April 26, 2006, NMFS published a notice of availability of Amendment 18A and requested public comment (71 FR 24635). On May 18, 2006, NMFS published the proposed rule to implement Amendment 18A and requested public comment on the proposed rule (71 FR 28842). NMFS approved Amendment 18A on July 24, 2006. The rationale for the measures in Amendment 18A is provided in the amendment and in the preamble to the proposed rule and is not repeated here. SUPPLEMENTARY INFORMATION: Comments and Responses Following is a summary of comments received on Amendment 18A and the associated proposed rule along with NMFS’ responses. A total of 15 comments were received from individuals and organizations. Comment 1: Not allowing a commercial vessel to retain reef fish species caught under recreational size and bag limits when the vessel has commercial harvests of any reef fish species aboard will do little to help stocks recover. Response: The primary purpose of this management measure is to improve enforceability of the prohibition on sale of reef fish caught under recreational bag limits. Prohibiting bag limits of reef fish on commercial vessels makes it more difficult for fish caught under a bag limit from entering the market through commercial vessel landings. In addition, this measure resolves confusion that occurs when a commercial season for a species is closed while the recreational season is E:\FR\FM\09AUR1.SGM 09AUR1 jlentini on PROD1PC65 with RULES Federal Register / Vol. 71, No. 153 / Wednesday, August 9, 2006 / Rules and Regulations still open. For example, during the February 15 to March 15 commercial closed season on red grouper, black grouper, and gag, vessels with a commercial reef fish permit are prohibited from possessing the recreational bag limits of those species (unless the vessel also has a charter permit and is operating as a charter vessel). However, in other instances, commercial reef fish vessels can retain a recreational bag limit of grouper after the commercial grouper quota is met and the commercial fishery is closed. Thus, it can be difficult for a commercial fisherman to determine when a bag limit can be retained. Comment 2: To reduce confusion, rather than prohibiting commercial fishermen from retaining reef fish bag limits, allow commercial fishermen to retain one bag limit for each crew member regardless of reef fish species so long as the recreational fishery is open. Response: While the measure proposed by the commenter would reduce confusion with respect to bag limits, it would not fulfill the primary purpose of this measure, which is to improve the enforceability of the provision to prohibit the sale of reef fish caught under the recreational bag limit. It should be noted that the proposed measure does not prohibit commercial fishermen from retaining fish from their commercial catch for personal use. Under current regulations, a commercial reef fish permit allows a vessel to exceed the bag limit for managed reef fish species within certain area, season, trip, and size limits. There is no obligation to sell what is harvested. Comment 3: Not allowing a commercial vessel to retain reef fish species caught under recreational size and bag limits when the vessel has commercial harvests of any reef fish species aboard limits the ability of a commercial vessel to be profitable, while charter reef fish vessels can reduce the rate for charters if, after filling bag limits, they continue to fish using their commercial reef fish permit. Response: Current regulations do not allow a vessel having both a charter vessel/headboat reef fish permit and a commercial reef fish permit to act as a for-hire vessel and commercial vessel on the same trip. A for-hire vessel with paying customers aboard is limited to recreational harvest restrictions. Comment 4: It would be fair and reasonable to allow a maximum crew size of four persons to fish commercially on a vessel having both commercial and for-hire reef fish permits. Response: The initial regulations limiting the maximum crew size to three on vessels with both commercial and VerDate Aug<31>2005 16:38 Aug 08, 2006 Jkt 208001 for-hire permits was implemented through Amendment 1 to the Reef Fish FMP to provide consistent regulations with those of the Coastal Migratory Pelagic FMP. This initial three-person crew limit was selected because available data indicated most vessels with both permits did not typically exceed three persons when fishing commercially. In addition, NMFS and the Council were concerned that higher maximum crew sizes might encourage boats under charter to harvest excess amounts of reef fish by claiming to be fishing commercially. The purpose of limiting the maximum crew size on a dual-permitted vessel with a COI to the minimum crew size allowed under the COI when the vessel is underway for more than 12 hours is to create consistency between fishing and USCG regulations, as described above. Comment 5: Any legally landed fish should be allowed to be used for bait, including sand perch, grunts, porgies, and squirrelfish. Response: It is illegal to cut-up reef fish at sea for use as bait. However, it is not illegal to use as bait cut-up reef fish purchased on shore, or whole reef fish provided the fish complies with applicable size and bag limits. This creates enforcement difficulties at sea because the origin of a reef fish carcass used for bait could be obtained through legal means (purchased onshore) or illegal means (a fish caught on the fishing trip). Prohibiting the use of reef fish as bait resolves this enforcement problem. The measure does allow for sand perch and dwarf sand perch, traditional bait species in the reef fish management unit, to be used as bait. It also allows other reef fish species not in the management unit, such as grunts, porgies, and squirrelfish, to be used as bait, consistent with the bait definition found in 50 CFR 622.38. To assist the efficiency of the reef fish fishery, the rule will allow reef fish parts purchased on shore to be used as bait in the blue crab, stone crab, deep-water crab, and spiny lobster trap fisheries. Comment 6: VMS should only be placed on larger vessels or vessels fishing with longlines, and commercial reef fish fishermen below a certain income level should be exempt from VMS requirements. Response: The Reef Fish FMP contains several area-specific regulations where fishing is restricted or prohibited to protect habitat, protect spawning aggregations, or reduce fishing pressure. Unlike size, bag, and trip limits, where the catch can be monitored when a vessel returns to port, area restrictions require at-sea enforcement. Because of the sizes of PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 45429 these areas and the distances from shore, the effectiveness of enforcement through overflights and at-sea interception is limited. VMS allows a more effective means to monitor vessels for intrusions into restricted areas and could be an important component of a possible future electronic logbook system. The Council considered placing VMS on just commercial reef fish vessels using longlines. However, they determined requiring VMS on all commercial reef fish vessels rather than just longline vessels was preferred because most of the area restrictions in the Gulf of Mexico, with the exception of the longline/buoy gear boundary and the stressed area boundary, apply to all gear types. An exception was made for vessels fishing exclusively with fish traps. Fish traps are under a closed entry system (no new fish trap endorsements are allowed and transfers are allowed only under limited conditions) and will be prohibited as an allowable gear in the Gulf of Mexico after February 7, 2007. Because these vessels are unlikely to be able to recover the costs of installing a VMS before the phase-out is complete, and because they are fishing under an alternative trip initiation/termination reporting requirement, exempting these vessels for the short period of time until fish traps are prohibited was considered acceptable. This exemption applies only if a fish trap vessel fishes exclusively with traps and no other gear. If any other gear is used, the vessel would be required to have VMS. Comment 7: The cost of VMS is excessive and will put commercial fishermen out of business. Fishermen are already stressed from the increasing costs of fuel, early closures of the grouper fishery, and damage from storms and red tide. Response: As stated above, the Council determined, and NMFS agrees, that VMS is necessary to enforce areaspecific regulations for the commercial fishery. The Council also considered whether the cost of VMS equipment should be paid by reef fish vessel owners or by NMFS. The Council determined if NMFS were to purchase the equipment, there could be a delay in implementation of the VMS requirement until funding for the VMS units was made available from Congress or other sources. Were such funding not to become available, implementation of a VMS requirement could be delayed indefinitely. Therefore, the Council selected an alternative placing the burden of purchasing a VMS with the vessel owner. However, it should be noted that NMFS has been provided E:\FR\FM\09AUR1.SGM 09AUR1 jlentini on PROD1PC65 with RULES 45430 Federal Register / Vol. 71, No. 153 / Wednesday, August 9, 2006 / Rules and Regulations funds by Congress to purchase VMS units in other fisheries. If such monies were to become available for the reef fish fishery, costs could be defrayed for reef fish vessel owners. The cost of the installation, maintenance, and monthto-month communications would still be paid or arranged for by vessel owners as appropriate. Comment 8: Requiring VMS only on commercially permitted reef fish vessels and not on other vessels is discriminatory.Response: Commercial fishing vessels have greater fishing power than recreational fishing vessels, which are limited by bag limits. Therefore, commercial fishing vessels fishing within a restricted area are likely to do more harm to protected areas or stocks. In addition, because there are no federal permits for recreational fishermen, it is difficult to discern which recreational vessels would need to have VMS on board. Thus, recreational vessels were not considered for this measure. Comment 9: Fisherman should not have to pay for VMS if they are charter fishing or operating outside the Gulf of Mexico EEZ waters. Response: In some circumstances, a vessel owner can apply for a powerdown exemption for VMS from NMFS. These circumstances include a vessel that is continuously out of the water for more than 72 consecutive hours, or a vessel fishing with both a valid commercial and a valid for-hire reef fish permit. Under these circumstances, the owner has the ability to sign out of the VMS program for a minimum period of 1 calendar month. The vessel would not be allowed to conduct commercial fishing operations until the VMS unit is reactivated and NMFS personnel verify consistent position reports. Regarding fishing in state waters or outside the Gulf of Mexico EEZ, VMS must be active for a vessel to participate in the commercial reef fish fishery because a vessel can easily transit between jurisdictional boundaries. Comment 10: With requirements for emergency position indicating radio beacons (EPIRBs) on commercial fishing vessels, VMS will provide little additional protection for commercial reef fish fishermen. Response: As indicated above, the primary purpose of VMS is to improve the enforcement of restricted fishing areas. A secondary purpose of VMS is to improve safety at sea. Some VMS models provide an optional safety mechanism with a ‘‘panic button’’ that can be activated during a vessel emergency so that USCG assets can be directed to the vessel’s last known position. Additionally, should a vessel VerDate Aug<31>2005 16:38 Aug 08, 2006 Jkt 208001 stop sending a signal or not arrive as scheduled, its cruise track can be monitored by NMFS personnel to determine whether the vessel may need assistance. Comment 11: With the requirement for VMS, position information can be compromised and sold to the public. Response: VMS location data for vessels are confidential and will not be shared with anyone without written authorization for their release from the vessel owner, except to those responsible for federal fisheries management and/or enforcement, or when required by a court order. Individuals can request location data only for their permitted vessel(s). Computers and monitors showing vessel location data are kept in secured rooms with restricted access to authorized personnel. Comment 12: Given the cost of VMS and the rare occurrence of turtle interactions with reef fish gear, the additional cost of turtle release gear will create an untenable burden on commercial reef fish fishermen. Response: A NMFS-issued biological opinion dated February 15, 2005, determined a reasonable and prudent measure to minimize the impacts of the incidental take of sea turtles and smalltooth sawfish during reef fish fishing was to ‘‘ensure that any caught sea turtle or smalltooth sawfish is handled in such a way as to minimize stress to the animal to increase its survival.’’ One of the terms and conditions of the opinion to address this reasonable and prudent measure states that ‘‘use of the sea turtle handling and release protocols recently implemented for highly migratory species (HMS) pelagic longline vessels must be considered (50 CFR 635.21(c)(5)(i) and (ii))’’ and ‘‘at a minimum, regulations similar to those currently in place for Atlantic HMS bottom longline vessels must be implemented (50 CFR 635.21(a)(3) and 635.21(d)(3)).’’ In addition, ‘‘implementation of these requirements and guidelines must occur as soon as operationally feasible and no later than 2007.’’ NMFS worked with the Council to develop requirements appropriate for the reef fish fishery. Although the biological opinion estimates that anticipated interactions in the Gulf of Mexico fishery are much less common than in the HMS fisheries, particularly in the HMS pelagic longline fishery, the same techniques for handling and removing gear from any hooked endangered sea turtle or smalltooth sawfish are pertinent. The total cost for release gear per vessel is estimated to be between $267 and $459. Vessel sizes were taken into PO 00000 Frm 00068 Fmt 4700 Sfmt 4700 consideration, with fewer gear requirements required for vessels having a freeboard height less than 4 feet (1.23 m). For some vessels, the gear costs may be less because they already have some of the required equipment aboard. For example, life rings and life vests are already required items. Additionally, a list of NMFS-approved release gear, including descriptions of turtle release gear, can be found in the final rule implementing sea turtle bycatch and bycatch mortality mitigation measures for Atlantic pelagic longline vessels (69 FR 40734, July 6, 2004). Some of these gears can be constructed rather than purchased, allowing further savings. Comment 13: The handles on shorthandled dehookers are not long enough to release turtles from a vessel with a four foot freeboard or less, and by requiring either an internal or external dehooker, fishermen could damage sea turtles by using the wrong dehooking device to remove a hook. Response: The requirements specified for vessels with a freeboard height of less than four feet incorporate the best available scientific information, while accounting for differences between HMS commercial longline vessels (for which the release gear was developed) and reef fish vessels. Freeboard height (i.e., the working distance between the top rail of the gunwale to the water’s surface) and available deck space, if a turtle were to be boated to remove the hook, were the two main factors believed to affect the way a captured turtle might be handled and what types of measures would be practical. Exempting vessels with a lower freeboard height from the requirement of the long-handled line cutters or long-handled dehooking devices reduces some of the burden to fishermen in terms of the amount of release gear that must be on board, while still increasing the likelihood of successfully releasing sea turtles, provided that the fishermen are proficient in the selection and use of the appropriate gear. In selecting dehooking devices, internal or external dehookers are allowed because both can remove external hooks. This gives fishermen the option of selecting a dehooker that can remove external hooks, or having a dual-purpose dehooker. Allowing fishermen to use one dehooker reduces some of the burden to fishermen in terms of the amount of release gear that must be carried. Comment 14: Changing the permit renewal system from biannual to annual will create more paperwork and cost for fishermen. Response: NMFS believes requiring annual permit renewal provides better E:\FR\FM\09AUR1.SGM 09AUR1 Federal Register / Vol. 71, No. 153 / Wednesday, August 9, 2006 / Rules and Regulations jlentini on PROD1PC65 with RULES permit accountability. Fees for annual renewal would be half of the current biennial fee; therefore, there would be no increased cost to applicants. The annual renewal requirement will apply to all permits, including those for highly migratory species. The changes will also simplify the income qualification documentation requirements for fisheries having income criteria, thus reducing paperwork requirements. Classification The Regional Administrator, Southeast Region, NMFS, determined that Amendment 18A is necessary for the conservation and management of the Gulf reef fish fishery and is 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. NMFS prepared a final regulatory flexibility analysis (FRFA) for this final rule, based on the regulatory impact review (RIR), initial regulatory flexibility analysis (IRFA) and public comments. NMFS received several public comments on the proposed rule during the comment