Marine Recreational Fisheries of the United States; National Saltwater Angler Registry Program, 79705-79719 [E8-31021]
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Federal Register / Vol. 73, No. 250 / Tuesday, December 30, 2008 / Rules and Regulations
Appendix B to Part 241—[Amended]
89. Footnote 1 to appendix B of part
241 is amended by removing the
numerical amount ‘‘$27,000’’ and
adding in its place the numerical
amount ‘‘$100,000’’.
■
PART 244—[AMENDED]
90. The authority citation for part 244
continues to read as follows:
■
Authority: 49 U.S.C. 20103, 20107, 21301;
5 U.S.C. 553 and 559; 28 U.S.C. 2461, note;
and 49 CFR 1.49.
§ 244.5
[Amended]
91. Paragraph (a) of § 244.5 is
amended by:
■ a. Removing the numerical amount
‘‘$550’’ and adding in its place the
numerical amount ‘‘$650’’;
■ b. Removing the numerical amount
‘‘$16,000’’ and adding in its place the
numerical amount ‘‘$25,000’’; and
■ c. Removing the numerical amount
‘‘$27,000’’ and adding in its place the
numerical amount ‘‘$100,000’’.
■
Issued in Washington, DC on December 18,
2008.
Clifford C. Eby,
Acting Administrator, Federal Railroad
Administration.
COLA= CPI for June 2007 = 624.129 =
1.09843, CPI for June 2004 568.2.
Step 3: Find the Raw Inflation Adjustment
or Inflation Adjustment Before Rounding.
Raw Inflation Adjustment = CMP × COLA =
$550 × 1.09843 = $604.14 ≈ $604.
Step 4: Round the Raw Inflation
Adjustment Amount. Recall that the increase
in the CMP is rounded, according to the
rounding rules.
Increase = Raw Inflation Adjustment ¥
Original CMP = $604 ¥ $550 = $54.
Use the following rounding rule: ‘‘If the
current unadjusted penalty is greater than
$100 and less than or equal to $1,000, round
the increase to the nearest multiple of $100.’’
(Federal Civil Penalties Inflation Adjustment
Act of 1990, p. 4).
Multiples of $100 are $0, $100, $200.* * *
The nearest multiple of $100 is therefore
$100. Rounded, the $54 increase = $100.
Step 5: Find the Inflation Adjusted Penalty
After Rounding.
CMP after rounding = Original CMP +
Rounded Increase = $550 + $100 = $650.
Step 6: Apply a 10% Ceiling if Necessary.
As the minimum CMP has been adjusted
previously according to the Inflation Act, the
10% cap for first-time adjustments does not
apply.
Step 7: Determine New Penalty.
The new minimum CMP = $650.
For 2008, the minimum CMP rises by $100.
[FR Doc. E8–30753 Filed 12–29–08; 8:45 am]
BILLING CODE 4910–06–P
Note: This appendix will not appear in the
Code of Federal Regulations.
DEPARTMENT OF COMMERCE
Appendix: ‘‘Step-by-Step Calculations
To Determine Civil Monetary Penalty
Update: 2008’’
National Oceanic and Atmospheric
Administration
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Step-by-Step Calculations To Determine
Civil Monetary Penalty Update: 2008
These calculations follow U.S. Department
of Transportation and Government
Accountability Office (GAO), formerly the
General Accounting Office, guidance to
determine if the minimum civil monetary
penalty (CMP) should be updated according
to the Inflation Act. (Sources for guidance: (1)
GAO attachment to memorandum with
subject ‘‘Annual Review of Department of
Transportation’s (DOT) Civil Penalties
Inflation Adjustment,’’ dated July 10, 2003;
(2) policy paper entitled ‘‘Federal Civil
Penalties Inflation Adjustment Act of 1990’’).
Overall, the minimum rises from $550 to
$650 for 2008, under the Inflation Act.
Minimum CMP
The current minimum CMP is $550, last
updated on May 28, 2004. See 69 FR 30592.
Step 1: Find the Consumer Price Index
(CPI). (Bureau of Labor Statistics (BLS), 1967
Base, U.S. City Average).
The CPI for June of the preceding year, i.e.,
CPI for June 2007 = 624.129.
The CPI for June of the year the CMP was
last set or adjusted under the Inflation Act,
i.e., CPI for June 2004 = 568.2.
Step 2: Calculate the Cost of Living
Adjustment (COLA), or the Inflation Factor.
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50 CFR Part 600
[Docket No. 071001548–81392–02]
RIN 0648–AW10
Marine Recreational Fisheries of the
United States; National Saltwater
Angler Registry Program
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
SUMMARY: NMFS issues this final rule to
adopt regulations to implement the
Magnuson-Stevens Fishery
Conservation and Management Act
(MSA).The regulations establish a
national registry of recreational anglers
fishing in the Exclusive Economic Zone
(EEZ), for anadromous species in tidal
waters or for Continental Shelf fishery
resources beyond the EEZ. Persons will
not be required to register with NMFS
if they are licensed by a state that
provides data determined to be
sufficient for the agency’s needs. The
requirement is intended to improve
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existing angling effort surveys in order
to improve their efficiency, to reduce
possible sources of bias and to improve
confidence in survey results by anglers
and fishery managers.
DATES: This final rule is effective
January 29, 2009, except for the
amendments to § 600.1405 which are
effective January 1, 2010.
ADDRESSES: Copies of the Regulatory
Impact Review/Regulatory Flexibility
Act Analysis are available from: Gordon
Colvin, Office of Science and
Technology, National Marine Fisheries
Service, 1315 East West Highway, Silver
Spring, MD 20910. Background
information and documents are
available at the NMFS Office of Science
and Technology website at https://
www.st.nmfs.noaa.gov/mrip/
Written comments regarding the
burden-hour estimates or other aspects
of the collection-of-information
requirements contained in this final rule
may be submitted to NMFS Office of
Science and Technology and by e-mail
to DavidlRostker@omb.eop.gov, or fax
to (202) 395–7285.
FOR FURTHER INFORMATION CONTACT:
Gordon Colvin, phone: 301–713–2367;
fax: 301–713–1875; or e-mail:
gordon.colvin@noaa.gov.
SUPPLEMENTARY INFORMATION:
Electronic Access
This final rule is accessible via the
Internet at the Office of the Federal
Register’s Web site at https://
www.access.gpo.gov/suldocs/.
Background
In 2004, NMFS contracted with the
National Research Council (NRC) of the
National Academy of Sciences to review
the current marine recreational fishery
survey methods used by NMFS and its
partners to monitor fishing effort and
catch. NMFS asked the NRC to: (1)
assess current survey methods for their
suitability in monitoring fishing effort
and catch in the shoreline, private boat,
and for-hire boat recreational fisheries;
(2) assess the adequacy of the methods
for providing the quality of information
needed to support accurate stock
assessments and responsible fisheries
management decisions; and (3) make
recommendations for possible
methodological improvements that
would ensure more accurate and precise
estimates of recreational effort and
catch.
The NRC’s Ocean Studies Board
formed a 10–member committee to
conduct the requested review, held a
series of five public meetings in 2005 to
gather information about the current
survey programs in each region, and
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published a final report in April 2006
[https://fermat.nap.edu/catalog/
11616.html]. The NRC report identified
a number of potential problems with the
sampling and estimation designs
employed in the current surveys and
questioned the adequacy of the existing
surveys in providing the statistics
needed to support accurate stock
assessments and appropriate fishery
management decisions. The report
recommended that current surveys be
redesigned to improve their
effectiveness, the appropriateness of
their sampling procedures, their
applicability to various kinds of
management decisions, and their
usefulness for social and economic
analyses. The NRC review deferred to
NMFS to develop a process to determine
the highest priority changes given the
costs and benefits of any specific
improvement. In response, NMFS
established the Marine Recreational
Information Program (‘‘MRIP’’) to
further study and evaluate the many
recommendations in the NRC review,
and to design and implement the
necessary changes and improvements to
the system of regional surveys of marine
recreational fishing in the nation’s
coastal states. More information on this
program is available at:
www.countmyfish.noaa.gov.
As part of MRIP, NMFS is establishing
the National Saltwater Angler Registry
Program (‘‘Registry Program’’) to
implement certain recommendations of
the NRC review. Among its findings, the
NRC review found that current
recreational survey approaches, which
rely on random telephone contacts with
residents of coastal county households
to collect marine recreational fishing
effort data, result in significant survey
over-coverage since relatively few
households include active anglers, and
under-coverage since some anglers do
not live in coastal counties or they live
in coastal counties but do not have
landline telephones. The review advised
that over-coverage results in severe
sampling inefficiency, and that undercoverage may lead to serious bias in the
resultant effort estimates since anglers
from non-coastal counties are likely to
have different effort characteristics than
those from coastal counties. To resolve
these problems, the NRC Panel
recommended the development of and
subsequent sampling from a
comprehensive national saltwater angler
registry. The panel further
recommended that the registry be
established either by implementing a
federal registration requirement or by
expanding current state saltwater
licenses to include all saltwater anglers.
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Partially in response to the NRC
Panel’s findings and recommendations,
Congress passed section 401(g) of the
MSA, which requires the Secretary of
Commerce to establish a program to
improve the quality and accuracy of
current estimates of marine recreational
fishing catch and effort by January 1,
2009, in a manner that considers and, to
the extent feasible, incorporates the
NRC Panel’s recommendations. As part
of the program, section 401(g)(1) of the
MSA requires the Secretary to register,
and collect identification and contact
information for, anglers and for-hire
vessels if they fish in the EEZ, for
Continental Shelf fishery resources
beyond the EEZ or for anadromous
species. Further, the Secretary is to
exclude from the federal registration
requirement those anglers and vessels
that are licensed or registered by a state
if the Secretary determines that
information from the state program is
suitable for the Secretary’s use or is
used to assist in completing marine
recreational fisheries statistical surveys,
or evaluating the effects of proposed
conservation and management measures
for marine recreational fisheries. The
resultant federal Registry must address
both the qualifications and procedures
for registering anglers and vessels and
for excluding qualified states’ anglers
and vessels from the federal registration
requirement.
The program must also recognize and
balance two important provisions of the
NRC recommendations and the
provisions of section 401(g) of the MSA.
First, the NRC Panel advised that a
universal registry or license-based list of
all saltwater anglers, without exceptions
to state or federal registration
requirements, is essential. Second, the
federal registration requirements of
section 401(g) of the MSA apply to
saltwater anglers fishing in state waters
(territorial sea or internal waters) when
they are fishing for anadromous fish.
Therefore, some salt water anglers
fishing in state waters would not be
required to register under this section,
although they may be subject to
permitting and other requirements
under other sections of the MSA.
Accordingly, it is necessary for states
and NMFS to work in collaboration to
build registries of saltwater anglers that
include anglers currently excepted from,
or not covered by, state license or
registration requirements and that also
include anglers who are fishing for nonanadromous marine fish in state waters.
The final rule was developed
consistent with the foregoing program
requirements. It is intended to facilitate
the development of a national registry or
database of identification and contact
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information for recreational anglers and
for-hire fishing vessels that engage in
angling and spearfishing for marine and
anadromous fish. The registry data will
be compiled in a series of regional
directories to be used to support surveys
of anglers and vessel operators to
determine their angling effort and
related data, as recommended by the
NRC Panel and as required by section
401(g)(1) of the MSA.
The final rule requires persons who
are angling, spear fishing, in possession
of angling or spearfishing equipment or
operating a vessel that carries
recreational fishing passengers for-hire
in the EEZ, or who are angling, spear
fishing or operating a vessel that carries
recreational fishing passengers for-hire
for anadromous species in tidal waters,
to register annually with NMFS. The
registration requirement is effective
January 1, 2010. Section 401(g) of the
MSA provides that the Secretary may
not charge a fee for anglers or vessels to
register with NMFS until January 1,
2011. The rule implements a registration
fee to be specified at the time of
implementation, currently estimated to
be in the range of $15 to $25 per year,
beginning in calendar year 2011.
Anglers and for-hire vessel operators
are not required to register annually if
they hold a license issued by, or are
registered by, a state which has been
designated as an exempted state as
described below. Persons who hold a
state or federal commercial fishing
license or permit or a license or permit
to engage in a subsistence fishery, and
who are lawfully fishing or in
possession of fish pursuant to such
license or permit, are not required to
register; however, holders of
commercial or subsistence licenses or
permits who are angling or spear fishing
recreationally, outside the terms and
conditions of the commercial or
subsistence license or permit, are
required to register. Anglers under the
age of 16 are not required to register,
although they could register voluntarily,
at no cost. This, in part, is due to the
practical difficulty of conducting
telephone surveys of, and of enforcing a
registration requirement for, minors.
Furthermore, in most cases, adult
anglers reside in households in which
minor anglers reside; such adults will
need to register and, if contacted by
surveys, will be able to provide the
angling effort information for minors
residing in the same household. Anglers
fishing on licensed or registered for-hire
fishing vessels are also not required to
register with NMFS.
The fee for registering is waived for
non-commercial angling or spear fishing
by indigenous people, but the
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requirement to register is not. The fee
waiver recognizes that, for many
indigenous people, fishing is motivated
primarily by a desire to gather food for
family or community use and/or for
cultural reasons. Although it is
necessary to register indigenous fishers
in order to assure that the registration
requirement is enforceable and to
ensure complete data collection, it is
appropriate to waive the registration fee
in consideration of the cultural nature of
non-commercial fishing by many
indigenous people.
The final rule also establishes the
procedures and guidelines by which
states may be designated as exempted
states. A state may apply for designation
by submitting a proposal that addresses
the requirements as noted below. A
Memorandum of Agreement (‘‘MOA’’)
between NMFS and each state will be
executed to establish the terms of
designation. States will be eligible to be
designated as exempted states in two
ways: (1) by submitting state angler and
for-hire vessel license holder data to
NMFS for inclusion in a national or
regional registry database; or (2) by
participating in regional surveys of
recreational catch and effort and making
the resultant data available to NMFS.
The regulations for exempted state
designation are designed to assure that
the license holder data submitted by
states includes all anglers and for-hire
vessels necessary to meet survey
requirements.
Comments and Responses
On June 12, 2008, NMFS published a
notice of the proposed rule (73 FR
33381). The initial public comment
period ended on August 11, 2008, and
was extended to August 21, 2008 (73 FR
46579). NMFS received comments from
444 entities, including individuals, 18
states and interstate organizations, 3
Fishery Management Councils and nongovernmental organizations
representing both marine recreational
fishing and marine conservation
interests. One petition was received that
was signed by 869 individuals. When
possible, the concepts relayed in the
comments have been consolidated and
responded to in turn. The comments
and responses have been grouped under
subject headings for ease of review.
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Comments that Express General
Opposition or Support for the Proposed
Rule
Comment 1: A number of comments
oppose registration or licensing as an
unwelcome imposition on unrestricted
access to marine fisheries, an
unnecessary burden on anglers, or an
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unwelcome federal government
intrusion in people’s lives.
Response: Registration is mandated by
§ 401(g) of the MSA. NMFS is required
to implement this requirement
consistent with the law.
NMFS notes that, in 17 of 25 states
with marine and/or anadromous
fisheries, state fishing licenses are
currently required for some or all
fishing for saltwater and anadromous
fish.
NMFS believes that the prospective
burden on anglers to comply with the
federal registration requirement can be
minimized if anglers are licensed or
registered by the states and the states
seek designation as exempted states as
provided in the rule, and agree to
submit their data to the national
registry. Anglers who hold licenses or
registrations from exempted states are
not required to register with NMFS.
Comment 2: Commercial fishing is not
adequately regulated and is responsible
for fishery stock conditions, rather than
recreational fishing. It is not necessary
to regulate recreational fishing because
recreational fishers catch too few fish to
affect marine fish populations.
Response: Although the catch of
individual anglers may seem minor,
perhaps insignificant, in the context of
large commercial fisheries, the
collective catch of all marine anglers is
potentially large and very significant for
many fisheries. In 2006, over 15 million
saltwater anglers in the U.S. made
almost 100 million fishing trips. This
collective level of fishing effort results
in a significant proportion of harvest for
many species. For example, in 2006,
recreational anglers landed the
following proportions of these species:
Striped bass: 82%
Bluefish: 71%
Summer flounder: 46%
Dolphin fish: 94%
Atlantic croaker: 32%
King mackerel: 57%
Sheepshead: 82%
Black drum: 49%
Spanish mackerel: 43%
Tautog: 92%
Red snapper: 42%
Scup: 24%
Black sea bass: 46%
Groupers: 36%
Black rockfish: 83%
Lingcod (not including Alaska): 66%
Blue rockfish: 94%
Yellowtail: 94%
California halibut: 38%
The NRC panel determined that
recreational fishing is significant, noting
in its first general conclusion,‘‘...marine
recreational fishing is a significant
source of fishing mortality for many
marine species and that adequate
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scientific information on the nature of
that mortality in time and space is
required for successful management of
those species.’’
Both commercial and recreational
fisheries are managed under the MSA.
Commercial fishing in the US EEZ is
subject to extensive permitting,
reporting and regulatory requirements
necessary to implement Fishery
Management Plans adopted under the
MSA, and to comply with the
provisions of the MSA and other
applicable law.
Comment 3: Comment opposes
federal involvement in data collection,
management and enforcement of salmon
fisheries in Alaska.
Response: The rule will not change
the management jurisdiction of salmon
in Alaska.
Comment 4: The U.S. Fish and
Wildlife Service, not NOAA, should
carry out this program.
Response: The MSA mandates that
the MRIP and the federal angler registry
be implemented by the U. S.
Department of Commerce, within which
NMFS is located.
Comment 5: The registration
requirement will cause people to choose
not to fish. This will result in adverse
impact to fishing businesses.
Response: The registration
requirement and/or the fee requirement,
when it becomes effective, may cause
some persons to decide not to fish.
NMFS evaluated this impact in the
Regulatory Impact Review/Regulatory
Flexibility Act Analysis (RIR/RFAA)
prepared for this rule, and concluded
that there is no empirical information
available to determine how the
regulation will affect angler behavior.
The RIR/RFAA includes an estimate of
a range of possible reduction of angler
expenditures. The RIR/RFAA also
concluded that expenditures not made
for recreational angling are likely to be
spent on some other recreational
activity. Therefore it is not expected that
a loss in angler expenditures will affect
the economy at a national or state level.
Comment 6: The registry rule adds to
the burden and complexity of federal
regulation of the marine charter boat
business. Regulatory requirements
should be simplified and streamlined.
Response: NMFS believes the registry
rule includes measures to minimize the
burden on for-hire fishing businesses.
First, passengers on licensed for-hire
vessels will not be required to register,
eliminating the burden to the vessel of
checking its customers for registration
or licenses. Also, for-hire vessels will
only need to register federally if they do
not have another federal for-hire permit
or license. Last, most states license for-
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hire vessels and will seek exempted
state status for for-hire fishing vessels.
NMFS believes very few for-hire vessels
would need to comply with a federal
registration requirement under the rule.
Comment 7: The imposition of the
registration requirement and of the
registration fee may anger anglers and
cause them to fail to cooperate with
surveys when contacted, or to report
inaccurately.
Response: NMFS believes that the
vast majority of anglers will understand
that it is in the best interest of sport
fisheries to have complete and accurate
data. NMFS and its partners will
implement angler outreach and
education programs to communicate
this message.
Comment 8: A number of comments
generally support the provisions of the
proposed rule.
Response: NMFS acknowledges these
comments.
Comments Related to Proposed
Registration Fees and State License Fees
Comment 9: A number of comments
expressed opposition to the registration
fees proposed to be adopted in 2011.
Response: The registration fee
requirement is consistent with NOAA
policy and with the provisions of the
MSA and other NMFS permits and
registrations. Section 401(g)(1) of the
MSA expressly authorizes charging a fee
for registration beginning in 2011. A
registry fee also establishes an incentive
for states to take necessary action to be
designated as exempted states.
Complete angler registries, as
recommended by the NRC Panel, can be
developed only if the states license or
register all of the anglers, since NMFS
cannot require all anglers fishing in
state waters to register.
Comment 10: If a registration fee is
charged, fee revenue should be
dedicated to marine fishery
conservation.
Response: Current federal law does
not authorize registration fees collected
under § 401(g) of the MSA to be
dedicated to marine fish conservation.
Any fees collected would be deposited
in the U.S. Treasury.
NMFS notes that, while the
registration fee revenue cannot be
deposited in a separate, dedicated
account, revenue from the fees is to be
equal to the cost of administering the
registry program. The funding for that
program administration is derived from
appropriations from the general
treasury, that is, the same overall fund
to which registry fees will be deposited.
Comment 11: The estimated fee of $15
to $25 is too high. NMFS should analyze
the cost to administer the program, and
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the fee should not exceed the cost of
administering registrations.
Response: The rule does not set the
registration fee. Under NMFS policy, the
fee will be determined annually,
beginning in 2010 for the 2011
registration year, based on the assessed
cost of administering the registration
program. Costs to be included are the
costs of: operating and maintaining tollfree telephone service and the webbased registration portal and associated
help desk and related services; printing
and mailing registration certificates;
managing the registry program;
maintaining the registry database;
conducting outreach efforts to make
anglers aware of registration
requirements. The actual fee will be
based on an annual assessment of these
and any other registry-related costs, and
will not exceed the cost of actually
administering the program.
For purposes of providing information
to the affected public and for complying
with applicable law, the proposed rule
included a conservatively high estimate
of the annual registration fee based on
current estimates of implementation
costs and number of anglers to be
registered. If actual costs and number of
registrants is significantly different than
current estimates, the fee will be
different than stated in the proposed
rule. Because conservative estimates
were used, it is unlikely that the actual
fee will be higher than the $15 to $25
estimate in the proposed rule. It is noted
that this estimate is lower than the fee
currently assessed for the HMS angling
permits (50 CFR 635.4(c)), a transaction
similar to a recreational registration.
Comment 12: Registration fees should
be waived or reduced for: senior anglers;
disabled persons; active-duty military;
indigent persons; shore anglers.
Response: NMFS notes that many
states provide for free or reduced-fee
licenses for anglers in these or similar
categories. However, the state license
fees generate positive net revenue to
support state conservation programs,
whereas the federal registration fee will
be set at the amount sufficient to
generate revenue equivalent to the cost
of administering the registration
program. The final rule does not provide
for reduced or free registrations for
additional categories of anglers.
Comment 13: Comments oppose the
proposed registration fee waiver for
indigenous people.
Response: NMFS will retain the fee
waiver for indigenous people for the
reasons stated in the background section
above.
Comment 14: How will indigenous
people provide proof of their eligibility
for a fee waiver? The proposed
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definition is not sufficient for this
purpose.
Response: When registering, people
will provide information that
documents why they are ‘‘indigenous
people’’ as defined in the final rule, and
affirm that the information they have
provided is accurate.
Comment 15: NMFS should provide a
reduced fee or free registration for those
categories of anglers that receive
reduced fee or free licenses in a specific
state.
Response: Anglers who are licensed
by exempted states will not be required
to register with NMFS and will not have
to pay a federal registration fee.
For anglers who are not licensed by
exempted states, NMFS must apply
consistent fee provisions to residents of
all states, regardless of individual state
license fee requirements. See Response
12 regarding consideration of reduced
fees for certain categories of registrants.
Comment 16: Fees should be used
only to support specified actions to
improve recreational fishing, including
stocking of fish, improving fishing
access, developingartificial reefs, and
law enforcement.
Response: Federal registry fees will be
deposited in the general treasury. NMFS
does not have the legal authority to set
these funds aside for the uses cited in
the comments.
Comment 17: NMFS should use fee
waivers or reduced fees as an incentive
to complete and accurate reporting.