period. These comments and NMFS’ responses are included in the final rule. None of the comments are specific to the IRFA, but some relate to economic and other issues affecting small entities. An outline of these issues and NMFS’ responses are included below as part of the FRFA summary. A major economic issue raised in the comments pertains to the cost of VMS. One comment considered the VMS cost as excessive and could put commercial fishermen out of business. A second comment indicated VMS should be required only on larger vessels or vessels fishing with longlines and should not be required for commercial fishermen below a certain income level. Another comment stated that fishermen should not have to pay for VMS if they are charter fishing or operating outside the Gulf EEZ. NMFS is aware of the cost of VMS and stated in the RIR and IRFA for the proposed rule that the VMS requirement would adversely affect many small entities, particularly the smaller and marginal operations. NMFS, however, concurs with the Council when it considered the necessity of VMS on all commercial reef fish vessels, including dually permitted charter/ commercial vessels, in order to enforce area-specific regulations. There are many such areas in the Gulf where fishing is restricted or prohibited to protect habitat, protect spawning aggregations, or reduce fishing pressure. Most of these areas apply to all gear VerDate Aug<31>2005 16:38 Aug 08, 2006 Jkt 208001 types. Also, if NMFS did not require VMS on charter fishing or fishing outside the Gulf EEZ, it would complicate enforcement as vessels can easily shift from charter to commercial fishing or transit from one jurisdictional area to another. One mitigating factor on these issues is that if funds become available, as in other fisheries requiring VMS, NMFS will pay for part of the VMS cost. Another mitigating factor is the power-down exemption certain vessels may be eligible to obtain from NMFS. In particular, vessels that are continuously out of the water for more than 72 consecutive hours or dually permitted charter/commercial vessels can sign out of the VMS program for 1 calendar month. But these vessels would not be allowed to fish commercially until the VMS unit is verified to be properly functioning. Another comment stated that given the cost of VMS, the additional cost of turtle release gear will create an untenable burden on commercial reef fish fishermen. As discussed above, the cost of VMS would adversely affect many commercial reef fish vessels. The additional cost of turtle release gear (between $267 and $459 per vessel) is not as large, but nevertheless, would impinge on the profitability of vessels, as discussed in the RIR and IRFA. NMFS worked with the Council to develop requirements appropriate for the reef fish fishery. It should be noted, though, that less gear is required for vessels having a freeboard height of less than 4 feet (1.23 m). In addition, some vessels are already equipped with some of the required gear, such as life rings and life vests, so the additional cost to them would be less than estimated in the RIR and IRFA. One other comment contended the change in permit renewal from biannual to annual will create more paperwork and cost for fishermen. To an extent, the change from biannual to annual permit renewal would increase paperwork, but not the permit renewal fee since the annual fee is just half of the biannual fee currently charged by NMFS. One should note that accompanying the annual permit requirement is the simplification of income documentation for renewing permits subject to certain qualifying income criteria. These and other comments have not resulted in changes to final rule, so the economic analysis conducted for the final rule has also not changed. The following completes the FRFA. The Magnuson-Stevens Act provides the statutory basis for the final rule. The final rule will: (1) Continue allowing vessels to possess both commercial and for-hire vessel (charter vessel/headboat) PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 45431 permits, but disallow retention of reef fish species caught under recreational size and possession limits when the vessel has commercial harvests of any reef fish species aboard; (2) allow a forhire vessel with a U.S. Coast Guard (USCG) Certificate of Inspection (COI) to increase its crew size but not in excess of its minimum manning requirements outlined in its COI when fishing for reef fish under its commercial fishing license; (3) prohibit the use as bait any species in the reef fish management unit or parts thereof, with certain exceptions; (4) require the use of VMS systems Gulfwide for all gear types of commercially permitted reef fish vessels, including charter vessels with commercial reef fish permits; (5) modify the TAC framework procedure to incorporate the Southeast Data, Assessment and Review (SEDAR) process; and (6) require vessels with commercial and/or for-hire reef fish permits to comply with sea turtle and smalltooth sawfish release protocols, possess a set of release gear required by the NMFS Office of Protected Resources, and adopt specific guidelines for the proper care of incidentally caught sawfish. The main objectives of the final rule are to resolve certain issues related to monitoring and enforcement of existing regulations, update the framework procedure for setting TAC to reflect current terminology and stock assessment procedures, and reduce bycatch mortality of incidentally caught endangered sea turtles and smalltooth sawfish. The final rule would impact three types of businesses in the Gulf reef fish fishery, namely, commercial fishing vessels, recreational for-hire vessels, and fish dealers. At present, the commercial reef fish permits are under a license limitation program and for-hire reef fish permits are under a moratorium, which is proposed to be converted into a license limitation under a separate amendment. Hence, no new commercial or for-hire reef fish permits will be issued when Amendment 18A is implemented. Currently, there are 1,145 commercial and 1,574 for-hire active vessel permits for the Gulf reef fish fishery. Of these permittees, 237 vessels have both commercial and for-hire vessel permits. Reef fish dealers in the Gulf are required to obtain permits to handle reef fish caught in the Gulf. There are currently 227 dealers permitted to buy and sell reef fish caught in the Gulf. The final rule is expected to affect these commercial vessels, for-hire vessels, and fish dealers. Average annual gross receipts of commercial reef fish vessels in the Gulf E:\FR\FM\09AUR1.SGM 09AUR1 jlentini on PROD1PC65 with RULES 45432 Federal Register / Vol. 71, No. 153 / Wednesday, August 9, 2006 / Rules and Regulations range from $24,095 for low-volume vertical line vessels to $116,989 for high-volume longline vessels. The corresponding annual net incomes range from $4,479 for low-volume vertical line vessels to $28,466 for high-volume vertical line vessels. Permit records indicate that the maximum number of commercial reef fish permits owned by any single entity is six, so at the maximum this entity would generate a total of $701,934 in gross receipts. For the for-hire vessels, gross annual receipts range from $76,960 for charter vessels to $404,172 for headboats. The corresponding annual operating profits range from $36,758 for charter vessels to $338,209 for headboats. Permit records indicate a maximum of 12 permits held by any single entity. At a maximum, this entity would generate a total of $4,850,064 in gross receipts. 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 $4.0 million in the case of commercial harvesting entities or $6.5 million in the case of for-hire entities. Relative to these thresholds, both the commercial vessel and for-hire vessel entities affected by the final rule may be considered small entities. Employment (both part and full time) by all reef fish processors in the Southeast totaled 700 individuals. There is no information regarding employment by fish dealers, although it is safe to assume that dealers employ fewer individuals than processors. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons on a fulltime, part-time, temporary, or other basis. A fish dealer is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 100 or fewer persons on a full-time, part-time, temporary, or other basis. Given the employment information, it is very unlikely for any processor that holds a reef fish dealer permit to employ 500 or more persons. Although there are no actual data on employment by fish dealers, between 1997 and 2000, on average, in excess of 100 reef fish dealers operated in the Gulf. It is assumed that all processors must be dealers, yet a dealer need not be a processor. Total dealer employment, therefore, is expected to be slightly more than 700 individuals. Given the number of reef fish dealers and estimates of dealer employment, it is unlikely that any dealer employs more than 100 VerDate Aug<31>2005 16:38 Aug 08, 2006 Jkt 208001 persons. Therefore, each dealer may be considered a small entity. Allowing vessels to be dually permitted (commercial and for-hire) would enable some 227 vessels to continue their usual operations. Disallowing these vessels to possess recreationally caught fish when commercial quantities of reef fish are aboard would improve enforcement without significantly impacting the operations of these dually permitted vessels. Allowing a for-hire vessel to increase its crew size, however, not in excess of its minimum manning requirements outlined in its COI, affords flexibility in operation and helps to ensure safety at sea of the crew, particularly for vessels using spearfish gear. This would also eliminate the discrepancy between current fishing rules and USCG requirements with respect to crew size of for-hire vessels. The prohibition on the use of reef fish, except sand perch and dwarf sand perch, as bait reinforces the current ban on cutting up reef fish at sea and regulations on bait. The economic impact of this provision on commercial and for-hire vessels cannot be quantified but is expected to be relatively small. The VMS requirement is expected to improve the efficacy of enforcement efforts and the effectiveness and timeliness of at-sea rescue efforts. All commercial reef fish vessels, including for-hire vessels with commercial permits, would incur one-time and recurring costs. First-year compliance costs range from $2,032 to $3,651 per vessel. These costs could be substantial, particularly relative to the profits of small-time vessel operations. The changes to the framework procedures are administrative in nature and are not expected to have substantial effects on fishing operations of reef fish vessels. The various requirements addressing the bycatch issue relative to sea turtles and smalltooth sawfish would affect all commercial and for-hire vessels in the reef fish fishery. Out-of-pocket expenses are estimated to be between $267 and $459 per vessel. These are mainly costs for equipping vessels with the required gear. Because some of the gear would last for some time, costs would in effect be spread over a number of years. The final rule would alter some of the reporting, record-keeping, and other compliance requirements in the reef fish fishery. In particular, the VMS requirement would affect all vessels with commercial and/or for-hire reef fish permits. Including installation by a qualified marine electrician, equipment costs range from $1,600 to $2,900 per vessel. In addition, yearly communication costs range from $432 to PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 $751 per vessel. Compliance with sea turtle and smalltooth sawfish release protocols would also affect all vessels with commercial and/or for-hire reef fish permits. Costs range from $267 to $459 per vessel. In addition, changing the permit renewal from biannual to annual would create additional paperwork from filling and submitting applications but would simplify the documentation of income requirement for permits that have income qualifying criteria. Other than the provision on vessel manning requirements that removes the conflict between NMFS and USCG regulations, no other Federal rules have been uncovered that would duplicate, overlap, or conflict with the final rule. The final rule is expected to affect a substantial number of small entities. A total of 908 solely permitted commercial vessels, 1,337 solely permitted for-hire vessels, and 237 dually permitted commercial/for-hire vessels would be affected. Because all entities affected by the final rule are small entities, the issue of disproportional effects on small versus large entities does not arise. Mainly because of the VMS requirement, for which compliance costs range from $1,600 to $2,900 per vessel, and the sea turtle and smalltooth sawfish release protocols, for which compliance costs range from $267 to $459 per vessel, the final rule would have substantial adverse impacts on the profitability of affected vessels, particularly the smaller and marginal operations. This amendment considered several alternatives to the final rule. Regarding dually permitted vessels (vessels with both commercial and for-hire permits), two other alternatives have been considered. Alternative 1 (status quo) continues to allow vessels to be dually permitted, but it does not resolve the problem of identifying whether caught fish are saleable (commercial trip) or not saleable (charter trip). Alternative 3, which disallows a vessel to be dually permitted, would adversely affect the fishing operations of dually permitted vessels by forcing them to divest of either the commercial or for-hire permit. Regarding crew size of for-hire vessels fishing under their commercial permits, four other alternatives have been considered. Alternative 1 (status quo), which limits for-hire vessel crew size to three persons, would not be compatible with minimum USCG manning requirements. Alternative 3, which is similar to the final rule except for spearfishing vessels, would benefit the spearfishing vessels. However, the crew size for these vessels would be incompatible with USCG manning E:\FR\FM\09AUR1.SGM 09AUR1 jlentini on PROD1PC65 with RULES Federal Register / Vol. 71, No. 153 / Wednesday, August 9, 2006 / Rules and Regulations requirements. Alternative 4, which allows a maximum crew size of four persons, would also be incompatible with Coast Guard manning requirements. Alternative 5, which removes the maximum crew size requirements for dually permitted vessels, creates the same enforcement problem as the status quo and at the same time affords a potential increase in fishing effort. Regarding use of reef fish as bait, two other alternatives (with various sub-alternatives) have been considered. Alternative 1 (status quo), which allows the use of whole reef fish that meet the specified requirements for bait or cut-up reef fish purchased at shore for bait, complicates the enforcement of the ban on cutting up reef fish at sea as well as potentially increases the mortality of certain reef fish species. Alternative 3, which requires enforcement officials to identify reef fish species used as bait before assessing any potential violation, could potentially complicate enforcement. On the VMS requirement, two other alternatives have been considered. Alternative 1 (status quo), which does not require VMS, is the least costly to small entities but does not address vital enforcement and at-sea rescue issues. Similar to the final rule, Alternative 3 requires VMS; however, this alternative would only require vessel owners to pay for yearly communication costs. If government resources are available, this alternative would be more favorable to the industry than the final rule. Regarding changes to the framework procedure, the only other alternative is the no action alternative, which could potentially create some confusion in the way a TAC is established by the Council. Regarding sea turtle and smalltooth sawfish bycatch, five other alternatives have been considered. Alternative 1 (status quo) is the least costly of all alternatives to small entities, but it would not address the bycatch of sea turtles and smalltooth sawfish in commercial and for-hire reef fish vessels. Alternative 2, which requires commercial vessels to abide by the release protocols in effect in the HMS longline fishery, would impose a compliance cost ranging from $202 to $380. Alternative 3, which requires the commercial reef fish fleet to comply with the more stringent requirement in place in the HMS pelagic longline fishery, would carry a compliance cost of $712 to $1,282 per vessel. Alternative 4 requires for-hire reef fish vessels to comply with either the less stringent release protocol as in Alternative 2 or the more stringent release protocol as in Alternative 3. The VerDate Aug<31>2005 16:38 Aug 08, 2006 Jkt 208001 corresponding compliance costs per vessel would be similar to those in Alternative 2 or 3. Alternative 5, which requires commercial and for-hire reef fish vessels to comply with the sea turtle release protocols in place for the Atlantic HMS bottom longline vessels, would impose a compliance cost of $202 to $380 per vessel. Copies of the FRFA are available from NMFS (see ADDRESSES). Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as ‘‘small entity compliance guides.’’ As part of the rulemaking process, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. The fishery bulletin will be sent to all vessel permit holders for the Gulf reef fish fishery. This final rule contains collection-ofinformation requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by OMB under control number 0648–0544. Following are estimated average public reporting burdens, per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collections of information: (1) VMS installation—4 hours; (2) completion and submission of certification of VMS installation and activation—15 minutes; (3) transmission of position reports—24 seconds; (4) fishing activity reports—1 minute; (5) annual maintenance of VMS—2 hours; (6) submission of requests for power down exemptions—10 minutes; and (7) annual renewal of all permits—15 minutes. Send comments regarding these burden estimates or any other aspect of the collection-of-information requirements, including suggestions for reducing burden hours, to NMFS (see ADDRESSES) and by email to DavidlRostker@omb.eop.gov, or fax to 202–395–7285. Notwithstanding any other provision of the 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. PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 45433 List of Subjects 50 CFR Part 622 Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands. 50 CFR Part 635 Endangered and threatened species, Fisheries, Fishing, Fishing vessels, Foreign relations, Intergovernmental relations, Penalties, Statistics, Treaties. Dated: August 3, 2006. William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR parts 622 and 635 are amended as follows: I PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: I Authority: 16 U.S.C. 1801 et seq. 2. In § 622.2, the definitions of ‘‘Charter vessel’’ and ‘‘Headboat’’ are revised in alphabetical order to read as follows: I § 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 § 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. However, 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 E:\FR\FM\09AUR1.SGM 09AUR1 45434 Federal Register / Vol. 71, No. 153 / Wednesday, August 9, 2006 / Rules and Regulations vessels that are underway for more than 12 hours. * * * * * Headboat means a vessel that holds a valid Certificate of Inspection (COI) issued by the USCG to carry more than six passengers for hire. (1) A headboat with a commercial vessel permit, as required under § 622.4(a)(2), is considered to be operating as a headboat when it carries a passenger who pays a fee or— (i) In the case of persons aboard fishing for or possessing South Atlantic snapper-grouper, when there are more persons aboard than the number of crew specified in the vessel’s COI; or (ii) In the case of persons aboard fishing for or possessing coastal migratory pelagic fish, when there are more than three persons aboard, including operator and crew. (2) However a vessel that has a headboat permit for Gulf reef fish, a commercial vessel permit for Gulf reef fish, and a valid COI issued by the USCG to carry passengers for hire will not be considered to be operating as a headboat provided— (i) It is not carrying a passenger who pays a fee; and (ii) 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. * * * * * I 3. In § 622.4, paragraph (h)(1) is revised, and a sentence is added at the end of paragraph (m)(1) to read as follows: § 622.4 Permits and fees. jlentini on PROD1PC65 with RULES * * * * * (h) * * * (1) Vessel permits, licenses, and endorsements and dealer permits. A vessel owner or dealer who has been issued a permit, license, or endorsement under this section must renew such permit, license, or endorsement on an annual basis. The RA will mail a vessel owner or dealer whose permit, license, or endorsement is expiring an application for renewal approximately 2 months prior to the expiration date. A vessel owner or dealer who does not receive a renewal application from the RA by 45 days prior to the expiration VerDate Aug<31>2005 16:38 Aug 08, 2006 Jkt 208001 date of the permit, license, or endorsement must contact the RA and request a renewal application. The applicant must submit a completed renewal application form and all required supporting documents to the RA prior to the applicable deadline for renewal of the permit, license, or endorsement and at least 30 days prior to the date on which the applicant desires to have the permit made effective. If the RA receives an incomplete application, the RA will notify the applicant of the deficiency. If the applicant fails to correct the deficiency within 30 days of the date of the RA’s letter of notification, the application will be considered abandoned. A permit, license, or endorsement that is not renewed within the applicable deadline will not be reissued. * * * * * (m) * * * (1) * * * An application for renewal or transfer of a commercial vessel permit for Gulf reef fish will not be considered complete until proof of purchase, installation, activation, and operational status of an approved VMS for the vessel receiving the permit has been verified by NMFS VMS personnel. * * * * * I 4. In § 622.7, paragraph (ff) is added to read as follows: § 622.7 Prohibitions. * * * * * (ff) Fail to comply with the protected species conservation measures as specified in § 622.10. I 5. Section 622.9 is revised to read as follows: § 622.9 Vessel monitoring systems (VMSs). (a) Requirements for use of a VMS— (1) South Atlantic rock shrimp. An owner or operator of a vessel that has been issued a limited access endorsement for South Atlantic rock shrimp must ensure that such vessel has an operating VMS approved by NMFS for use in the South Atlantic rock shrimp fishery on board when on a trip in the South Atlantic. An operating VMS includes an operating mobile transmitting unit on the vessel and a functioning communication link between the unit and NMFS as provided by a NMFS-approved communication service provider. (2) Gulf reef fish. An owner or operator of a vessel that has been issued a commercial vessel permit for Gulf reef fish, including a charter vessel/headboat issued such a permit even when under charter, must ensure that such vessel PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 has an operating VMS approved by NMFS for use in the Gulf reef fish fishery on board at all times whether or not the vessel is underway, unless exempted by NMFS under the power down exemption of the NOAA Enforcement Draft Vessel Monitoring System Requirements as included in Appendix E to Final Amendment 18A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. The NOAA Enforcement Draft Vessel Monitoring System Requirements document is available from NMFS, Office of Enforcement, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701; phone: 800–758– 4833. An operating VMS includes an operating mobile transmitting unit on the vessel and a functioning communication link between the unit and NMFS as provided by a NMFSapproved communication service provider. Unless exempted under the power down exemption, a VMS must transmit a signal indicating the vessel’s accurate position at least once an hour, 24 hours a day every day. Prior to departure for each trip, a vessel owner or operator must report to NMFS any fishery the vessel will participate in on that trip and the specific type(s) of fishing gear, using NMFS-defined gear codes, that will be on board the vessel. This information may be reported to NMFS using the toll-free number, 888– 219–9228, or via an attached VMS terminal. The VMS requirements of this paragraph apply throughout the Gulf of Mexico. An owner or operator of a vessel that has been issued a commercial vessel permit for Gulf reef fish with a fish trap endorsement and that fishes exclusively with fish traps is exempt from the VMS requirements of this paragraph through February 7, 2007. (b) Installation and activation of a VMS. Only a VMS that has been approved by NMFS for the applicable fishery may be used, and the VMS must be installed by a qualified marine electrician. When installing and activating the NMFS-approved VMS, or when reinstalling and reactivating such VMS, the vessel owner or operator must— (1) Follow procedures indicated on a NMFS-approved installation and activation checklist for the applicable fishery, which is available from NMFS, Office of Enforcement, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701; phone: 800–758– 4833; and (2) Submit to NMFS, Office of Enforcement, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, a statement certifying compliance with E:\FR\FM\09AUR1.SGM 09AUR1 Federal Register / Vol. 71, No. 153 / Wednesday, August 9, 2006 / Rules and Regulations the checklist, as prescribed on the checklist. (3) Submit to NMFS, Office of Enforcement, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, a vendor-completed installation certification checklist, which is available from NMFS, Office of Enforcement, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701; phone: 800–758–4833. (c) Interference with the VMS. No person may interfere with, tamper with, alter, damage, disable, or impede the operation of the VMS, or attempt any of the same. (d) Interruption of operation of the VMS. When a vessel’s VMS is not operating properly, the owner or operator must immediately contact NMFS, Office of Enforcement, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, phone: 800–758– 4833, and follow instructions from that office. If notified by NMFS that a vessel’s VMS is not operating properly, the owner and operator must follow instructions from that office. In either event, such instructions may include, but are not limited to, manually communicating to a location designated by NMFS the vessel’s positions or returning to port until the VMS is operable. (e) Access to position data. As a condition of authorized fishing for or possession of fish in a fishery subject to VMS requirements in this section, a vessel owner or operator subject to the requirements for a VMS in this section must allow NMFS, the USCG, and their authorized officers and designees access to the vessel’s position data obtained from the VMS. I 6. In subpart A, § 622.10 is added to read as follows: jlentini on PROD1PC65 with RULES § 622.10 Conservation measures for protected resources. (a) Atlantic dolphin and wahoo pelagic longliners. The owner or operator of a vessel for which a commercial permit for Atlantic dolphin and wahoo has been issued, as required under § 622.4(a)(2)(xii), and that has on board a pelagic longline must post inside the wheelhouse the sea turtle handling and release guidelines provided by NMFS. Such owner or operator must also comply with the sea turtle bycatch mitigation measures, including gear requirements and sea turtle handling requirements, as specified in § 635.21(c)(5)(i) and (ii) of this chapter, respectively. For the purpose of this paragraph, a vessel is considered to have pelagic longline gear on board when a power-operated longline hauler, a mainline, floats VerDate Aug<31>2005 16:38 Aug 08, 2006 Jkt 208001 capable of supporting the mainline, and leaders (gangions) with hooks are on board. Removal of any one of these elements constitutes removal of pelagic longline gear. (b) Gulf reef fish commercial vessels and charter vessels/headboats—(1) Sea turtle conservation measures. The owner or operator of a vessel for which a commercial vessel permit for Gulf reef fish or a charter vessel/headboat permit for Gulf reef fish has been issued, as required under §§ 622.4(a)(2)(v) and 622.4(a)(1)(i), respectively, must post inside the wheelhouse, or within a waterproof case if no wheelhouse, a copy of the document provided by NMFS titled, ‘‘Careful Release Protocols for Sea Turtle Release With Minimal Injury,’’ and must post inside the wheelhouse, or in an easily viewable area if no wheelhouse, the sea turtle handling and release guidelines provided by NMFS. Those permitted vessels with a freeboard height of 4 ft (1.2 m) or less must have on board a dipnet, short-handled dehooker, longnose or needle-nose pliers, bolt cutters, monofilament line cutters, and at least two types of mouth openers/mouth gags. This equipment must meet the specifications described in 50 CFR 635.21(c)(5)(i)(E) through (L) with the following modifications: the dipnet handle can be of variable length, only one NMFS approved short-handled dehooker is required (i.e., CFR 635.21(c)(5)(i)(G) or (H)); and life rings, seat cushions, life jackets, and life vests may be used as alternatives to tires for cushioned surfaces as specified in 50 CFR 635.21(c)(5)(i)(F). Those permitted vessels with a freeboard height of greater than 4 ft (1.2 m) must have on board a dipnet, long-handled line clipper, a short-handled and a longhandled dehooker, long-nose or needlenose pliers, bolt cutters, monofilament line cutters, and at least two types of mouth openers/mouth gags. This equipment must meet the specifications described in 50 CFR 635.21(c)(5)(i)(A) through (L) with the following modifications: only one NMFS approved long-handled dehooker (50 CFR 635.21(c)(5)(i)(B) or (C)) and one NMFS-approved short-handled dehooker (50 CFR 635.21(c)(5)(i)(G) or (H)) are required; and life rings, seat cushions, life jackets, and life vests may be used as alternatives to tires for cushioned surfaces as specified in 50 CFR 635.21(c)(5)(i)(F). (2) Smalltooth sawfish conservation measures. The owner or operator of a vessel for which a commercial vessel permit for Gulf reef fish or a charter vessel/headboat permit for Gulf reef fish has been issued, as required under PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 45435 §§ 622.4(a)(2)(v) and 622.4(a)(1)(i), respectively, that incidentally catches a smalltooth sawfish must— (i) Keep the sawfish in the water at all times; (ii) If it can be done safely, untangle the line if it is wrapped around the saw; (iii) Cut the line as close to the hook as possible; and (iv) Not handle the animal or attempt to remove any hooks on the saw, except for with a long-handled dehooker. I 7. In § 622.31, paragraph (n) is added to read as follows: § 622.31 Prohibited gear and methods. * * * * * (n) Gulf reef fish other than sand perch or dwarf sand perch may not be used as bait in any fishery, except that, when purchased from a fish processor, the filleted carcasses and offal of Gulf reef fish may be used as bait in trap fisheries for blue crab, stone crab, deepwater crab, and spiny lobster. I 8. In § 622.34, a sentence is added at the end of paragraph (l) to read as follows: § 622.34 Gulf EEZ seasonal and/or area closures. * * * * * (l) * * * Also note that if commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/ possession limits, are on board the vessel, no bag limit of Gulf reef fish may be possessed, as specified in § 622.39(a)(5). * * * * * I 9. In § 622.36, a sentence is added at the end of paragraph (a) to read as follows: § 622.36 Seasonal harvest limitations. (a) * * * Also note that if commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/ possession limits, are on board the vessel, no bag limit of Gulf reef fish may be possessed, as specified in § 622.39(a)(5). * * * * * I 10. In § 622.37, paragraph (d)(4) is added to read as follows: § 622.37 Size limits. * * * * * (d) * * * (4) A person aboard a vessel that has a Federal commercial vessel permit for Gulf reef fish and commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession limits, may not possess any Gulf reef fish that do not comply with the applicable commercial minimum size limit. * * * * * E:\FR\FM\09AUR1.SGM 09AUR1 45436 Federal Register / Vol. 71, No. 153 / Wednesday, August 9, 2006 / Rules and Regulations 11. In § 622.38, a sentence is added at the end of paragraph (d)(1) introductory text to read as follows: limits, may not possess Gulf reef fish caught under a bag limit. * * * * * § 622.38 § 622.41 I Landing fish intact. * * * * * (d) * * * (1) * * * See § 622.31(m) regarding a prohibition on the use of Gulf reef fish as bait. * * * * * I 12. In § 622.39, paragraph (a)(2)(iii) is revised, and paragraph (a)(5) is added to read as follows: § 622.39 Bag and possession limits. jlentini on PROD1PC65 with RULES (a) * * * (2) * * * (iii) For a species/species group when its quota has been reached and closure has been effected, provided that no commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession limits, are on board as specified in paragraph (a)(5) of this section. * * * * * (5) A person aboard a vessel that has a Federal commercial vessel permit for Gulf reef fish and commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession VerDate Aug<31>2005 16:38 Aug 08, 2006 Jkt 208001 [Amended] 13. In § 622.41, paragraph (l)(2) is removed and reserved. I 14. In § 622.43, paragraph (a)(1)(i) is revised to read as follows: I § 622.43 Closures. (a) * * * (1) * * * (i) Commercial quotas. The application of bag limits described in this paragraph (a)(1)(i) notwithstanding, bag limits of Gulf reef fish may not be possessed on board a vessel with commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession limits, on board, as specified in § 622.39(a)(5). (A) If the recreational fishery for the indicated species is open, the bag and possession limits specified in § 622.39(b) apply to all harvest or possession in or from the Gulf EEZ of the indicated species, and the sale or purchase of the indicated species taken from the Gulf EEZ is prohibited. In addition, the bag and possession limits for red snapper, when applicable, apply on board a vessel for which a PO 00000 Frm 00074 Fmt 4700 Sfmt 4700 commercial permit for Gulf reef fish has been issued, as required under § 622.4(a)(2)(v), without regard to where such red snapper were harvested. (B) If the recreational fishery for the indicated species is closed, all harvest or possession in or from the Gulf EEZ of the indicated species is prohibited. * * * * * PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES 15. The authority citation for part 635 continues to read as follows: I Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq. 16. In § 635.4, the second sentence of paragraph (m)(1) is revised to read as follows: I § 635.4 Permits and fees. * * * * * (m) * * * (1) * * * A renewal application must be submitted to NMFS, at an address designated by NMFS, at least 30 days before a permit’s expiration to avoid a lapse of permitted status. * * * * * * * * [FR Doc. E6–12984 Filed 8–8–06; 8:45 am] BILLING CODE 3510–22–S E:\FR\FM\09AUR1.SGM 09AUR1