Response: It is not possible to build
this suggestion into the final rule. For
example, NMFS will not immediately be
able to determine how complete and
accurate a person’s reports are.
However, the use of incentives to
promote complete and accurate
reporting is an innovative suggestion
that will be conveyed to the MRIP
Operations Team for consideration in
future survey design and development.
Comment 18: Whether the revenue is
collected by the state or the federal
government, a panel of anglers should
have a voice in determining how the
revenue is used.
Response: NMFS is required to
deposit registration fee revenue in the
general treasury and can not utilize the
revenue for programs that benefit sport
fisheries.
Comments Related to Exceptions to the
Federal Registration Requirement
Comment 19: Persons who hold HMS
angling permits under 50 CFR 635.4(c)
should not be required to register with
NMFS because NMFS already has
contact information for these
individuals.
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Response: NMFS agrees. Under the
final rule these individuals are not
required to register with NMFS. This
exception applies only to the individual
named on the HMS permit, and does not
apply to other anglers fishing on the
permit holder’s vessel. Any such
persons must comply with the
registration requirements, unless they
are otherwise not required to register
with NMFS.
Comment 20: NMFS should accept a
state’s or all states’ license database(s)
andnot require federal registration in the
state(s). NMFS could also institute a
program similar to the Harvest
Information Program (‘‘HIP’’), in which
states issue registration numbers to
holders of state hunting licenses and
provide the registration information to
the U.S. Fish and Wildlife Service for
surveys of migratory bird hunters.
Response: NMFS agrees that the most
effective, complete and convenient way
to create a national registry would be to
utilize complete lists of licensees or
registrants (including registration lists
equivalent to the HIP information) from
states, and intends to do so wherever
possible, consistent with the
requirements of the MSA and the NRC
Panel recommendations. To that end,
NMFS has included the state exemption
process in the rule.
NMFS cannot comply with the MSA
if it exempts a state that has major
exceptions to its license requirements,
however. Sec. 401(g)(3) of the MSA
requires NMFS to implement a program
to improve recreational survey data that
includes, to the extent feasible,
implementing the recommendations of
the NRC Panel. The Panel repeatedly
recommended that all anglers, without
exception, be included in the contact
list for future telephone surveys.
Accepting a state license or registry list
that excludes a significant category of
anglers would not be consistent with the
NRC Panel’s advice and, hence, would
not comply with the MSA.
Comment 21: NMFS should amend
§ 600.1405(a)(4)(i) to provide a ‘‘transit
exemption’’ for anglers who transit the
EEZ to fish in state waters adjacent to
offshore islands.
Response: If persons who are
transiting the EEZ between state waters
and offshore islands are not required to
register, the enforcement of the federal
registration requirement in the EEZ will
be significantly impaired. Accordingly,
the final rule does not provide for a
transit exemption.
Comment 22: Exceptions to the
federal registration requirement are
inconsistent with the NRC
recommendations and may create a
‘‘multi-class’’ system.
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Response: NMFS believes that the
exceptions to the federal registration
requirement in the rule (youth under
age 16; licensed commercial or
subsistence fishers; persons fishing
aboard licensed for-hire vessels; persons
licensed or not required to be licensed
by exempted states) are consistent with
the NRC recommendations. Exempted
state license programs may exclude
persons: under age 16; fishing on a
licensed for-hire vessel or fishing pier;
who are disabled; who are active
military while on leave. NMFS does not
agree that these exceptions are
inconsistent with the NRC
recommendations, nor does NMFS agree
that these exceptions are class-based.
Comment 23: The state has a
disproportionately high number of
military and seniors who fish and will
not be required to register with NMFS.
How will this fishing effort be
measured?
Response: The rule requires seniors
and military personnel to register with
NMFS, unless they are license holders/
registrants of an exempted state or are
residents of an exempted state that are
not required to be licensed or registered
by that state, or are otherwise exempt
per the provisions of § 600.1405(b).
There are no specific exceptions to the
registration requirements in
§ 600.1405(b) for seniors or military
personnel.
Comment 24: The state has a high
proportion of minorities. If the state is
not designated as an exempted state, the
federal registration requirement may
disproportionately affect minorities.
Response: Within a state, the effect of
the federal registration requirement is
proportionately the same for minority
and non-minority groups. For the nation
as a whole, the impact may be slightly
different dependent on the ethnic
makeup of the anglers in the nonexempt as compared to the exempt
states. NMFS does not believe this effect
will be significant, and emphasizes that
there is no intent to disproportionately
affect minorities. NMFS also notes that
states must decide whether to qualify
for, and to seek, exempted state status.
Comment 25: There should be no
exceptions to the registration
requirement.
Response: The rule includes four
principal exceptions to the requirement
to register with NMFS: (1) persons who
are licensed or registered by an
exempted state or who are not required
to hold a license in such state; (2)
persons who are fishing aboard a
licensed for-hire fishing vessel; (3)
persons under the age of 16; (4) persons
who are fishing pursuant to a
commercial or subsistence fishery
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license or permit. The first exception is
specifically provided for in § 401(g) (2)
of the MSA. As recommended by the
NRC Panel, in the future for-hire
fisheries will be accounted for
separately from private boat and shore
fishing modes. Therefore, it is not
necessary to register anglers who only
fish on for-hire vessels, as their effort
will be accounted for in the separate forhire surveys. The background section
above explains the basis for exempting
anglers under age 16. NMFS will
develop a program for seeking voluntary
registration of these anglers. Licensed
commercial and subsistence fishers
report their catches separately from
recreational surveys, and it is
appropriate to avoid duplication of that
catch reporting or confusion of the two
sectors’ catch for future management
and allocation decisions.
Comment 26: Youth under age 18, not
16, should not have to register.
Response: Age 16 was selected
because it is the most common age at
which a person must first obtain a
fishing license in states that have
saltwater licenses.
Comment 27: Occasional or vacation
anglers should not be required to
register with NMFS.
Response: If anglers who fish
infrequently are not included in the
database from which the survey is
conducted, it is likely that the resultant
estimates of angling effort will be biased
upward. The NRC panel emphasized the
need to have a complete and unbiased
registry of anglers.
Comment 28: Certain categories of
fishermen who fish mainly for
subsistence should not be required to
register with NMFS.
Response: NMFS will not require
subsistence anglers and spear fishers
who are enrolled or permitted in a state
or federal subsistence fishery program to
register. Limiting subsistence exceptions
to such enrollees assures that the
individuals and their catch is accounted
for, and also assures that the registration
requirement is fully enforceable.
Comments that Address Survey Design
and Management Issues and that
Advocate Alternative Survey
Approaches
Comment 29: NMFS should not
implement a registry. NMFS should
utilize other methods to obtain the
necessary data rather than a registrybased telephone survey.
Response: NMFS is committed, and
required under § 401 of the MSA, to
implement survey changes that, to the
extent feasible, follow the
recommendations of the NRC panel. The
process that has been established for the
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Marine Recreational Information
Program (MRIP) will ensure
comprehensive evaluation of the NRC
Panel recommendations, and final
decisions on survey design and
sampling methods to be used in the
various regional surveys will be based
on the outcome of that evaluation and
the best scientific advice available.
While it is possible that household
telephone surveys may not be utilized
in all future surveys, NMFS believes
that it is likely that such surveys will
continue to play an important role in
the future surveys for at least some
regions of the country.
Comment 30: NMFS should use data
provided voluntarily by anglers rather
than survey-based data.
Response: The MRIP will examine use
of angler-provided data for various
purposes. However, it is necessary to
have a complete and unbiased
accounting of all angler catch and effort
to meet the requirements of the MSA
and other applicable law. Use of only
that data that is provided voluntarily by
those anglers who choose to provide it
would likely introduce considerable
bias into the basic estimates of angler
effort and catch.
Comment 31: A number of comments,
including 869 signers of a petition,
stated that, since NMFS is only
concerned with fisheries in the EEZ,
NMFSshould register vessels, not
anglers, in those areas that have no
anadromous fisheries.
Response: NMFS is required by
§ 401(g)(3) of the MSA to implement a
program to improve recreational survey
data that includes, to the extent feasible,
implementing the recommendations of
the NRC Panel. The Panel repeatedly
recommended that all anglers, without
exception, be included in the contact
list for future telephone surveys. The
NRC recommendations also call on
NMFS to build a system of regional
surveys that account for all saltwater
fishing, not just fishing in the EEZ. A
vessel registry will not account for shore
fishing modes.
Vessel registries that obtain fishing
effort (and catch) information only from
the licensed or registered vessel owner
may fail to collect complete information
on the fishing catch and effort of the
non-licensed persons fishing on a
registered vessel. To the extent that such
data is not completely collected for all
passengers on registered vessels, the
resultant survey data will be subject to
bias. Vessel registries or vessel-based
surveys may be a part of a
comprehensive regional survey program
that collects effort information in a
variety of ways and includes measures
to assure that the necessary data are
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collected from all anglers, so that the
estimates are not biased.
Comment 32: State vessel registration
and beach buggy registration or permit
lists should be used as the sample list
for surveys rather than an angler
registry.
Response: Use of state vessel
registration lists is subject to the
limitations cited in the response to the
previous comment. Adding beach buggy
permit holder lists will only add a
fraction of the shore-based anglers to the
list, and will still provide an incomplete
list of shore-based anglers. Further,
surveying only the holders of beach
buggy permits excludes the nonpermitted passengers in these vehicles,
introducing potential bias to the survey
results.
Comment 33: The geographic
coverage of current angler intercept
surveys may be different than the area
of tidal waters in which anglers would
be required to register in order to create
a database for telephone surveys. To
prevent a mismatch in intercept vs.
telephone coverage, NMFS should
either expand intercepts to all tidal
waters or confine registration
requirements to marine waters in which
intercepts are conducted.
Response: NMFS acknowledges the
comment. Final decisions on the
geographic scope of all regional
intercept surveys have not been made.
Some partners have suggested that
coverage should be expanded to include
all fishing for anadromous fish in nontidal fresh waters, as well as all tidal
waters. Others have recommended
limiting coverage to saline and brackish
waters. In order to provide for effective
enforcement of the registry rule, while
providing reasonable coverage of marine
and estuarine waters in which angling
for anadromous species occurs, NMFS
has chosen to require registration for
angling for anadromous species in all
tidal waters.
Comment 34: The registration
requirement may result in mis-reporting
of fishing location.
Response: NMFS acknowledges that
persons who fish in the EEZ, but who
have not registered, may mis-report
their fishing location when surveyed.
Comment 35: The registry program
may result in over-coverage. This may
result in part from mixing registration
data from a limited federal registrant list
in some states with more complete lists
from states with combination licenses.
Response: NMFS does not believe the
registry program will result in overcoverage. The registry is a means of
reducing, not increasing, over-coverage.
The over-coverage that results from
current random-digit-dialing of coastal
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county households will decrease over
time as NMFS and its partners develop
more complete regional registry-based
surveys.
NMFS also notes that exempted states
with combination licenses will be
required to identify the salt water
anglers within these lists within two
years (see § 600.1416(d)(3). This
provision will further reduce the
potential for over-coverage.
Comment 36: Surveys being
conducted by the state (CA, AK, FL, ME
et al.) are sufficient. NMFS should
utilize the state’s survey data.
Response: NMFS will use the data
provided by state surveys that are part
of an approved regional survey pursuant
to § 600.1417. Anglers in such states
will not be required to register with
NMFS.
Comment 37: A number of comments
addressed survey design and
operational issues, including angler
outreach and education needs, asking
persons contacted in the telephone
survey to provide catch as well as effort
information, methods to facilitate the
conduct of telephone surveys et al.
Response: The design and
implementation of surveys is beyond
the scope of the rule. NMFS appreciates
the comments and will provide them to
the MRIP Operations Team for its
consideration in developing the future
recreational fishing survey design.
Comment 38: The commenter prefers
a program that provides for accurate,
complete and verifiable documentation
of all removals from the stock.
Response: A program of this nature,
while ideal, would require a complete
census and documentation of the nearly
100 million angler trips made annually.
Such an effort is far beyond the capacity
of NMFS and its partners, and is not a
cost effective approach to determining
marine recreational catch and effort.
Comment 39: For-hire data should be
obtained separately and retained
separately from other modes.
Response: MRIP will determine the
survey design for future for-hire
surveys. Consistent with the NRC
Panel’s recommendations, it is expected
that for-hire surveys and estimates will
be separate from those for other modes
of fishing.
Comments on the Proposed
Requirements for Designating Exempted
States Based on Submission of State
License-Holder Data
Comment 40: NMFS is authorized in
§ 401(g)(1) of the MSA to require federal
registration of anglers only in the EEZ
or, in state waters, only if they are
fishing for anadromous species. NMFS
should clarify the basis for the rule’s
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provisions that require states to license
or register all anglers fishing in state
waters, including those who fish only
from shore, in order to qualify for
exempted state status.
Response: Consistent with the
provisions of MSA § 401(g)(3) and the
NRC Panel recommendations, NMFS
intends to implement a series of
regional surveys that comprehensively
account for saltwater recreational fish
catch and effort in all fishing modes and
areas and which utilize angler registries
that include all anglers, without
significant exceptions or exemptions. If,
contrary to the NRC Panel’s advice,
NMFS made use of incomplete registries
or state license lists that excluded major
categories of anglers, such as all anglers
that fish from shore, the resultant survey
estimates of catch and effort would
likely be biased.
Comment 41: Section 600.1416(c)
forces a state to prove a negative.
Response: States can affirmatively
demonstrate that exclusion of certain
angler groups from a license-based
survey contact list will result in a level
of statistical variation that is statistically
insignificant.
Comment 42: There is a need for the
rule to address states’ free fishing days.
Response: Persons who are fishing
without a license in exempted states
during the state’s ‘‘free fishing days’’,
are not required to hold a state license
and are therefore not required to register
with NMFS pursuant to
§ 600.1405(b)(3).
Comment 43: NMFS should clarify
whether states can be exempted
separately for anglers and for-hire
vessels.
Response: Section 600.1415(b)(2)
provides for states to submit licenseholder data, and be exempted, for either
individual anglers or for-hire vessels.
Comment 44: Providing information
on the regions of the country in which
a state-licensed angler fishes is
problematic. States do not get this kind
of information from license applicants.
Response: States are not required to
provide this kind of data to be
designated as exempted states.
Comment 45: The state does not get
telephone numbers for all licensees. If
required by § 600.1416(a), states may
not qualify for exempted state status.
Response: The final rule provides that
states will qualify for exempted state
designation if they provide names and
addresses of licensees/registrants and
agree via the MOA to assist NOAA in
developing databases that include
telephone numbers and date of birth for
their licensees/registrants.
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Comment 46: How would exempted
states get information on seniors who
are not required to hold state licenses?
Response: States may choose to
register or offer free or low cost licenses
to seniors.
Comment 47: The state licenses
guides, not their vessels.
Notwithstanding, the state is able to
fully participate in the ongoing For-Hire
survey. Accordingly, the requirements
of vessel identification information in
§ 600.1416(a) should not disqualify the
state for designation as an exempted
state for its for-hire fishing vessels.
Response: NMFS agrees. So long as a
state can provide necessary contact
information for all for-hire fishing
operations in the state, it will qualify for
exempted state status for the for-hire
fishery. The language of § 600.1416(a)
does not preclude such designation.
Comment 48: NMFS should review
the data elements to be required from
states to assure they are necessary.
Response: NMFS believes the data
elements specified in the final rule are
necessary.
Comment 49: Clarification is needed
regarding the acceptability of lifetime
licenses, military personnel exceptions
and interstate license reciprocity in
order for a state to be exempted.
Responses: States that issue lifetime
licenses can qualify for exempted state
status. These states must agree to refresh
the address and telephone data for the
lifetime license holders within two
years of their designation. See
§ 600.1416(d)(2).
States that do not require active-duty
military personnel to hold state licenses
while on furlough will qualify for
exempted state status. There are no
other provisions related to military
personnel in the rule. See
§ 600.1416(b)(5).
The rule does not preclude
designation of a state as an exempt state
if it has a license reciprocity agreement
with another state.
Comment 50: The rule states that
NMFS ‘‘may’’ allow an exception to the
federal registration requirement for
anglers from specified states. There
should be more certainty.
Response: NMFS will not require
anglers to register when they are
licensed or registered by a state that
meets the requirements for exempted
state designation. NMFS believes the
provisions of § 600.1405(b)(2) are clear
in this regard.
Comment 51: NMFS should not
exempt states based on state fishing
licenses. States will not use license
revenue to benefit fisheries.
Response: Section 401(g)(2) of the
MSA provides that NMFS is not to
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require anglers to register if they are
licensed or registered by states which
provide sufficient data to NMFS.
Comments on the Proposed
Requirements for Designating Exempted
States Based on Participation in
Regional Surveys of Recreational Catch
and Effort
Comment 52: The Western Pacific
should be divided into at least two
regions for purposes of consideration of
regional survey-based exempted state
designations, one for the Hawaiian
archipelago and one for the western
Pacific island territories and
Commonwealths.
Response: NMFS agrees. The western
Pacific is vast and the fisheries in the
various island archipelagos are
sufficiently different to designate two
regions. At present, separate surveys are
used to estimate non-commercial fishing
catch in Hawaii and in the western
Pacific U.S. territories and
Commonwealths. These surveys are
likely to remain separate and
independent of each other under MRIP.
The final rule has been modified to
establish two separate regions, one for
the state of Hawaii and one for the U.S.
territories and Commonwealths in the
western Pacific.
Comment 53: NMFS should revise the
text in § 600.1417(b) to allow for effort
data collection methods other than use
of registries.
Response: NMFS agrees that, for
approved regional surveys, methods for
collecting angler effort data other than
registry-based telephone surveys may be
appropriate and conform to acceptable
survey standards and practices. The
intent of this provision in the proposed
rule was to ensure that, where telephone
surveys are part of regional survey
designs, they utilize complete licensebased registries rather than telephone
directory-based lists of persons to be
surveyed. The final rule has been
modified to clarify this intent and to
incorporate the comment.
Comment 54: Section 600.1417
should provide that a state exempted via
the regional survey method will not be
required to submit registry data to
NMFS.
Response: The rule does not require a
state exempted via the regional survey
method to submit registry data to
NMFS. See § 600.1415(a)(2).
Comment 55: NMFS should clarify
the intent of § 600.1417(b). Is it intended
that a state must fully qualify for a
license-based exemption in order to also
qualify for a survey-based exemption?
Response: No. A state may qualify for
a regional survey-based exemption even
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if it has no license. The final rule
clarifies the intent of § 600.1417(b).
Comment 56: NMFS should amend
§ 600.1415 to automatically exempt
states that are currently partnering with
NMFS in regional recreational surveys.
Response: The final rule clarifies the
requirements and adds options for states
to be designated as exempted states
based on their participation in regional
surveys. NMFS believes that the process
for designation of exempted states will
appropriately formalize the commitment
among the regional survey partners,
including NMFS, and is not overly
burdensome. However, the rule does not
provide for automatic exempted state
designation.
Comment 57: The rule should provide
more information and clarify
requirements by which states may be
exempted based on participation in a
regional survey.
Response: The final rule clarifies that
a qualifying regional survey must
include all of the states within such a
region. In addition, the responses to
comments 52 to 55 serve to add
additional information and clarification
regarding the requirements for state
exemption based on participation in a
regional survey.
Comment 58: If NMFS does not
conduct surveys in certain areas (e.g.
telephone surveys in Guam, CNMI,
American Samoa), citizens of those
areas will be required to register, but the
registry will not be used for data
collection.
Response: In such regions, NMFS
strongly encourages the states to take
such action as necessary to be
designated as an exempted state.
Comment 59: In § 600.1416(b)(2), the
reference to § 600.1415(c)(4)(i) is
incorrect. It should be to
§ 600.1416(d)(1).
Response: The comment is correct.
The final rule incorporates the revised
reference.
Comment 60: NMFS should assure
that exempted state survey data is
sufficiently complete, accurate and
timely for the needs of NMFS and the
Councils.
Response: The MRIP will, over time,
develop and implement a system of
regional surveys that will provide data
that meet the needs of NMFS and the
councils. Survey and data quality
standards will be developed and
applied to all participating regional and
state surveys that address satisfying
these needs. These standards will be
applied to regional surveys under
§ 600.1417(b)(4).
Comment 61: States should be able to
submit proposals per § 600.1417 with a
duration of more than one year.
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Response: NMFS agrees. The final
rule deletes the word ‘‘annual’’. The
state-federal MOA will specify the
frequency of submission of state
proposals.
Comments Regarding the Applicability
and Coverage of the Federal Registration
Requirement
Comment 62: In § 600.1404, NMFS
should delete sections (1)(iii); (3)(ii)
and(4)(iii). This will limit the
registration requirement for persons
fishing for salmon to those who are
fishing in tidal waters, consistent with
other anadromous species.
Response: NMFS agrees. The
geographic scope of MRIP is not
expected to include fishing in the nontidal freshwater sections of rivers and
watersheds in which anadromous fish,
including salmon, migrate. Accordingly,
the recommended revisions are
incorporated in the final rule.
Comment 63: NMFS should amend
§ 600.1410(f) so that anglers’ federal
registration term coincides with the
angler’s state license term.
Response: In order to adopt this
recommendation, NMFS would have to
construct a complex system with
multiple registration terms based on the
license terms in each state. Moreover,
the terms would be mainly applicable to
states whose anglers are licensed and
would presumably be exempted states
or seeking exempted state designation.
NMFS will maintain a single
registration term for all federal
registrants nation-wide: one year from
the date of registration.
Comment 64: NMFS should explain
more fully why anadromous fish
managed by states are included.
Response: Angling for anadromous
species is included in the actions for
which registration is required because
§ 401(g)(1) of the MSA specifically
requires such registration: ‘‘The
program...shall provide for– ...(A) the
registration (including identification
and contact information) of individuals
who engage in recreational fishing–...(ii)
for anadromous species;’’...
Comment 65: NMFS should clarify
the issue of who needs to register when
fishing in state waters (i.e. clarify what
is meant by ‘‘angling for anadromous
species’’).
Response: The rule states that
registration is required for persons who
are angling or spear fishing for
anadromous fish in all tidal waters.
Angling is defined as: fishing for,
attempting to fish for, catching or
attempting to catch fish by any person
(angler) with a hook attached to a line
that is hand-held or by rod and reel
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made for this purpose. Spearfishing is
similarly defined.
In tidal waters where anadromous fish
are present, anglers would therefore
need to be registered to be certain they
would not be in violation of the
registration requirement. NMFS will
emphasize this in outreach and
education messages in the nonexempted states where anadromous
species are common.
Comment 66: The Background,
paragraph 6, page 3, refers to ‘‘marine’’
anglers and vessels. This should be
revised to reflect applicability to
anadromous fish in fresh waters,
including tidal fresh waters.
Response: The Background text has
been modified in the final rule as
suggested by the comment.
Comment 67: In CNMI, Guam and
American Samoa, there are no
commercial licenses. How would
commercial fishing in these waters be
excluded in order to prevent
duplication?
Response: If there are no commercial
licenses, persons who take fish for sale
by angling and spear fishing will need
to register under the final rule unless
the state or territory is designated as an
exempted state. Regional survey
managers and commercial statisticians
would need to collaborate to develop
regionally-tailored approaches to
gathering complete, but not duplicative,
data.
Comment 68: Seniors who are not
required to hold a license in exempted
states would have to register federally.
Response: The comment is incorrect.
Seniors who are not required to hold
state licenses in exempted states are not
required to register with NMFS
pursuant to § 600.1405(b)(3).