Agencies

[Federal Register Volume 71, Number 153 (Wednesday, August 9, 2006)]
[Rules and Regulations]
[Pages 45428-45436]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-12984]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 622 and 635

[Docket No. 060425111-6205-02; I.D. 041906B]
RIN 0648-AN09


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Amendment 18A

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement Amendment 18A to the 
Fishery Management Plan for the Reef Fish Resources of the Gulf of 
Mexico (Amendment 18A) prepared by the Gulf of Mexico Fishery 
Management Council (Council). This final rule prohibits vessels from 
retaining reef fish caught under the recreational size and bag/
possession limits when commercial quantities of Gulf reef fish are on 
board; adjusts the number of persons allowed on board when a vessel 
with both commercial and charter vessel/headboat reef fish permits and 
a U.S. Coast Guard (USCG) Certificate of Inspection (COI) is fishing 
commercially; prohibits use of Gulf reef fish, except sand perch or 
dwarf sand perch, as bait in any commercial or recreational fishery in 
the exclusive economic zone (EEZ) of the Gulf of Mexico, with a limited 
exception for crustacean trap fisheries; requires a NMFS-approved 
vessel monitoring system (VMS) on board vessels with Federal commercial 
permits for Gulf reef fish, including charter vessels/headboats with 
such commercial permits; and requires owners and operators of vessels 
with Federal commercial or charter vessel/headboat permits for Gulf 
reef fish to comply with sea turtle and smalltooth sawfish release 
protocols, possess on board specific gear to ensure proper release of 
such species, and comply with guidelines for proper care and release of 
incidentally caught sawfish and sea turtles. This final rule also 
requires annual permit application rather than application every 2 
years (biennial). In addition, Amendment 18A revises the total 
allowable catch (TAC) framework procedure to reflect current practices 
and terminology. The intended effects of this final rule are to improve 
enforceability and monitoring in the reef fish fishery in the Gulf of 
Mexico and to reduce mortality of incidentally caught sea turtles and 
smalltooth sawfish. Finally, NMFS informs the public of approval by the 
Office of Management and Budget (OMB) of the collection-of-information 
requirements contained in this final rule and publishes the OMB control 
numbers for those collections.

DATES: This final rule is effective September 8, 2006, except for the 
amendments to Sec. Sec.  622.4 (m)(1) and 622.9, which are effective 
December 7, 2006, and Sec. Sec.  622.4(h)(1) and 635.4(m)(1), which are 
effective September 1, 2006.

ADDRESSES: Copies of the final regulatory flexibility analysis (FRFA) 
may be obtained from Peter Hood, NMFS, Southeast Regional Office, 263 
13\th\ Avenue South, St. Petersburg, FL 33701; telephone 727-824-5305; 
fax 727-824-5308; email Peter.Hood@noaa.gov.
    Comments regarding the burden-hour estimates or other aspects of 
the collection-of-information requirements contained in this final rule 
may be submitted in writing to Jason Rueter at the Southeast Regional 
Office address (above) and to David Rostker, Office of Management and 
Budget (OMB), by e-mail at David--Rostker@omb.eop.gov, or by fax to 
202-395-7285.

FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone 727-824-5305; 
fax 727-824-5308; e-mail Peter.Hood@noaa.gov.

SUPPLEMENTARY INFORMATION: The reef fish fishery is managed under the 
Fishery Management Plan for the Reef Fish Resources of the Gulf of 
Mexico (FMP) that was prepared by the Council. The FMP was 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.
    On April 26, 2006, NMFS published a notice of availability of 
Amendment 18A and requested public comment (71 FR 24635). On May 18, 
2006, NMFS published the proposed rule to implement Amendment 18A and 
requested public comment on the proposed rule (71 FR 28842). NMFS 
approved Amendment 18A on July 24, 2006. The rationale for the measures 
in Amendment 18A is provided in the amendment and in the preamble to 
the proposed rule and is not repeated here.

Comments and Responses

    Following is a summary of comments received on Amendment 18A and 
the associated proposed rule along with NMFS' responses. A total of 15 
comments were received from individuals and organizations.
    Comment 1: Not allowing a commercial vessel to retain reef fish 
species caught under recreational size and bag limits when the vessel 
has commercial harvests of any reef fish species aboard will do little 
to help stocks recover.
    Response: The primary purpose of this management measure is to 
improve enforceability of the prohibition on sale of reef fish caught 
under recreational bag limits. Prohibiting bag limits of reef fish on 
commercial vessels makes it more difficult for fish caught under a bag 
limit from entering the market through commercial vessel landings. In 
addition, this measure resolves confusion that occurs when a commercial 
season for a species is closed while the recreational season is

[[Page 45429]]

still open. For example, during the February 15 to March 15 commercial 
closed season on red grouper, black grouper, and gag, vessels with a 
commercial reef fish permit are prohibited from possessing the 
recreational bag limits of those species (unless the vessel also has a 
charter permit and is operating as a charter vessel). However, in other 
instances, commercial reef fish vessels can retain a recreational bag 
limit of grouper after the commercial grouper quota is met and the 
commercial fishery is closed. Thus, it can be difficult for a 
commercial fisherman to determine when a bag limit can be retained.
    Comment 2: To reduce confusion, rather than prohibiting commercial 
fishermen from retaining reef fish bag limits, allow commercial 
fishermen to retain one bag limit for each crew member regardless of 
reef fish species so long as the recreational fishery is open.
    Response: While the measure proposed by the commenter would reduce 
confusion with respect to bag limits, it would not fulfill the primary 
purpose of this measure, which is to improve the enforceability of the 
provision to prohibit the sale of reef fish caught under the 
recreational bag limit. It should be noted that the proposed measure 
does not prohibit commercial fishermen from retaining fish from their 
commercial catch for personal use. Under current regulations, a 
commercial reef fish permit allows a vessel to exceed the bag limit for 
managed reef fish species within certain area, season, trip, and size 
limits. There is no obligation to sell what is harvested.
    Comment 3: Not allowing a commercial vessel to retain reef fish 
species caught under recreational size and bag limits when the vessel 
has commercial harvests of any reef fish species aboard limits the 
ability of a commercial vessel to be profitable, while charter reef 
fish vessels can reduce the rate for charters if, after filling bag 
limits, they continue to fish using their commercial reef fish permit.
    Response: Current regulations do not allow a vessel having both a 
charter vessel/headboat reef fish permit and a commercial reef fish 
permit to act as a for-hire vessel and commercial vessel on the same 
trip. A for-hire vessel with paying customers aboard is limited to 
recreational harvest restrictions.
    Comment 4: It would be fair and reasonable to allow a maximum crew 
size of four persons to fish commercially on a vessel having both 
commercial and for-hire reef fish permits.
    Response: The initial regulations limiting the maximum crew size to 
three on vessels with both commercial and for-hire permits was 
implemented through Amendment 1 to the Reef Fish FMP to provide 
consistent regulations with those of the Coastal Migratory Pelagic FMP. 
This initial three-person crew limit was selected because available 
data indicated most vessels with both permits did not typically exceed 
three persons when fishing commercially. In addition, NMFS and the 
Council were concerned that higher maximum crew sizes might encourage 
boats under charter to harvest excess amounts of reef fish by claiming 
to be fishing commercially. The purpose of limiting the maximum crew 
size on a dual-permitted vessel with a COI to the minimum crew size 
allowed under the COI when the vessel is underway for more than 12 
hours is to create consistency between fishing and USCG regulations, as 
described above.
    Comment 5: Any legally landed fish should be allowed to be used for 
bait, including sand perch, grunts, porgies, and squirrelfish.
    Response: It is illegal to cut-up reef fish at sea for use as bait. 
However, it is not illegal to use as bait cut-up reef fish purchased on 
shore, or whole reef fish provided the fish complies with applicable 
size and bag limits. This creates enforcement difficulties at sea 
because the origin of a reef fish carcass used for bait could be 
obtained through legal means (purchased onshore) or illegal means (a 
fish caught on the fishing trip). Prohibiting the use of reef fish as 
bait resolves this enforcement problem. The measure does allow for sand 
perch and dwarf sand perch, traditional bait species in the reef fish 
management unit, to be used as bait. It also allows other reef fish 
species not in the management unit, such as grunts, porgies, and 
squirrelfish, to be used as bait, consistent with the bait definition 
found in 50 CFR 622.38. To assist the efficiency of the reef fish 
fishery, the rule will allow reef fish parts purchased on shore to be 
used as bait in the blue crab, stone crab, deep-water crab, and spiny 
lobster trap fisheries.
    Comment 6: VMS should only be placed on larger vessels or vessels 
fishing with longlines, and commercial reef fish fishermen below a 
certain income level should be exempt from VMS requirements.
    Response: The Reef Fish FMP contains several area-specific 
regulations where fishing is restricted or prohibited to protect 
habitat, protect spawning aggregations, or reduce fishing pressure. 
Unlike size, bag, and trip limits, where the catch can be monitored 
when a vessel returns to port, area restrictions require at-sea 
enforcement. Because of the sizes of these areas and the distances from 
shore, the effectiveness of enforcement through overflights and at-sea 
interception is limited. VMS allows a more effective means to monitor 
vessels for intrusions into restricted areas and could be an important 
component of a possible future electronic logbook system.
    The Council considered placing VMS on just commercial reef fish 
vessels using longlines. However, they determined requiring VMS on all 
commercial reef fish vessels rather than just longline vessels was 
preferred because most of the area restrictions in the Gulf of Mexico, 
with the exception of the longline/buoy gear boundary and the stressed 
area boundary, apply to all gear types. An exception was made for 
vessels fishing exclusively with fish traps. Fish traps are under a 
closed entry system (no new fish trap endorsements are allowed and 
transfers are allowed only under limited conditions) and will be 
prohibited as an allowable gear in the Gulf of Mexico after February 7, 
2007. Because these vessels are unlikely to be able to recover the 
costs of installing a VMS before the phase-out is complete, and because 
they are fishing under an alternative trip initiation/termination 
reporting requirement, exempting these vessels for the short period of 
time until fish traps are prohibited was considered acceptable. This 
exemption applies only if a fish trap vessel fishes exclusively with 
traps and no other gear. If any other gear is used, the vessel would be 
required to have VMS.
    Comment 7: The cost of VMS is excessive and will put commercial 
fishermen out of business. Fishermen are already stressed from the 
increasing costs of fuel, early closures of the grouper fishery, and 
damage from storms and red tide.
    Response: As stated above, the Council determined, and NMFS agrees, 
that VMS is necessary to enforce area-specific regulations for the 
commercial fishery. The Council also considered whether the cost of VMS 
equipment should be paid by reef fish vessel owners or by NMFS. The 
Council determined if NMFS were to purchase the equipment, there could 
be a delay in implementation of the VMS requirement until funding for 
the VMS units was made available from Congress or other sources. Were 
such funding not to become available, implementation of a VMS 
requirement could be delayed indefinitely. Therefore, the Council 
selected an alternative placing the burden of purchasing a VMS with the 
vessel owner. However, it should be noted that NMFS has been provided

[[Page 45430]]

funds by Congress to purchase VMS units in other fisheries. If such 
monies were to become available for the reef fish fishery, costs could 
be defrayed for reef fish vessel owners. The cost of the installation, 
maintenance, and month-to-month communications would still be paid or 
arranged for by vessel owners as appropriate.
    Comment 8: Requiring VMS only on commercially permitted reef fish 
vessels and not on other vessels is discriminatory.Response: Commercial 
fishing vessels have greater fishing power than recreational fishing 
vessels, which are limited by bag limits. Therefore, commercial fishing 
vessels fishing within a restricted area are likely to do more harm to 
protected areas or stocks. In addition, because there are no federal 
permits for recreational fishermen, it is difficult to discern which 
recreational vessels would need to have VMS on board. Thus, 
recreational vessels were not considered for this measure.
    Comment 9: Fisherman should not have to pay for VMS if they are 
charter fishing or operating outside the Gulf of Mexico EEZ waters.
    Response: In some circumstances, a vessel owner can apply for a 
power-down exemption for VMS from NMFS. These circumstances include a 
vessel that is continuously out of the water for more than 72 
consecutive hours, or a vessel fishing with both a valid commercial and 
a valid for-hire reef fish permit. Under these circumstances, the owner 
has the ability to sign out of the VMS program for a minimum period of 
1 calendar month. The vessel would not be allowed to conduct commercial 
fishing operations until the VMS unit is reactivated and NMFS personnel 
verify consistent position reports. Regarding fishing in state waters 
or outside the Gulf of Mexico EEZ, VMS must be active for a vessel to 
participate in the commercial reef fish fishery because a vessel can 
easily transit between jurisdictional boundaries.
    Comment 10: With requirements for emergency position indicating 
radio beacons (EPIRBs) on commercial fishing vessels, VMS will provide 
little additional protection for commercial reef fish fishermen.
    Response: As indicated above, the primary purpose of VMS is to 
improve the enforcement of restricted fishing areas. A secondary 
purpose of VMS is to improve safety at sea. Some VMS models provide an 
optional safety mechanism with a ``panic button'' that can be activated 
during a vessel emergency so that USCG assets can be directed to the 
vessel's last known position. Additionally, should a vessel stop 
sending a signal or not arrive as scheduled, its cruise track can be 
monitored by NMFS personnel to determine whether the vessel may need 
assistance.
    Comment 11: With the requirement for VMS, position information can 
be compromised and sold to the public.
    Response: VMS location data for vessels are confidential and will 
not be shared with anyone without written authorization for their 
release from the vessel owner, except to those responsible for federal 
fisheries management and/or enforcement, or when required by a court 
order. Individuals can request location data only for their permitted 
vessel(s). Computers and monitors showing vessel location data are kept 
in secured rooms with restricted access to authorized personnel.
    Comment 12: Given the cost of VMS and the rare occurrence of turtle 
interactions with reef fish gear, the additional cost of turtle release 
gear will create an untenable burden on commercial reef fish fishermen.
    Response: A NMFS-issued biological opinion dated February 15, 2005, 
determined a reasonable and prudent measure to minimize the impacts of 
the incidental take of sea turtles and smalltooth sawfish during reef 
fish fishing was to ``ensure that any caught sea turtle or smalltooth 
sawfish is handled in such a way as to minimize stress to the animal to 
increase its survival.'' One of the terms and conditions of the opinion 
to address this reasonable and prudent measure states that ``use of the 
sea turtle handling and release protocols recently implemented for 
highly migratory species (HMS) pelagic longline vessels must be 
considered (50 CFR 635.21(c)(5)(i) and (ii))'' and ``at a minimum, 
regulations similar to those currently in place for Atlantic HMS bottom 
longline vessels must be implemented (50 CFR 635.21(a)(3) and 
635.21(d)(3)).'' In addition, ``implementation of these requirements 
and guidelines must occur as soon as operationally feasible and no 
later than 2007.'' NMFS worked with the Council to develop requirements 
appropriate for the reef fish fishery. Although the biological opinion 
estimates that anticipated interactions in the Gulf of Mexico fishery 
are much less common than in the HMS fisheries, particularly in the HMS 
pelagic longline fishery, the same techniques for handling and removing 
gear from any hooked endangered sea turtle or smalltooth sawfish are 
pertinent.
    The total cost for release gear per vessel is estimated to be 
between $267 and $459. Vessel sizes were taken into consideration, with 
fewer gear requirements required for vessels having a freeboard height 
less than 4 feet (1.23 m). For some vessels, the gear costs may be less 
because they already have some of the required equipment aboard. For 
example, life rings and life vests are already required items. 
Additionally, a list of NMFS-approved release gear, including 
descriptions of turtle release gear, can be found in the final rule 
implementing sea turtle bycatch and bycatch mortality mitigation 
measures for Atlantic pelagic longline vessels (69 FR 40734, July 6, 
2004). Some of these gears can be constructed rather than purchased, 
allowing further savings.
    Comment 13: The handles on short-handled dehookers are not long 
enough to release turtles from a vessel with a four foot freeboard or 
less, and by requiring either an internal or external dehooker, 
fishermen could damage sea turtles by using the wrong dehooking device 
to remove a hook.
    Response: The requirements specified for vessels with a freeboard 
height of less than four feet incorporate the best available scientific 
information, while accounting for differences between HMS commercial 
longline vessels (for which the release gear was developed) and reef 
fish vessels. Freeboard height (i.e., the working distance between the 
top rail of the gunwale to the water's surface) and available deck 
space, if a turtle were to be boated to remove the hook, were the two 
main factors believed to affect the way a captured turtle might be 
handled and what types of measures would be practical. Exempting 
vessels with a lower freeboard height from the requirement of the long-
handled line cutters or long-handled dehooking devices reduces some of 
the burden to fishermen in terms of the amount of release gear that 
must be on board, while still increasing the likelihood of successfully 
releasing sea turtles, provided that the fishermen are proficient in 
the selection and use of the appropriate gear.
    In selecting dehooking devices, internal or external dehookers are 
allowed because both can remove external hooks. This gives fishermen 
the option of selecting a dehooker that can remove external hooks, or 
having a dual-purpose dehooker. Allowing fishermen to use one dehooker 
reduces some of the burden to fishermen in terms of the amount of 
release gear that must be carried.
    Comment 14: Changing the permit renewal system from biannual to 
annual will create more paperwork and cost for fishermen.
    Response: NMFS believes requiring annual permit renewal provides 
better

[[Page 45431]]

permit accountability. Fees for annual renewal would be half of the 
current biennial fee; therefore, there would be no increased cost to 
applicants. The annual renewal requirement will apply to all permits, 
including those for highly migratory species. The changes will also 
simplify the income qualification documentation requirements for 
fisheries having income criteria, thus reducing paperwork requirements.

Classification

    The Regional Administrator, Southeast Region, NMFS, determined that 
Amendment 18A is necessary for the conservation and management of the 
Gulf reef fish fishery and is 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.
    NMFS prepared a final regulatory flexibility analysis (FRFA) for 
this final rule, based on the regulatory impact review (RIR), initial 
regulatory flexibility analysis (IRFA) and public comments. NMFS 
received several public comments on the proposed rule during the 
comment period. These comments and NMFS' responses are included in the 
final rule. None of the comments are specific to the IRFA, but some 
relate to economic and other issues affecting small entities. An 
outline of these issues and NMFS' responses are included below as part 
of the FRFA summary.
    A major economic issue raised in the comments pertains to the cost 
of VMS. One comment considered the VMS cost as excessive and could put 
commercial fishermen out of business. A second comment indicated VMS 
should be required only on larger vessels or vessels fishing with 
longlines and should not be required for commercial fishermen below a 
certain income level. Another comment stated that fishermen should not 
have to pay for VMS if they are charter fishing or operating outside 
the Gulf EEZ. NMFS is aware of the cost of VMS and stated in the RIR 
and IRFA for the proposed rule that the VMS requirement would adversely 
affect many small entities, particularly the smaller and marginal 
operations. NMFS, however, concurs with the Council when it considered 
the necessity of VMS on all commercial reef fish vessels, including 
dually permitted charter/commercial vessels, in order to enforce area-
specific regulations. There are many such areas in the Gulf where 
fishing is restricted or prohibited to protect habitat, protect 
spawning aggregations, or reduce fishing pressure. Most of these areas 
apply to all gear types. Also, if NMFS did not require VMS on charter 
fishing or fishing outside the Gulf EEZ, it would complicate 
enforcement as vessels can easily shift from charter to commercial 
fishing or transit from one jurisdictional area to another. One 
mitigating factor on these issues is that if funds become available, as 
in other fisheries requiring VMS, NMFS will pay for part of the VMS 
cost. Another mitigating factor is the power-down exemption certain 
vessels may be eligible to obtain from NMFS. In particular, vessels 
that are continuously out of the water for more than 72 consecutive 
hours or dually permitted charter/commercial vessels can sign out of 
the VMS program for 1 calendar month. But these vessels would not be 
allowed to fish commercially until the VMS unit is verified to be 
properly functioning.
    Another comment stated that given the cost of VMS, the additional 
cost of turtle release gear will create an untenable burden on 
commercial reef fish fishermen. As discussed above, the cost of VMS 
would adversely affect many commercial reef fish vessels. The 
additional cost of turtle release gear (between $267 and $459 per 
vessel) is not as large, but nevertheless, would impinge on the 
profitability of vessels, as discussed in the RIR and IRFA. NMFS worked 
with the Council to develop requirements appropriate for the reef fish 
fishery. It should be noted, though, that less gear is required for 
vessels having a freeboard height of less than 4 feet (1.23 m). In 
addition, some vessels are already equipped with some of the required 
gear, such as life rings and life vests, so the additional cost to them 
would be less than estimated in the RIR and IRFA.
    One other comment contended the change in permit renewal from 
biannual to annual will create more paperwork and cost for fishermen. 
To an extent, the change from biannual to annual permit renewal would 
increase paperwork, but not the permit renewal fee since the annual fee 
is just half of the biannual fee currently charged by NMFS. One should 
note that accompanying the annual permit requirement is the 
simplification of income documentation for renewing permits subject to 
certain qualifying income criteria.
    These and other comments have not resulted in changes to final 
rule, so the economic analysis conducted for the final rule has also 
not changed. The following completes the FRFA.
    The Magnuson-Stevens Act provides the statutory basis for the final 
rule. The final rule will: (1) Continue allowing vessels to possess 
both commercial and for-hire vessel (charter vessel/headboat) permits, 
but disallow retention of reef fish species caught under recreational 
size and possession limits when the vessel has commercial harvests of 
any reef fish species aboard; (2) allow a for-hire vessel with a U.S. 
Coast Guard (USCG) Certificate of Inspection (COI) to increase its crew 
size but not in excess of its minimum manning requirements outlined in 
its COI when fishing for reef fish under its commercial fishing 
license; (3) prohibit the use as bait any species in the reef fish 
management unit or parts thereof, with certain exceptions; (4) require 
the use of VMS systems Gulf-wide for all gear types of commercially 
permitted reef fish vessels, including charter vessels with commercial 
reef fish permits; (5) modify the TAC framework procedure to 
incorporate the Southeast Data, Assessment and Review (SEDAR) process; 
and (6) require vessels with commercial and/or for-hire reef fish 
permits to comply with sea turtle and smalltooth sawfish release 
protocols, possess a set of release gear required by the NMFS Office of 
Protected Resources, and adopt specific guidelines for the proper care 
of incidentally caught sawfish.
    The main objectives of the final rule are to resolve certain issues 
related to monitoring and enforcement of existing regulations, update 
the framework procedure for setting TAC to reflect current terminology 
and stock assessment procedures, and reduce bycatch mortality of 
incidentally caught endangered sea turtles and smalltooth sawfish.
    The final rule would impact three types of businesses in the Gulf 
reef fish fishery, namely, commercial fishing vessels, recreational 
for-hire vessels, and fish dealers. At present, the commercial reef 
fish permits are under a license limitation program and for-hire reef 
fish permits are under a moratorium, which is proposed to be converted 
into a license limitation under a separate amendment. Hence, no new 
commercial or for-hire reef fish permits will be issued when Amendment 
18A is implemented. Currently, there are 1,145 commercial and 1,574 
for-hire active vessel permits for the Gulf reef fish fishery. Of these 
permittees, 237 vessels have both commercial and for-hire vessel 
permits. Reef fish dealers in the Gulf are required to obtain permits 
to handle reef fish caught in the Gulf. There are currently 227 dealers 
permitted to buy and sell reef fish caught in the Gulf. The final rule 
is expected to affect these commercial vessels, for-hire vessels, and 
fish dealers.
    Average annual gross receipts of commercial reef fish vessels in 
the Gulf

[[Page 45432]]