Comment 69: NMFS should apply the
registration requirement to recreational
fishing as per 16 U.S.C. 1802 Sec. 3(37)
as fishing for sport or pleasure. Using
angling and spear fishing as proposed
broadens the applicability of the rule to
include certain subsistence and nonrecreational uses.
Response: NMFS has chosen to apply
the registration requirement to the
specific, observable actions of angling or
spear fishing rather than to the less well
defined activity of recreational fishing.
This approach is necessary to ensure
that the requirement for registration can
be effectively enforced. If the
requirement were applied to
‘‘recreational fishing’’, an officer would
have to observe, and NMFS would have
to prove, a person’s motivation for
engaging in fishing. NMFS cannot
enforce the rule on this basis. NMFS
acknowledges that an effect of use of
angling and spear fishing as the basis for
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registration is to apply the requirement
to certain subsistence and nonrecreational fisheries. The registry fee
for indigenous people is waived for this
reason. NMFS also believes many states
in which there are well defined
subsistence fisheries will be designated
as exempted states.
NMFS recognizes that, where there
are established regulatory programs for
subsistence fishing, requiring anglers
and spear fishers who are enrolled or
permitted in such programs to also
register under this rule may cause
unnecessary and confusing dual
registration, and may also result in
duplication of reporting and accounting
for catch. Therefore, the final rule does
not require persons who are formally
enrolled or permitted to participate in
state or federal subsistence fisheries to
register with NMFS.
Comment 70: The rule should include
a clear statement that anglers fishing in
state waters would only have to comply
with state licensing regulations and not
have to register federally.
Response: Persons who are angling in
state waters for anadromous species will
have to register federally unless they
meet the criteria of another provision of
§ 600.1405(b), even if a state license is
also required. The rule specifies the
angling and spear fishing activities that
require federal registration. NMFS will
provide public information and
outreach materials that clarify these
requirements for anglers.
Comment 71: NMFS should include
the Alaskan halibut fishery.
Response: Individuals and charter
boats that fish for Alaskan halibut in the
EEZ are included in the registry
program. If the state of Alaska is
designated as an exempted state, its
license holders will not be required to
register with NMFS. NMFS fully expects
that, if designated as an exempted state,
Alaska will provide license-holder data
that includes persons and charter boats
that fish for halibut and/or acceptable
survey data that includes halibut catch
data.
Comment 72: NMFS should include
charter fishing vessels in the registry
program.
Response: Charter vessels are
included in the registry program. See
§ 600.1405(a)(2) and (3) and
§ 600.1415(a)(1).
Comments Regarding Definitions
Comment 73: NMFS should add a
definition of ‘‘tidal waters’’. Consider a
definition that defines tidal waters as
those lying seaward of a line established
in each coastal state’s laws or
regulations to delineate the boundary
between state freshwater and saltwater
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licensing requirements or management
zones.
Response: NMFS agrees with the need
to add a definition of ‘‘tidal waters’’,
and has added the following definition
to the final rule: waters that lie below
mean high water and seaward of the
first upstream obstruction or barrier to
tidal action and that are subject to the
ebb and flow of the astronomical tides
under ordinary conditions.
NMFS is not able to incorporate by
reference individual state boundaries as
established by state laws. However,
NMFS can consider incorporating stateestablished boundaries between salt
water and fresh water license
requirements or management areas in
the Memoranda of Agreement for
exempted states. Sections 600.1416(a)
and 600.1416(d)(3) of the final rule have
been modified to incorporate this
provision.
Comment 74: Define ‘‘continental
shelf fishery resources beyond the EEZ.’’
Response: ‘‘Continental shelf fishery
resources’’ and ‘‘exclusive economic
zone’’ are defined in the MSA. Absent
a definition in the rule, the statutory
definition applies. The final rule
references the statutory definition.
Comment 75: NMFS should define
‘‘licensed fishing piers.’’
Response: The final rule refers to
state-licensed fishing pier. Persons who
fish on a state-licensed pier may or may
not pay a fee to the permit holder and
may or may not be required to hold a
state fishing license.
Comment 76: NMFS should amend
the definition of ‘‘for hire’’ fishing
vessel to exclude fishing guides that
operate in inland fresh waters.
Response: The final rule does not
require the operator of a for-hire fishing
vessel in non-tidal waters to register.
Comment 77: In § 600.1416(b)(4),
NMFS should add ‘‘gig’’ to the gears
used to spearfish.
Response: The definition of ‘‘spear’’
in § 600.10, which is applicable
to§ 600.1416(b)(4) is: ‘‘Spear means a
sharp, pointed, or barbed instrument on
a shaft. Spears can be operated
manually or shot from a gun or sling.’’
This general definition should be
applicable to gigs or other locallynamed spear-like gear.
Comment 78: NMFS should clarify
the difference between licensed piers in
§ 600.1416(b)(4) and public piers in
§ 600.1416(c)(3).
Response: In general, licensed piers
are those which are licensed by a state
and on which anglers may be allowed
to fish without a state fishing license.
Pier license holders may be required to
submit data to the state regarding the
fishing that occurs on the piers. States
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that do not require anglers fishing on
licensed piers to hold a state license
may be designated as exempted states
only if the pier permit holder supplies
effort information or angler contact
information to the state. Public piers
referred to in § 600.1416(c)(3) are owned
and operated by a public entity. On
these piers, anglers, who would
otherwise need a state license, are not
required to hold one. NMFS believes
only one state operates this kind of pier.
Comment 79: The definition of angler/
spear fisher does not include other
recreational gear types (nets, traps, hand
harvest).
Response: The comment is correct. In
general, the scope of surveys that NMFS
will conduct using registry data will not
include gear types other than angling
and spear fishing.
Comment 80: The definition of
angling should be included in the rule
and should include both traditional
angling and spearfishing.
Response: The rule’s definition of
‘‘angler’’ references the definition of
angling in 50 CFR 600.10. NMFS
believes that reference is appropriate
and sufficient. The rule also includes a
separate definition of ‘‘spearfishing’’.
Comment 81: Anadromous species
should be defined as per 50 CFR 600.10.
Response: In order to assure effective
enforcement and to facilitate angler
information and education regarding
registration requirements, NMFS has
determined that a definition of
anadromous species that simply lists
each covered species is the most
effective.
Comment 82: NMFS should broaden
the definition of a for-hire vessel to
conform to the charter fishing vessel
definition in the MSA: ‘‘The term
‘charter fishing’ means fishing from a
vessel carrying a passenger for hire (as
defined in section 2101(21a) of title 46,
United States Code) who is engaged in
recreational fishing’’.
Response: Consistent with the
comment, the definition has been
revised in the final rule to include
vessels that carry passengers for a fee or
other consideration.
Comment 83: Add the following
species to the list in § 600.1400: Brook
trout, brown trout, Dolly Varden and
sheefish. Hickory shad should not be
included in the list of anadromous
species.
Response: NMFS believes that sea-run
brook and brown trout fisheries are not
currently of sufficient magnitude or
significance to warrant adding them to
the list of anadromous species.
NMFS has added sheefish and Dolly
Varden to the definition in the final
rule.
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NMFS believes that hickory shad are
properly classified as anadromous fish.
See, for example, the Atlantic States
Marine Fisheries Commission,
Amendment 1 to the Interstate Fishery
Management Plan for Shad and River
Herring, April, 1999.
Comment 84: ‘‘State’’ should be
defined.
Response: ‘‘State’’ is defined in the
MSA. Absent a definition in the rule,
the statutory definition applies. The
final rule references the statutory
definition.
Comments Regarding the Registration
Process and Information Required to
Register
Comment 85: The requirement for a
registrant to state where they intend to
fish may be perceived as limiting where
a person may fish.
Response: The rule provides that,
once a person has registered, he or she
may fish in the EEZ or for anadromous
species in any region of the country,
regardless of their stated intentions at
the time of registration. Registrants will
be asked to provide information about
the regions in which they expect to fish
in order to compile accurate and
complete regional registries of anglers
for survey purposes. NMFS will develop
informational materials for registrants
and potential registrants that clarify this
issue.
Comment 86: Date of birth should also
be collected from registrants.
Response: NMFS agrees. Date of birth
is added to the information to be
provided by registrants. This
information will assist in confirming the
identity of individual registrants, and
will enable NMFS to differentiate
anglers within households for future
angler-based survey purposes.
Comment 87: The rule should address
confidentiality of state license data.
Response: The MOA’s with exempted
states will address use of state-supplied
data.
Comment 88: A person should have to
register only once. No annual renewal
should be required.
Response: NMFS will require anglers
to register annually. Experience using
state license data indicates that it is
necessary to update angler contact
information annually. The proportion of
license-holders whose address or
telephone numbers change over the
course of a year is too high to provide
for sufficiently efficient and accurate
surveys unless there are annual updates.
Comment 89: It is necessary to assure
protection of personal information in
the registry.
Response: NMFS will comply with
federal requirements for protection of
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personally-identifiable-information in
its data files.
Comment 90: Persons should be able
to register at point-of-sale outlets such
as tackle shops.
Response: NMFS cannot establish a
nation-wide system of registration
vendors in a timely and cost effective
manner. NMFS believes that the toll-free
and internet-based registration options
that will be made available are
sufficiently convenient for the affected
angling public and are cost effective for
NMFS to implement.
Comment 91: Will a person be able to
register if they do not have a telephone
or if they choose not to provide the
telephone number? How will the
registration program and resultant
survey deal with cell phone-only
households?
Response: Persons will need to
register either via toll-free telephone or
internet. NMFS believes that essentially
all anglers will be able to register via
one of these means.
Registrants will need to provide a
telephone number, which may be a cell
phone number, in order to complete the
registration process.
NMFS is exploring options to allow
cell phone accounts to receive survey
calls without any cost to the account.
Comment 92: NMFS should consider
alternatives to requiring and enforcing a
requirement for persons to provide
identification information.
Response: NMFS is not aware of
effective and enforceable alternatives to
such requirements. The MSA requires
identification and contact information.
Comment 93: Registrants should be
asked to provide primary target species
and primary mode of fishing when
registering.
Response: The purpose of the
registration program is to enable
creation of regional registries of anglers
from which lists of persons to be
surveyed about fishing effort can be
drawn. Target species and fishing mode
are not currently required for effort
characterization surveys. Moreover,
information of this nature can be
obtained during telephone surveys, and
may not be necessary to obtain at time
of registration.
MRIP may determine it necessary to
expand the scope of telephone surveys
in the future to capture this and other
data.
Comment 94: The rule should clarify
whether an angler or spearfisher who
fishes in more than one state must
register for each state in which they fish.
Also, the rule should state whether an
angler or spearfisher who holds a
license from, or is registered by, an
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exempted state needs to register if they
fish in another state.
Response: The registration
requirements and the exceptions thereto
as set forth in § 600.1405(b) provide that
a person who is required to register with
NMFS must do so only once per year,
regardless of where they fish. Further, a
person who is not required to register
with NMFS pursuant to § 600.1405(b)(2)
or (3) need not register if they fish in a
state other than that in which they
qualified for the exception. NMFS will
provide outreach and education
materials that will clarify the
registration requirements for the public.
Comments Regarding the Role of the
States in the Registry Program and State
Costs for Implementing the Program
Comment 95: The proposed rule does
not estimate costs for states to educate
anglers regarding registry program
requirements.
Response: The statement is correct.
NMFS intends to meet the necessary
outreach and education needs for
anglers regarding registration
requirements.
Comment 96: NMFS should
acknowledge the role of states in
enforcing the rule and provide training
and resources.
Response: NMFS agrees that state
assistance in enforcing the registration
requirement will be necessary.
Comment 97: The commenter
suggested that states submit data on a
bimonthly schedule.
Response: Data delivery requirements
for exempted states will be negotiated
and included in the MOA’s. NMFS
believes that these requirements should
be flexible and should not be specified
in the rule.
Comment 98: The updates required
after two years for lifetime and
combination licenses will be expensive
for states to produce.
Response: NMFS acknowledges that
there will be a cost to the states to
prepare the updates.
Comment 99: The proposed registry
program does not address the needs of
the state within its waters.