range from $24,095 for low-volume vertical line vessels to $116,989 for 
high-volume longline vessels. The corresponding annual net incomes 
range from $4,479 for low-volume vertical line vessels to $28,466 for 
high-volume vertical line vessels. Permit records indicate that the 
maximum number of commercial reef fish permits owned by any single 
entity is six, so at the maximum this entity would generate a total of 
$701,934 in gross receipts. For the for-hire vessels, gross annual 
receipts range from $76,960 for charter vessels to $404,172 for 
headboats. The corresponding annual operating profits range from 
$36,758 for charter vessels to $338,209 for headboats. Permit records 
indicate a maximum of 12 permits held by any single entity. At a 
maximum, this entity would generate a total of $4,850,064 in gross 
receipts. 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 $4.0 million 
in the case of commercial harvesting entities or $6.5 million in the 
case of for-hire entities. Relative to these thresholds, both the 
commercial vessel and for-hire vessel entities affected by the final 
rule may be considered small entities.
    Employment (both part and full time) by all reef fish processors in 
the Southeast totaled 700 individuals. There is no information 
regarding employment by fish dealers, although it is safe to assume 
that dealers employ fewer individuals than processors. A seafood 
processor is a small business if it is independently owned and 
operated, not dominant in its field of operation, and employs 500 or 
fewer persons on a full-time, part-time, temporary, or other basis. A 
fish dealer is a small business if it is independently owned and 
operated, not dominant in its field of operation, and employs 100 or 
fewer persons on a full-time, part-time, temporary, or other basis. 
Given the employment information, it is very unlikely for any processor 
that holds a reef fish dealer permit to employ 500 or more persons. 
Although there are no actual data on employment by fish dealers, 
between 1997 and 2000, on average, in excess of 100 reef fish dealers 
operated in the Gulf. It is assumed that all processors must be 
dealers, yet a dealer need not be a processor. Total dealer employment, 
therefore, is expected to be slightly more than 700 individuals. Given 
the number of reef fish dealers and estimates of dealer employment, it 
is unlikely that any dealer employs more than 100 persons. Therefore, 
each dealer may be considered a small entity.
    Allowing vessels to be dually permitted (commercial and for-hire) 
would enable some 227 vessels to continue their usual operations. 
Disallowing these vessels to possess recreationally caught fish when 
commercial quantities of reef fish are aboard would improve enforcement 
without significantly impacting the operations of these dually 
permitted vessels. Allowing a for-hire vessel to increase its crew 
size, however, not in excess of its minimum manning requirements 
outlined in its COI, affords flexibility in operation and helps to 
ensure safety at sea of the crew, particularly for vessels using 
spearfish gear. This would also eliminate the discrepancy between 
current fishing rules and USCG requirements with respect to crew size 
of for-hire vessels. The prohibition on the use of reef fish, except 
sand perch and dwarf sand perch, as bait reinforces the current ban on 
cutting up reef fish at sea and regulations on bait. The economic 
impact of this provision on commercial and for-hire vessels cannot be 
quantified but is expected to be relatively small. The VMS requirement 
is expected to improve the efficacy of enforcement efforts and the 
effectiveness and timeliness of at-sea rescue efforts. All commercial 
reef fish vessels, including for-hire vessels with commercial permits, 
would incur one-time and recurring costs. First-year compliance costs 
range from $2,032 to $3,651 per vessel. These costs could be 
substantial, particularly relative to the profits of small-time vessel 
operations. The changes to the framework procedures are administrative 
in nature and are not expected to have substantial effects on fishing 
operations of reef fish vessels. The various requirements addressing 
the bycatch issue relative to sea turtles and smalltooth sawfish would 
affect all commercial and for-hire vessels in the reef fish fishery. 
Out-of-pocket expenses are estimated to be between $267 and $459 per 
vessel. These are mainly costs for equipping vessels with the required 
gear. Because some of the gear would last for some time, costs would in 
effect be spread over a number of years.
    The final rule would alter some of the reporting, record-keeping, 
and other compliance requirements in the reef fish fishery. In 
particular, the VMS requirement would affect all vessels with 
commercial and/or for-hire reef fish permits. Including installation by 
a qualified marine electrician, equipment costs range from $1,600 to 
$2,900 per vessel. In addition, yearly communication costs range from 
$432 to $751 per vessel. Compliance with sea turtle and smalltooth 
sawfish release protocols would also affect all vessels with commercial 
and/or for-hire reef fish permits. Costs range from $267 to $459 per 
vessel. In addition, changing the permit renewal from biannual to 
annual would create additional paperwork from filling and submitting 
applications but would simplify the documentation of income requirement 
for permits that have income qualifying criteria.
    Other than the provision on vessel manning requirements that 
removes the conflict between NMFS and USCG regulations, no other 
Federal rules have been uncovered that would duplicate, overlap, or 
conflict with the final rule.
    The final rule is expected to affect a substantial number of small 
entities. A total of 908 solely permitted commercial vessels, 1,337 
solely permitted for-hire vessels, and 237 dually permitted commercial/
for-hire vessels would be affected. Because all entities affected by 
the final rule are small entities, the issue of disproportional effects 
on small versus large entities does not arise. Mainly because of the 
VMS requirement, for which compliance costs range from $1,600 to $2,900 
per vessel, and the sea turtle and smalltooth sawfish release 
protocols, for which compliance costs range from $267 to $459 per 
vessel, the final rule would have substantial adverse impacts on the 
profitability of affected vessels, particularly the smaller and 
marginal operations.
    This amendment considered several alternatives to the final rule. 
Regarding dually permitted vessels (vessels with both commercial and 
for-hire permits), two other alternatives have been considered. 
Alternative 1 (status quo) continues to allow vessels to be dually 
permitted, but it does not resolve the problem of identifying whether 
caught fish are saleable (commercial trip) or not saleable (charter 
trip). Alternative 3, which disallows a vessel to be dually permitted, 
would adversely affect the fishing operations of dually permitted 
vessels by forcing them to divest of either the commercial or for-hire 
permit. Regarding crew size of for-hire vessels fishing under their 
commercial permits, four other alternatives have been considered. 
Alternative 1 (status quo), which limits for-hire vessel crew size to 
three persons, would not be compatible with minimum USCG manning 
requirements. Alternative 3, which is similar to the final rule except 
for spearfishing vessels, would benefit the spearfishing vessels. 
However, the crew size for these vessels would be incompatible with 
USCG manning

[[Page 45433]]

requirements. Alternative 4, which allows a maximum crew size of four 
persons, would also be incompatible with Coast Guard manning 
requirements. Alternative 5, which removes the maximum crew size 
requirements for dually permitted vessels, creates the same enforcement 
problem as the status quo and at the same time affords a potential 
increase in fishing effort. Regarding use of reef fish as bait, two 
other alternatives (with various sub-alternatives) have been 
considered. Alternative 1 (status quo), which allows the use of whole 
reef fish that meet the specified requirements for bait or cut-up reef 
fish purchased at shore for bait, complicates the enforcement of the 
ban on cutting up reef fish at sea as well as potentially increases the 
mortality of certain reef fish species. Alternative 3, which requires 
enforcement officials to identify reef fish species used as bait before 
assessing any potential violation, could potentially complicate 
enforcement. On the VMS requirement, two other alternatives have been 
considered. Alternative 1 (status quo), which does not require VMS, is 
the least costly to small entities but does not address vital 
enforcement and at-sea rescue issues. Similar to the final rule, 
Alternative 3 requires VMS; however, this alternative would only 
require vessel owners to pay for yearly communication costs. If 
government resources are available, this alternative would be more 
favorable to the industry than the final rule. Regarding changes to the 
framework procedure, the only other alternative is the no action 
alternative, which could potentially create some confusion in the way a 
TAC is established by the Council. Regarding sea turtle and smalltooth 
sawfish bycatch, five other alternatives have been considered. 
Alternative 1 (status quo) is the least costly of all alternatives to 
small entities, but it would not address the bycatch of sea turtles and 
smalltooth sawfish in commercial and for-hire reef fish vessels. 
Alternative 2, which requires commercial vessels to abide by the 
release protocols in effect in the HMS longline fishery, would impose a 
compliance cost ranging from $202 to $380. Alternative 3, which 
requires the commercial reef fish fleet to comply with the more 
stringent requirement in place in the HMS pelagic longline fishery, 
would carry a compliance cost of $712 to $1,282 per vessel. Alternative 
4 requires for-hire reef fish vessels to comply with either the less 
stringent release protocol as in Alternative 2 or the more stringent 
release protocol as in Alternative 3. The corresponding compliance 
costs per vessel would be similar to those in Alternative 2 or 3. 
Alternative 5, which requires commercial and for-hire reef fish vessels 
to comply with the sea turtle release protocols in place for the 
Atlantic HMS bottom longline vessels, would impose a compliance cost of 
$202 to $380 per vessel.
    Copies of the FRFA are available from NMFS (see ADDRESSES).
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' As part of the rulemaking process, NMFS prepared a fishery 
bulletin, which also serves as a small entity compliance guide. The 
fishery bulletin will be sent to all vessel permit holders for the Gulf 
reef fish fishery.
    This final rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA) and which have been 
approved by OMB under control number 0648-0544. Following are estimated 
average public reporting burdens, per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collections of information: (1) VMS installation--4 hours; (2) 
completion and submission of certification of VMS installation and 
activation--15 minutes; (3) transmission of position reports--24 
seconds; (4) fishing activity reports--1 minute; (5) annual maintenance 
of VMS--2 hours; (6) submission of requests for power down exemptions--
10 minutes; and (7) annual renewal of all permits--15 minutes. Send 
comments regarding these burden estimates or any other aspect of the 
collection-of-information requirements, including suggestions for 
reducing burden hours, to NMFS (see ADDRESSES) and by email 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, 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

50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

50 CFR Part 635

    Endangered and threatened species, Fisheries, Fishing, Fishing 
vessels, Foreign relations, Intergovernmental relations, Penalties, 
Statistics, Treaties.

    Dated: August 3, 2006.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR parts 622 and 635 are 
amended as follows:

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

0
1. The authority citation for part 622 continues to read as follows:

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

0
2. In Sec.  622.2, the definitions of ``Charter vessel'' and 
``Headboat'' are revised in alphabetical order 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. 
However, 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

[[Page 45434]]

vessels that are underway for more than 12 hours.
* * * * *
    Headboat means a vessel that holds a valid Certificate of 
Inspection (COI) issued by the USCG to carry more than six passengers 
for hire.
    (1) A headboat with a commercial vessel permit, as required under 
Sec.  622.4(a)(2), is considered to be operating as a headboat when it 
carries a passenger who pays a fee or--
    (i) In the case of persons aboard fishing for or possessing South 
Atlantic snapper-grouper, when there are more persons aboard than the 
number of crew specified in the vessel's COI; or
    (ii) In the case of persons aboard fishing for or possessing 
coastal migratory pelagic fish, when there are more than three persons 
aboard, including operator and crew.
    (2) However a vessel that has a headboat permit for Gulf reef fish, 
a commercial vessel permit for Gulf reef fish, and a valid COI issued 
by the USCG to carry passengers for hire will not be considered to be 
operating as a headboat provided--
    (i) It is not carrying a passenger who pays a fee; and
    (ii) 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.
* * * * *

0
3. In Sec.  622.4, paragraph (h)(1) is revised, and a sentence is added 
at the end of paragraph (m)(1) to read as follows:


Sec.  622.4  Permits and fees.

* * * * *
    (h) * * *
    (1) Vessel permits, licenses, and endorsements and dealer permits. 
A vessel owner or dealer who has been issued a permit, license, or 
endorsement under this section must renew such permit, license, or 
endorsement on an annual basis. The RA will mail a vessel owner or 
dealer whose permit, license, or endorsement is expiring an application 
for renewal approximately 2 months prior to the expiration date. A 
vessel owner or dealer who does not receive a renewal application from 
the RA by 45 days prior to the expiration date of the permit, license, 
or endorsement must contact the RA and request a renewal application. 
The applicant must submit a completed renewal application form and all 
required supporting documents to the RA prior to the applicable 
deadline for renewal of the permit, license, or endorsement and at 
least 30 days prior to the date on which the applicant desires to have 
the permit made effective. If the RA receives an incomplete 
application, the RA will notify the applicant of the deficiency. If the 
applicant fails to correct the deficiency within 30 days of the date of 
the RA's letter of notification, the application will be considered 
abandoned. A permit, license, or endorsement that is not renewed within 
the applicable deadline will not be reissued.
* * * * *
    (m) * * *
    (1) * * * An application for renewal or transfer of a commercial 
vessel permit for Gulf reef fish will not be considered complete until 
proof of purchase, installation, activation, and operational status of 
an approved VMS for the vessel receiving the permit has been verified 
by NMFS VMS personnel.
* * * * *

0
4. In Sec.  622.7, paragraph (ff) is added to read as follows:


Sec.  622.7  Prohibitions.

* * * * *
    (ff) Fail to comply with the protected species conservation 
measures as specified in Sec.  622.10.

0
5. Section 622.9 is revised to read as follows:


Sec.  622.9  Vessel monitoring systems (VMSs).