Response: Pursuant to the provisions
of the MSA, persons who fish
exclusively for non-anadromous fish in
state waters will not be required to
register. NMFS must work with states to
build complete angler registries that
cover all fishing.
Comment 100: The registry
requirement may drive anglers inshore,
affecting what is measured. Further, the
federal waters-only registration
requirement may shift fishing effort to
state waters, increasing fishing impact
on state waters fishery resources and
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burden state programs. This is mainly
an issue after the fee is required in 2011.
Response: NMFS agrees that these
outcomes could occur. Nonetheless, the
MSA requires NMFS to register anglers
fishing in the EEZ to register, and is not
authorized to extend that requirement to
fishing in state waters for nonanadromous fish. If states are designated
as exempted states by submitting
complete angler registries, or by
participating in approved regional
survey programs, these outcomes will
not occur.
Comment 101: Decreasing fishing
effort in federal waters would decrease
federal dollars the state receives for
recreational programs.
Response: The Federal Aid in
Sportfish Restoration grant program
allocates grant funds to states based on
a formula that includes the land and
water area of the state and the number
of licensed anglers. It is not based on
whether fishing activities based in a
state occur in state or federal waters.
The registry rule should not affect a
state’s grant share under this program.
Comment 102: NMFS should assist
states in accessing databases that will
help update lifetime license holder data.
Response: NMFS intends to provide
such assistance to states in the future.
Comment 103: NMFS should commit
to the states that it will not require
additional data to retain exempted state
designation for a period of five years.
Response: Any additional substantive
data requirements would require an
amendment to the final rule. NMFS
believes it is necessary to preserve
options for future data improvements,
and that the rulemaking process
sufficiently preserves the states’
interests in this regard.
Comment 104: Registrants should be
able to re-enter the registration system
and update their address and telephone
information.
Response: NMFS will consider
enabling updates in the registration
system as it is developed. However, this
operational measure does not need to be
included in the rule.
Comments on NEPA Categorical
Exclusion
Comment 105: The rule should not be
categorically excluded from NEPA. The
intent of the rule is to modify the
human environment by modifying
human behavior.
Response: The intent of the rule is not
to modify human behavior. The intent
of the rule is solely to develop a
complete database of persons and forhire vessels who are angling and spear
fishing in marine and estuarine waters
in order to improve surveys that
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estimate the catch and effort in these
fisheries. Accordingly, NMFS has
concluded that the action is
categorically excluded from NEPA
review.
Comments Related to Adoption of
Saltwater Licenses by States
Comment 106: Several comments
offered opinions regarding how state
license fees should be set: states should
charge lower fees for shore fishing; there
should be a single license/fee for both
fresh and salt water fishing; add an
anadromous fishing stamp at a low fee
to the state license.
Response: The fees charged by states
for fishing licenses are beyond the scope
of this rulemaking.
Comment 107: There should be a
single federal fishing license applicable
to all salt water fishing.
Response: Section 401(g) of the MSA
requires NMFS to establish a registry
program for recreational fishermen
fishing in the EEZ, fishing for
anadromous species, and fishing for
continental shelf fishery resources. In
general, states have authority to manage
fisheries, including issuing licenses,
within three (in some cases, nine) miles
from shore.
Comment 108: Comments object to
having to purchase a license in multiple
states. State licenses should provide for
reciprocal fishing privileges among all
states or among states in a given region.
Response: This comment is beyond
the scope of this rulemaking. The final
rule does not prevent a state that allows
license reciprocity with other states
from being designated as an exempted
state.
Comment 109: If a state opts out of the
registry program, it should be required
to honor federal registration or other
states’ licenses.
Response: A state would ‘‘opt out’’ of
the registry program by failing to qualify
or apply for exempted state designation.
If such a state required a license in its
waters, that license requirement would
not be affected by the rule.
Comments on Fishery Management
Issues
Comment 110: Will federal registrants
be subject to the fishing regulations in
the waters in which they are fishing?
Response: Federal registrants must
comply with all applicable state and
federal fishing regulations wherever
they are fishing or in possession of fish.
The federal registration does not waive
or supersede any other fishery
regulation.
Comment 111: Will NMFS maintain
the current federal permits required in
certain for-hire fisheries?
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Response: Certain for-hire fisheries
have established permitting
requirements pursuant to regulations
implementing federal Fishery
Management Plans. Those permitting
regulations are independent of the
registration requirement and must be
complied with even if a vessel has
registered pursuant to this rule.
However, the final rule does not require
most for-hire vessels that hold another
NMFS-issued permit to register (see
§ 600.1405(b)(4)).
Comment 112: The rule should make
it clear that the registry will not be used
to restrict or limit future access to
fisheries.
Response: NMFS intends to use the
registry for the purpose stated in the
proposed rule and in the Paperwork
Reduction Act filing prepared for the
rule.
Comment 113: A number of
comments addressed how marine
fisheries are managed (e.g. states should
have more uniform regulations;
commercial fisheries should be more
restricted).
Response: Fisheries management
actions are beyond the scope of the rule.
Comments Related to Enforcement
Comment 114: NMFS should explain
how the production-on-demand
requirement will improve surveys.
Response: The production-on-demand
requirements are intended to facilitate
enforcement of the registration
requirement by authorized officers, not
to improve surveys. The term
‘‘authorized officer’’ does not apply to
persons who conduct surveys, and
survey interviewers will not be legally
empowered to require persons to
produce proof of registration.
Comment 115: The federal
government cannot effectively enforce a
universal registration requirement.
Response: NMFS will develop and
execute an enforcement strategy for the
registration requirement that will utilize
the NMFS Office for Law Enforcement,
the U.S. Coast Guard and the state
marine enforcement agencies with
which NMFS maintains Joint
Enforcement Agreements to
appropriately and effectively enforce the
registration requirement.
Comment 116: Non-anglers may
register and corrupt survey data.
Response: NMFS believes this is very
unlikely to occur.
Comment 117: If licenses or federal
registration is required, the requirement
should be fully enforced in
consideration of those who comply.
Response: NMFS intends to work
with its enforcement partners in the
U.S. Coast Guard and the states to
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Response: NMFS cannot determine
objectively what actions would
constitute ‘‘good faith’’ in this context.
NMFS believes that the most effective
and equitable way of giving all the states
that need additional time to enact
legislation is to provide an additional
year in which to do so.
Comments Regarding Timing of
Implementation of the Rule
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effectively enforce the registration
requirement.
Comment 118: Penalty provisions
should be specified in the rule.
Response: Penalties for violating
provisions of the MSA are stated in the
act, and in the NOAA Civil Monetary
Penalty Schedule.
Changes from the Proposed Rule
The following changes were made in
the final rule based on public comment
on the proposed rule:
In § 600.1400, Definitions: Dolly
varden and sheefish were added to the
list of anadromous species; definitions
of ‘‘Continental shelf fishery resources’’
and ‘‘state’’ were added consistent with
the definitions in the MSA; the
definition of ‘‘for-hire fishing vessel’’
was modified to be consistent with the
definition of charter fishing in the MSA;
a definition of ‘‘tidal waters’’ was
added; the definition of ‘‘angler’’ and
‘‘spear fishing’’ were modified such that
they apply to angling and spear fishing
in tidal waters.
The effective date of the requirement
in § 600.1405(a) for persons and for-hire
vessels to register with NMFS was
changed from January 1, 2009 to January
1, 2010. To conform with that change,
the date by which an exempted state
must submit supplemental data under
§ 600.1416(d) was changed to January 1,
2012, or within two years of the
effective date of the Memorandum of
Agreement, whichever is later.
Section 600.1405(a) was modified so
that angling or spear fishing for salmon,
or operating a for-hire vessel when
doing so, in inland waters upstream of
the extent of tidal waters no longer
requires registration with NMFS. The
final rule treats angling and spear
fishing for salmon consistently with all
other anadromous species.
Section 600.1405(b)(8) is added to
provide that persons who hold an HMS
angling permit under 50 CFR 635.4(c)
are not required to register with NMFS.
Section 600.1405(b)(9) is added to
provide that persons who hold a state or
federal permit to participate in a
subsistence fishery program are not
required to register with NMFS.
Date of birth is added to the
information a registrant must submit
and to the data an exempted state will
transmit to NMFS about its license
holders/registrants.
The following additional information
will be included in the Memoranda of
Agreement between NMFS and
exempted states: identification of the
tidal waters of the state within which
state license holders/registrants are
identified in the state’s data submitted
to NMFS; states’ commitments to
Comment 119: In those states that do
not currently license or register anglers,
or which have exceptions to their
license requirements that will preclude
designation as exempted states, the state
legislatures must pass legislation that
adopts the changes necessary for the
states to qualify for exempted state
designation. The state legislatures will
not have time to introduce and pass
legislation that conforms to the
requirements of the final rule in the
brief period between the time the final
rule is adopted and the January, 2009,
implementation of the federal
registration requirement. Several states
request that NMFS delay the
implementation date of the registration
requirement for a sufficient period to
enable their legislatures to pass the
necessary legislation.
Response: NMFS believes that it is
essential to work toward use of
complete state license or registry data
rather than a federal registration
database. Accordingly, NMFS fully
supports the efforts of states to adopt
saltwater licenses or registries, and to
eliminate significant exceptions to state
license requirements. NMFS will
therefore delay the implementation of
the requirement for individuals and forhire vessels to register with NMFS until
January 1, 2010, to provide states with
the time required to enact the necessary
measures. Section 600.1405 of the final
rule sets January 1, 2010, as the effective
date of the angler and for-hire vessel
federal registration requirement.
Comment 120: More detail is needed
regarding the timing of exempted state
designation following adoption of the
final rule.
Response: The final rule delays
implementation of the federal
registration requirement for an
individual or for-hire vessel in a nonexempted state until January 1, 2010.
States may seek exempted state status at
any time following adoption of the final
rule.
Comment 121: NMFS should
designate any state that is working in
good faith toward adopting a license or
registry or toward removing major
exemptions as an interim exempted
state.
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completion of telephone number and
date of birth information in their license
databases.
In § 600.1416(a), a state seeking
exempted state status based on
submission of state license-holder data
will be required to submit licensees’/
registrants’ telephone number and date
of birth to the extent such data is
available in the state’s database.
In § 600.1416(b)(2), the reference to
§ 600.1415(c)(4)(i) was changed to
§ 600.1416(d)(1).
Section 600.1416(b)(4) is modified to
clarify that licensed fishing piers are
those licensed by a state and to provide
that state license exceptions for such
piers may be accepted only if the
license-holder submits to the state
complete angler contact information or
angler effort information for users of the
pier.
The deadline for an exempted state to
submit angler identification data under
§ 600.1415(d) is changed from Jan 1,
2011 or within two years of the effective
date of the MOA, whichever is later, to
be January 1, 2012, or within two years
of the effective date of the MOA to be
consistent with the one year delay in the
federal registration requirement.
The provisions relating to
requirements for exempted state
designation based on a state’s
participation in a regional survey of
recreational fishing catch and effort in
§ 600.1417 were modified as follows:
state proposals need not be submitted
annually; the qualifying regions were
changed to split the western Pacific into
two regions, one for Hawaii and one for
the western Pacific U.S. territories and
Commonwealths; a qualifying survey
must include all of the states within a
defined region; the provision that a
survey must include use of angler
registries was modified to allow for use
of other approved methods to collect
effort data and to require use of angler
registries if a telephone survey is a
component of a regional survey.
In addition to the changes made in
response to public comment as
described above, NMFS made two
additional changes in the final rule. The
words ‘‘or to be registered to fish’’ were
added to § 600.1405(b)(3). This addition
is included to ensure that, if an
exempted state registers anglers rather
than licensing them, those anglers who
are not required by the state to register
would not be required to register with
NMFS.
Section 600.1405(b) (10) is added to
provide that U. S. based vessels, anglers
and spear fishers who are fishing in
waters under the control of a foreign
nation are not required to register with
NMFS. This change is added to clarify
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the applicability of the rule to U.S.
vessels or persons fishing in waters of
a foreign nation.
Classification
This final rule is published under the
authority of the Magnuson-Stevens Act,
16 U.S.C. 1801 et seq. NMFS has
determined that the rule is consistent
with the applicable provisions of the
Magnuson-Stevens Act and other
applicable law.
This final rule contains a collectionof-information requirement subject to
the Paperwork Reduction Act (PRA) and
which has been approved by OMB
under control number 0648- 0578.
The public burden for complying with
the registration requirement is estimated
to average two minutes per individual
annual registration and three minutes
for each for-hire vessel annual
registration. Based on the current
estimate of the initial number of
potential registrants (see RIR/RFAA
discussion below), the analysis
estimates the total burden hours for
compliance with registration
requirements as 67,410 for individuals
and 120 for small entities. The
associated total labor costs are
$1,685,250 for individuals ($0.83 per
person) and $3000 for small entities ($
1.25 per for-hire vessel). The PRA
submission also states that, apart from
the labor cost associated with
submitting the information required to
register, there are no other annual
reporting and recordkeeping costs
associated with the registration
requirement.
An individual registrant would
provide name, address, date of birth,
telephone number and regions of the
country in which they fish. A for-hire
vessel registrant would provide owner
and operator (if different) name,
address, date of birth, telephone
number, vessel name and state
registration or U.S. Coast Guard
documentation number, and home port
or principal operating area.
There were three comments regarding
the PRA submission and NMFS
responds as follows:
Comment 1: The public burden hours
estimate is low. The telephone burden
is closer to 5–10 minutes. A state license
purchased at a store is about a 30
minute transaction.
Response: The comment assumes that
the burden-hour estimate includes the
burden for purchase of a license in
exempted states. However, an estimate
is required only for the burden
associated with the federal registration
process. NMFS believes the current
estimate is appropriate because it is
limited to the on-line and telephone
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22:13 Dec 29, 2008
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registration process and does not
include the time required for fee
payment at this time.
Comment 2: The registry rule adds to
the burden and complexity of federal
regulation of the marine charter boat
business. Regulatory requirements
should be simplified and streamlined.
Response: NMFS believes the registry
rule includes measures to minimize the
burden on for-hire fishing businesses.
First, passengers on licensed for-hire
vessels will not be required to register,
eliminating the burden to the vessel of
checking its customers for licenses.
Also, for-hire vessels will only need to
register with NMFS if they do not have
another federal for-hire permit or
license. Last, most states license for-hire
vessels and will seek exempted state
status for for-hire fishing vessels. NMFS
believes very few for-hire vessels would
need to comply with a federal
registration requirement under the rule.
Comment 3: Date of birth should also
be collected from registrants.
Response: NMFS agrees. Date of birth
is added to the information to be
provided by registrants. This
information will assist in confirming the
identity of individual registrants, and
will enable NMFS to differentiate
anglers within households for future
angler-based survey purposes. NMFS
does not believe this addition will affect
the burden-hours estimate.
Send comments regarding these
burden estimates or any other aspect of
this data collection, including
suggestions for reducing the burden, to
NMFS (see ADDRESSES) and by e-mail to
DavidlRostker@omb.eop.gov , or fax to
202–395–7285.
NMFS has determined that
implementation of the rule is
categorically excluded from the
requirement for a NEPA review. The
action constitutes a regulation of an
administrative and procedural nature
and will not result in direct or indirect
changes to the human environment.
The Office of Management and Budget
has determined the proposed rule to be
significant for purposes of Executive
Order 12866 (‘‘E.O. 12866’’).
The Chief Counsel for Regulation of
the Department of Commerce certified
to the Chief Counsel for Advocacy of the
Small Business Administration during
the proposed rule stage that this action
would not have a significant economic
impact on a substantial number of small
entities. The factual basis for the
certification was published in the
proposed rule and is not repeated here.
Two comments were received regarding
the certification and the factual basis for
it. NMFS responds to those comments
here:
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79717
Comment 1: Privately-owned fishing
piers are small entities that may be
affected by the rule.
Response: While they may be
indirectly affected, privately-owned
fishing pier owners/operators will not
be required to register pursuant to the
rule and there are no compliance
requirements applicable to them.
Comment 2: The commenter
challenges both the estimated revenue
and the .03% revenue ‘‘cost’’ of the $25
fee with respect to for-hire vessels and
asserts that the (up to) $25 registration
fee would actually come from the
owner’s income, not ‘‘corporate sales’’,
since most for-hire vessels are owner
operated.
Response: NMFS believes that the .03
% impact is correct given our estimate
of average annual revenue. Since NMFS
does not have financial statements or
tax returns from each individual vessel,
it cannot estimate profit margins (return
to owners) for all vessels involved. If,
for example, NMFS used a very low
assumed profit margin of 10 %, then the
$ 25 cost of the permit expressed as a
percentage of gross profits would still be
a minimal 0.30 %.
NMFS believes the basis of its
estimation of revenue is appropriate.
The above comments received did not
cause NMFS to change its determination
regarding the certification. As a result,
initial and final regulatory flexibility
analyses were not prepared.
NMFS received additional comments
regarding the economic effect of the
proposed rule that were not specifically
related to the Regulatory Flexibility Act
Analysis. Those comments are
responded to in the Comments and
Responses above.
List of Subjects in 50 CFR Part 600
Fisheries, Fishing, Fishing vessels,
Statistics.
Dated: December 22, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, NMFS adds subpart P to 50
CFR part 600 to read as follows:
■
PART 600—MAGNUSON-STEVENS
ACT PROVISIONS
Subpart P—Marine Recreational
Fisheries of the United States
Sec.
600.1400 Definitions.
600.1405 Angler registration.
600.1410 Registry process.
600.1415 Procedures for designating
exempted states-general provisions.
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600.1416 Requirements for exempted state
designation based on submission of state
license holder data.
600.1417 Requirements for exempted state
designation based on submission of
recreational survey data.
Authority: 16 U.S.C. 1881.
Subpart P—Marine Recreational
Fisheries of the United States
pwalker on PROD1PC71 with RULES
§ 600.1400
Definitions.
In addition to the definitions in the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act) and in § 600.10
of this title, the terms used in this
subpart have the following meanings.
For purposes of this subpart, if
applicable, the terms used in this
subpart supersede those used in
§ 600.10.
(a) Anadromous species means the
following:
American shad: Alosa sapidissima
Blueback herring: Alosa aestivalus
Alewife: Alosa pseudoharengus
Hickory shad: Alosa mediocris
Alabama shad: Alosa alabamae
Striped bass: Morone saxatilis
Rainbow smelt: Osmerus mordax
Atlantic salmon: Salmo salar
Chinook, or king, salmon:
Oncorhynchus tshawytscha
Coho, or silver, salmon:
Oncorhynchus kisutch
Pink salmon: Oncorhynchus
gorbuscha
Sockeye salmon: Oncorhynchus nerka
Chum salmon: Oncorhynchus keta
Steelhead: Oncorhynchus mykiss
Coastal cutthroat trout: Oncorhynchus
clarki clarki
Eulachon or candlefish: Thaleichthys
pacificus
Dolly varden: Salvelinus malma
Sheefish or inconnu: Stenodus
leucichthys
Atlantic sturgeon: Acipenser
oxyrhynchus oxyrhynchus
Shortnose sturgeon: Acipenser
brevirostrum
Gulf sturgeon: Acipenser oxyrhynchus
desotoi
White sturgeon: Acipenser
transmontanus
Green sturgeon: Acipenser medirostris
(b) Angler means a person who is
angling (see 50 CFR 600.10) in tidal
waters.
(c) Authorized officer has the same
meaning as in 50 CFR 600.10.
(d) Continental shelf fishery resources
has the same meaning as in 16 U.S.C.
1802.
(e) Exempted state means a state that
has been designated as an exempted
state by NMFS pursuant to § 600.1415.
(f) For-hire fishing vessel means a
vessel on which passengers are carried
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22:13 Dec 29, 2008
Jkt 217001
to engage in angling or spear fishing,
from whom a consideration is
contributed as a condition of such
carriage, whether directly or indirectly
flowing to the owner, charterer,
operator, agent or any other person
having an interest in the vessel.
(g) Indigenous people means persons
who are documented members of a
federally recognized tribe or Alaskan
Native Corporation or persons who
reside in the western Pacific who are
descended from the aboriginal people
indigenous to the region who conducted
commercial or subsistence fishing using
traditional fishing methods, including
angling.
(h) Spearfishing means fishing for,
attempting to fish for, catching or
attempting to catch fish in tidal waters
by any person with a spear or a
powerhead (see 50 CFR 600.10).
(i) State has the same meaning as in
16 U. S. C. 1802.
(j) Tidal waters means waters that lie
below mean high water and seaward of
the first upstream obstruction or barrier
to tidal action and that are subject to the
ebb and flow of the astronomical tides
under ordinary conditions.
§ 600.1405
Angler registration.
(a) Effective January 1, 2010, the
requirements of this section apply to
any person who does any of the
following:
(1) Engages in angling or spearfishing
for:
(i) Fish in the EEZ;
(ii) Anadromous species in any tidal
waters; or
(iii) Continental Shelf fishery
resources beyond the EEZ.
(2) Operates a for-hire fishing vessel
in the EEZ.
(3) Operates a for-hire fishing vessel
that engages in angling or spearfishing
for:
(i) Anadromous species in any tidal
waters; or
(ii) Continental shelf fishery resources
beyond the EEZ.
(4) Possesses equipment used for
angling or spearfishing and also
possesses:
(i) Fish in the EEZ;
(ii) Anadromous species in any tidal
waters; or
(iii) Continental shelf fishery
resources beyond the EEZ.
(b) No person may engage in the
activities listed in paragraph (a) of this
section unless that person:
(1) Has registered annually with
NMFS in accordance with § 600.1410 of
this part;
(2) Holds a valid fishing license
issued by, or is registered by, an
exempted state;
PO 00000
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Fmt 4700
Sfmt 4700
(3) Is a resident of an exempted state,
but is not required to hold a fishing
license, or to be registered to fish, under
the laws of that state;
(4) Holds a permit issued by NMFS
for for-hire fishing under 50 CFR
622.4(a)(1), 635.4(b), 648.4(a), or
660.70(a)(1);
(5) Is under the age of 16;
(6) Is angling aboard a for-hire fishing
vessel that is in compliance with NMFS
and state for-hire vessel permit, license
or registration requirements;
(7) Holds a commercial fishing license
or permit issued by NMFS or a state and
is lawfully fishing or in possession of
fish taken under the terms and
conditions of such license or permit;
(8) Holds an HMS Angling permit
under 50 CFR 635.4(c);
(9) Holds a subsistence fishing license
or permit issued by NMFS or a state and
is lawfully fishing or in possession of
fish taken under the terms and
conditions of such license or permit; or
(10) Is angling or spearfishing for, or
operating a for-hire fishing vessel that
engages in fishing for, anadromous
species or Continental Shelf fishery
resources, in waters under the control of
a foreign nation.
(c) Any angler or spear fisher or
operator of a for-hire vessel must, on
request of an authorized officer, produce
the NMFS registration number and
certificate or evidence that such person
or for-hire vessel operator is exempt
from the registration requirement
pursuant to § 600.1405(b)(2) through
§ 600.1405(b)(10).
§ 600.1410
Registry process.
(a) A person may register through the
NMFS web site at www.nmfs.noaa.gov
or by calling a toll-free telephone
number available by contacting NMFS
or at the NMFS website.
(b) Individuals must submit their
name; address; telephone number; date
of birth; region(s) of the country in
which they intend to fish in the
upcoming year; and additional
information necessary for the issuance
or administration of the registration.
(c) To register a for-hire fishing vessel,
the vessel owner or operator must
submit vessel owner name, address,
date of birth, and telephone number;
vessel operator (if different) name,
address, date of birth and telephone
number; vessel name; vessel’s state
registration or U.S. Coast Guard
documentation number; home port or
principal area of operation; and
additional information necessary for the
issuance or administration of the
registration.