    (a) Requirements for use of a VMS--(1) South Atlantic rock shrimp. 
An owner or operator of a vessel that has been issued a limited access 
endorsement for South Atlantic rock shrimp must ensure that such vessel 
has an operating VMS approved by NMFS for use in the South Atlantic 
rock shrimp fishery on board when on a trip in the South Atlantic. An 
operating VMS includes an operating mobile transmitting unit on the 
vessel and a functioning communication link between the unit and NMFS 
as provided by a NMFS-approved communication service provider.
    (2) Gulf reef fish. An owner or operator of a vessel that has been 
issued a commercial vessel permit for Gulf reef fish, including a 
charter vessel/headboat issued such a permit even when under charter, 
must ensure that such vessel has an operating VMS approved by NMFS for 
use in the Gulf reef fish fishery on board at all times whether or not 
the vessel is underway, unless exempted by NMFS under the power down 
exemption of the NOAA Enforcement Draft Vessel Monitoring System 
Requirements as included in Appendix E to Final Amendment 18A to the 
Fishery Management Plan for the Reef Fish Resources of the Gulf of 
Mexico. The NOAA Enforcement Draft Vessel Monitoring System 
Requirements document is available from NMFS, Office of Enforcement, 
Southeast Region, 263 13\th\ Avenue South, St. Petersburg, FL 33701; 
phone: 800-758-4833. An operating VMS includes an operating mobile 
transmitting unit on the vessel and a functioning communication link 
between the unit and NMFS as provided by a NMFS-approved communication 
service provider. Unless exempted under the power down exemption, a VMS 
must transmit a signal indicating the vessel's accurate position at 
least once an hour, 24 hours a day every day. Prior to departure for 
each trip, a vessel owner or operator must report to NMFS any fishery 
the vessel will participate in on that trip and the specific type(s) of 
fishing gear, using NMFS-defined gear codes, that will be on board the 
vessel. This information may be reported to NMFS using the toll-free 
number, 888-219-9228, or via an attached VMS terminal. The VMS 
requirements of this paragraph apply throughout the Gulf of Mexico. An 
owner or operator of a vessel that has been issued a commercial vessel 
permit for Gulf reef fish with a fish trap endorsement and that fishes 
exclusively with fish traps is exempt from the VMS requirements of this 
paragraph through February 7, 2007.
    (b) Installation and activation of a VMS. Only a VMS that has been 
approved by NMFS for the applicable fishery may be used, and the VMS 
must be installed by a qualified marine electrician. When installing 
and activating the NMFS-approved VMS, or when reinstalling and 
reactivating such VMS, the vessel owner or operator must--
    (1) Follow procedures indicated on a NMFS-approved installation and 
activation checklist for the applicable fishery, which is available 
from NMFS, Office of Enforcement, Southeast Region, 263 13\th\ Avenue 
South, St. Petersburg, FL 33701; phone: 800-758-4833; and
    (2) Submit to NMFS, Office of Enforcement, Southeast Region, 263 
13\th\ Avenue South, St. Petersburg, FL 33701, a statement certifying 
compliance with

[[Page 45435]]

the checklist, as prescribed on the checklist.
    (3) Submit to NMFS, Office of Enforcement, Southeast Region, 263 
13\th\ Avenue South, St. Petersburg, FL 33701, a vendor-completed 
installation certification checklist, which is available from NMFS, 
Office of Enforcement, Southeast Region, 263 13\th\ Avenue South, St. 
Petersburg, FL 33701; phone: 800-758-4833.
    (c) Interference with the VMS. No person may interfere with, tamper 
with, alter, damage, disable, or impede the operation of the VMS, or 
attempt any of the same.
    (d) Interruption of operation of the VMS. When a vessel's VMS is 
not operating properly, the owner or operator must immediately contact 
NMFS, Office of Enforcement, Southeast Region, 263 13\th\ Avenue South, 
St. Petersburg, FL 33701, phone: 800-758-4833, and follow instructions 
from that office. If notified by NMFS that a vessel's VMS is not 
operating properly, the owner and operator must follow instructions 
from that office. In either event, such instructions may include, but 
are not limited to, manually communicating to a location designated by 
NMFS the vessel's positions or returning to port until the VMS is 
operable.
    (e) Access to position data. As a condition of authorized fishing 
for or possession of fish in a fishery subject to VMS requirements in 
this section, a vessel owner or operator subject to the requirements 
for a VMS in this section must allow NMFS, the USCG, and their 
authorized officers and designees access to the vessel's position data 
obtained from the VMS.

0
6. In subpart A, Sec.  622.10 is added to read as follows:


Sec.  622.10  Conservation measures for protected resources.

    (a) Atlantic dolphin and wahoo pelagic longliners. The owner or 
operator of a vessel for which a commercial permit for Atlantic dolphin 
and wahoo has been issued, as required under Sec.  622.4(a)(2)(xii), 
and that has on board a pelagic longline must post inside the 
wheelhouse the sea turtle handling and release guidelines provided by 
NMFS. Such owner or operator must also comply with the sea turtle 
bycatch mitigation measures, including gear requirements and sea turtle 
handling requirements, as specified in Sec.  635.21(c)(5)(i) and (ii) 
of this chapter, respectively. For the purpose of this paragraph, a 
vessel is considered to have pelagic longline gear on board when a 
power-operated longline hauler, a mainline, floats capable of 
supporting the mainline, and leaders (gangions) with hooks are on 
board. Removal of any one of these elements constitutes removal of 
pelagic longline gear.
    (b) Gulf reef fish commercial vessels and charter vessels/
headboats--(1) Sea turtle conservation measures. The owner or operator 
of a vessel for which a commercial vessel permit for Gulf reef fish or 
a charter vessel/headboat permit for Gulf reef fish has been issued, as 
required under Sec. Sec.  622.4(a)(2)(v) and 622.4(a)(1)(i), 
respectively, must post inside the wheelhouse, or within a waterproof 
case if no wheelhouse, a copy of the document provided by NMFS titled, 
``Careful Release Protocols for Sea Turtle Release With Minimal 
Injury,'' and must post inside the wheelhouse, or in an easily viewable 
area if no wheelhouse, the sea turtle handling and release guidelines 
provided by NMFS. Those permitted vessels with a freeboard height of 4 
ft (1.2 m) or less must have on board a dipnet, short-handled dehooker, 
long-nose or needle-nose pliers, bolt cutters, monofilament line 
cutters, and at least two types of mouth openers/mouth gags. This 
equipment must meet the specifications described in 50 CFR 
635.21(c)(5)(i)(E) through (L) with the following modifications: the 
dipnet handle can be of variable length, only one NMFS approved short-
handled dehooker is required (i.e., CFR 635.21(c)(5)(i)(G) or (H)); and 
life rings, seat cushions, life jackets, and life vests may be used as 
alternatives to tires for cushioned surfaces as specified in 50 CFR 
635.21(c)(5)(i)(F). Those permitted vessels with a freeboard height of 
greater than 4 ft (1.2 m) must have on board a dipnet, long-handled 
line clipper, a short-handled and a long-handled dehooker, long-nose or 
needle-nose pliers, bolt cutters, monofilament line cutters, and at 
least two types of mouth openers/mouth gags. This equipment must meet 
the specifications described in 50 CFR 635.21(c)(5)(i)(A) through (L) 
with the following modifications: only one NMFS approved long-handled 
dehooker (50 CFR 635.21(c)(5)(i)(B) or (C)) and one NMFS-approved 
short-handled dehooker (50 CFR 635.21(c)(5)(i)(G) or (H)) are required; 
and life rings, seat cushions, life jackets, and life vests may be used 
as alternatives to tires for cushioned surfaces as specified in 50 CFR 
635.21(c)(5)(i)(F).
    (2) Smalltooth sawfish conservation measures. The owner or operator 
of a vessel for which a commercial vessel permit for Gulf reef fish or 
a charter vessel/headboat permit for Gulf reef fish has been issued, as 
required under Sec. Sec.  622.4(a)(2)(v) and 622.4(a)(1)(i), 
respectively, that incidentally catches a smalltooth sawfish must--
    (i) Keep the sawfish in the water at all times;
    (ii) If it can be done safely, untangle the line if it is wrapped 
around the saw;
    (iii) Cut the line as close to the hook as possible; and
    (iv) Not handle the animal or attempt to remove any hooks on the 
saw, except for with a long-handled dehooker.

0
7. In Sec.  622.31, paragraph (n) is added to read as follows:


Sec.  622.31  Prohibited gear and methods.

* * * * *
    (n) Gulf reef fish other than sand perch or dwarf sand perch may 
not be used as bait in any fishery, except that, when purchased from a 
fish processor, the filleted carcasses and offal of Gulf reef fish may 
be used as bait in trap fisheries for blue crab, stone crab, deep-water 
crab, and spiny lobster.

0
8. In Sec.  622.34, a sentence is added at the end of paragraph (l) to 
read as follows:


Sec.  622.34  Gulf EEZ seasonal and/or area closures.

* * * * *
    (l) * * * Also note that if commercial quantities of Gulf reef 
fish, i.e., Gulf reef fish in excess of applicable bag/possession 
limits, are on board the vessel, no bag limit of Gulf reef fish may be 
possessed, as specified in Sec.  622.39(a)(5).
* * * * *

0
9. In Sec.  622.36, a sentence is added at the end of paragraph (a) to 
read as follows:


Sec.  622.36  Seasonal harvest limitations.

    (a) * * * Also note that if commercial quantities of Gulf reef 
fish, i.e., Gulf reef fish in excess of applicable bag/possession 
limits, are on board the vessel, no bag limit of Gulf reef fish may be 
possessed, as specified in Sec.  622.39(a)(5).
* * * * *

0
10. In Sec.  622.37, paragraph (d)(4) is added to read as follows:


Sec.  622.37  Size limits.

* * * * *
    (d) * * *
    (4) A person aboard a vessel that has a Federal commercial vessel 
permit for Gulf reef fish and commercial quantities of Gulf reef fish, 
i.e., Gulf reef fish in excess of applicable bag/possession limits, may 
not possess any Gulf reef fish that do not comply with the applicable 
commercial minimum size limit.
* * * * *

[[Page 45436]]


0
11. In Sec.  622.38, a sentence is added at the end of paragraph (d)(1) 
introductory text to read as follows:


Sec.  622.38  Landing fish intact.

* * * * *
    (d) * * *
    (1) * * * See Sec.  622.31(m) regarding a prohibition on the use of 
Gulf reef fish as bait.
* * * * *

0
12. In Sec.  622.39, paragraph (a)(2)(iii) is revised, and paragraph 
(a)(5) is added to read as follows:


Sec.  622.39  Bag and possession limits.

    (a) * * *
    (2) * * *
    (iii) For a species/species group when its quota has been reached 
and closure has been effected, provided that no commercial quantities 
of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/
possession limits, are on board as specified in paragraph (a)(5) of 
this section.
* * * * *
    (5) A person aboard a vessel that has a Federal commercial vessel 
permit for Gulf reef fish and commercial quantities of Gulf reef fish, 
i.e., Gulf reef fish in excess of applicable bag/possession limits, may 
not possess Gulf reef fish caught under a bag limit.
* * * * *


Sec.  622.41  [Amended]

0
13. In Sec.  622.41, paragraph (l)(2) is removed and reserved.

0
14. In Sec.  622.43, paragraph (a)(1)(i) is revised to read as follows:


Sec.  622.43  Closures.

    (a) * * *
    (1) * * *
    (i) Commercial quotas. The application of bag limits described in 
this paragraph (a)(1)(i) notwithstanding, bag limits of Gulf reef fish 
may not be possessed on board a vessel with commercial quantities of 
Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/
possession limits, on board, as specified in Sec.  622.39(a)(5).
    (A) If the recreational fishery for the indicated species is open, 
the bag and possession limits specified in Sec.  622.39(b) apply to all 
harvest or possession in or from the Gulf EEZ of the indicated species, 
and the sale or purchase of the indicated species taken from the Gulf 
EEZ is prohibited. In addition, the bag and possession limits for red 
snapper, when applicable, apply on board a vessel for which a 
commercial permit for Gulf reef fish has been issued, as required under 
Sec.  622.4(a)(2)(v), without regard to where such red snapper were 
harvested.
    (B) If the recreational fishery for the indicated species is 
closed, all harvest or possession in or from the Gulf EEZ of the 
indicated species is prohibited.
* * * * *

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
15. The authority citation for part 635 continues to read as follows:

    Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

0
16. In Sec.  635.4, the second sentence of paragraph (m)(1) is revised 
to read as follows:


Sec.  635.4  Permits and fees.

* * * * *
    (m) * * *
    (1) * * * A renewal application must be submitted to NMFS, at an 
address designated by NMFS, at least 30 days before a permit's 
expiration to avoid a lapse of permitted status. * * *
* * * * *
[FR Doc. E6-12984 Filed 8-8-06; 8:45 am]
BILLING CODE 3510-22-S