(d) NMFS will issue a registration
number and certificate to registrants. A
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registration number and certificate will
be valid for one year from the date on
which it is issued.
(e) It shall be unlawful for any person
to submit false, inaccurate or misleading
information in connection with any
registration request.
(f) Fees. Effective January 1, 2011,
persons registering with NMFS must
pay an annual fee. The annual schedule
for such fees will be published in the
Federal Register. Indigenous people
engaging in angling or spear fishing
must register, but are not required to
pay a fee.
§ 600.1415 Procedures for designating
exempted states-general provisions.
(a) States with an exempted state
designation must:
(1) Submit state angler and for-hire
vessel license holder data to NMFS for
inclusion in a national or regional
registry database; or
(2) Participate in regional surveys of
recreational catch and effort and make
the data from those surveys available to
NMFS.
(b) Process for getting an exempted
state designation:
(1) To apply for exempted state
designation, a state must submit:
(i) A complete description of the data
it intends to submit to NMFS;
(ii) An assessment of how the data
conforms to the requirements of
§§ 600.1416 or 600. 1417;
(iii) A description of the database in
which the data exists and will be
transmitted; and
(iv) The proposed process, schedule
and frequency of submission of the data.
(2) If NMFS determines the submitted
material meets the requirements of
§§ 600.1416 or 600.1417, NMFS will
initiate negotiations with the state on a
Memorandum of Agreement. The
Memorandum of Agreement must
include the terms and conditions of the
data-sharing program. The
Memorandum of Agreement and state
designation may be limited to datasharing related to only anglers or only
for-hire fishing vessels.
(3) Following execution of a
Memorandum of Agreement, NMFS will
publish a notice of the exempted state
designation in the Federal Register.
pwalker on PROD1PC71 with RULES
§ 600.1416 Requirements for exempted
state designation based on submission of
state license holder data.
(a) A state must annually submit to
NMFS, in a format consistent with
NMFS guidelines, the name, address
and, to the extent available in the state’s
database, telephone number and date of
birth of all persons and for-hire vessels
and for-hire vessel operators who are
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22:13 Dec 29, 2008
Jkt 217001
licensed to fish, or who are registered as
fishing, in the EEZ, in the tidal waters
of the state, or for anadromous species.
The Memorandum of Agreement will
specify the timetable for a state to
compile and submit complete
information on the telephone numbers
and dates of birth for its license holders/
registrants. The waters of the state for
which such license-holder data must be
submitted will be specified in the
Memorandum of Agreement.
(b) A state is eligible to be designated
as an exempted state even if its
licensing program excludes anglers who
are:
(1) Under 16 years of age;
(2) Over age 59 (see § 600.1416(d)(1));
(3) Customers on licensed for-hire
vessels;
(4) Customers on state-licensed
fishing piers, provided that the pier
license holder provides to the state
complete angler contact information or
angler effort information for users of the
pier;
(5) On active military duty while on
furlough; or
(6) Disabled or a disabled Veteran as
defined by the state.
(c) Unless the state can demonstrate
that a given category of anglers is so
small it has no significant probability of
biasing estimates of fishing effort if
these anglers are not included in a
representative sample, a state may not
be designated as an exempted state if its
licensing program excludes anglers that
meet any of the following conditions:
(1) Fishing on a state-licensed private
vessel;
(2) Fishing from privately-owned
land;
(3) Fishing on a public pier;
(4) Fishing from shore;
(5) Fishing in tidal waters of the state;
or
(6) Fishing as an occupant of a beach
buggy, the operator of which is licensed
or permitted to operate the vehicle on
public beaches.
(d) Required enhancements to
exempted state license-holder data. An
exempted state must submit the
following angler identification data by
Jan. 1, 2012, or within two years of the
effective date of the Memorandum of
Agreement, whichever islater, and
thereafter in accordance with the
Memorandum of Agreement:
(1) Name, address and telephone
number of excluded anglers over age 59;
(2) Name, address and telephone
number, updated annually, of holders of
state lifetime and multi-year licenses;
(3) Name, address and telephone
number of state combination license
holders who fished in tidal waters in the
prior year, or who intend to fish in tidal
PO 00000
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Fmt 4700
Sfmt 4700
79719
waters. The Memorandum of Agreement
will define the boundaries of the state’s
tidal waters for this purpose.
§ 600.1417 Requirements for exempted
state designation based on submission of
recreational survey data.
(a) To be designated as an exempted
state based on the state’s participation
in a regional survey of marine and
anadromous recreational fishing catch
and effort, a state may submit to NMFS
a proposal that fully describes the state’s
participation in a qualifying regional
survey, and the survey’s sample design,
data collection and availability.
(b) A qualifying regional survey must:
(1) Include all of the states within
each region as follows:
(i) Maine, New Hampshire,
Massachusetts, Rhode Island,
Connecticut, New York, New Jersey,
Pennsylvania, Delaware, Maryland,
Virginia, North Carolina, South
Carolina, Georgia and Florida (Atlantic
coast);
(ii) Florida (Gulf of Mexico coast),
Alabama, Mississippi, Louisiana, and
Texas;
(iii) Puerto Rico and the U. S. Virgin
Islands;
(iv) California, Oregon and
Washington;
(v) Alaska;
(vi) Hawaii; or
(vii) American Samoa, Guam and the
Commonwealth of the Northern Mariana
Islands.
(2) Utilize angler registry data, or
direct field counts to obtain angler
effort, or other appropriate statistical
means to obtain fishing effort;
(3) Utilize angler registry data to
identify individuals to be surveyed by
telephone, if such regional survey
includes a telephone survey component;
and
(4) Meet NMFS survey design and
data collection standards.
[FR Doc. E8–31021 Filed 12–29–08; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 061228342–7068–02]
RIN 0648–XM38
Fisheries of the Northeastern United
States; Atlantic Herring Fishery; Total
Allowable Catch Harvested for
Management Area 1B
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
E:\FR\FM\30DER1.SGM
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Agencies
[Federal Register Volume 73, Number 250 (Tuesday, December 30, 2008)]
[Rules and Regulations]
[Pages 79705-79719]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-31021]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 071001548-81392-02]
RIN 0648-AW10
Marine Recreational Fisheries of the United States; National
Saltwater Angler Registry Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this final rule to adopt regulations to implement
the Magnuson-Stevens Fishery Conservation and Management Act (MSA).The
regulations establish a national registry of recreational anglers
fishing in the Exclusive Economic Zone (EEZ), for anadromous species in
tidal waters or for Continental Shelf fishery resources beyond the EEZ.
Persons will not be required to register with NMFS if they are licensed
by a state that provides data determined to be sufficient for the
agency's needs. The requirement is intended to improve existing angling
effort surveys in order to improve their efficiency, to reduce possible
sources of bias and to improve confidence in survey results by anglers
and fishery managers.
DATES: This final rule is effective January 29, 2009, except for the
amendments to Sec. 600.1405 which are effective January 1, 2010.
ADDRESSES: Copies of the Regulatory Impact Review/Regulatory
Flexibility Act Analysis are available from: Gordon Colvin, Office of
Science and Technology, National Marine Fisheries Service, 1315 East
West Highway, Silver Spring, MD 20910. Background information and
documents are available at the NMFS Office of Science and Technology
website at https://www.st.nmfs.noaa.gov/mrip/
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to NMFS Office of Science and Technology
and by e-mail to David_Rostker@omb.eop.gov, or fax to (202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Gordon Colvin, phone: 301-713-2367;
fax: 301-713-1875; or e-mail: gordon.colvin@noaa.gov.
SUPPLEMENTARY INFORMATION:
Electronic Access
This final rule is accessible via the Internet at the Office of the
Federal Register's Web site at https://www.access.gpo.gov/su_docs/.
Background
In 2004, NMFS contracted with the National Research Council (NRC)
of the National Academy of Sciences to review the current marine
recreational fishery survey methods used by NMFS and its partners to
monitor fishing effort and catch. NMFS asked the NRC to: (1) assess
current survey methods for their suitability in monitoring fishing
effort and catch in the shoreline, private boat, and for-hire boat
recreational fisheries; (2) assess the adequacy of the methods for
providing the quality of information needed to support accurate stock
assessments and responsible fisheries management decisions; and (3)
make recommendations for possible methodological improvements that
would ensure more accurate and precise estimates of recreational effort
and catch.
The NRC's Ocean Studies Board formed a 10-member committee to
conduct the requested review, held a series of five public meetings in
2005 to gather information about the current survey programs in each
region, and
[[Page 79706]]
published a final report in April 2006 [https://fermat.nap.edu/catalog/
11616.html]. The NRC report identified a number of potential problems
with the sampling and estimation designs employed in the current
surveys and questioned the adequacy of the existing surveys in
providing the statistics needed to support accurate stock assessments
and appropriate fishery management decisions. The report recommended
that current surveys be redesigned to improve their effectiveness, the
appropriateness of their sampling procedures, their applicability to
various kinds of management decisions, and their usefulness for social
and economic analyses. The NRC review deferred to NMFS to develop a
process to determine the highest priority changes given the costs and
benefits of any specific improvement. In response, NMFS established the
Marine Recreational Information Program (``MRIP'') to further study and
evaluate the many recommendations in the NRC review, and to design and
implement the necessary changes and improvements to the system of
regional surveys of marine recreational fishing in the nation's coastal
states. More information on this program is available at:
www.countmyfish.noaa.gov.
As part of MRIP, NMFS is establishing the National Saltwater Angler
Registry Program (``Registry Program'') to implement certain
recommendations of the NRC review. Among its findings, the NRC review
found that current recreational survey approaches, which rely on random
telephone contacts with residents of coastal county households to
collect marine recreational fishing effort data, result in significant
survey over-coverage since relatively few households include active
anglers, and under-coverage since some anglers do not live in coastal
counties or they live in coastal counties but do not have landline
telephones. The review advised that over-coverage results in severe
sampling inefficiency, and that under-coverage may lead to serious bias
in the resultant effort estimates since anglers from non-coastal
counties are likely to have different effort characteristics than those
from coastal counties. To resolve these problems, the NRC Panel
recommended the development of and subsequent sampling from a
comprehensive national saltwater angler registry. The panel further
recommended that the registry be established either by implementing a
federal registration requirement or by expanding current state
saltwater licenses to include all saltwater anglers.
Partially in response to the NRC Panel's findings and
recommendations, Congress passed section 401(g) of the MSA, which
requires the Secretary of Commerce to establish a program to improve
the quality and accuracy of current estimates of marine recreational
fishing catch and effort by January 1, 2009, in a manner that considers
and, to the extent feasible, incorporates the NRC Panel's
recommendations. As part of the program, section 401(g)(1) of the MSA
requires the Secretary to register, and collect identification and
contact information for, anglers and for-hire vessels if they fish in
the EEZ, for Continental Shelf fishery resources beyond the EEZ or for
anadromous species. Further, the Secretary is to exclude from the
federal registration requirement those anglers and vessels that are
licensed or registered by a state if the Secretary determines that
information from the state program is suitable for the Secretary's use
or is used to assist in completing marine recreational fisheries
statistical surveys, or evaluating the effects of proposed conservation
and management measures for marine recreational fisheries. The
resultant federal Registry must address both the qualifications and
procedures for registering anglers and vessels and for excluding
qualified states' anglers and vessels from the federal registration
requirement.
The program must also recognize and balance two important
provisions of the NRC recommendations and the provisions of section
401(g) of the MSA. First, the NRC Panel advised that a universal
registry or license-based list of all saltwater anglers, without
exceptions to state or federal registration requirements, is essential.
Second, the federal registration requirements of section 401(g) of the
MSA apply to saltwater anglers fishing in state waters (territorial sea
or internal waters) when they are fishing for anadromous fish.
Therefore, some salt water anglers fishing in state waters would not be
required to register under this section, although they may be subject
to permitting and other requirements under other sections of the MSA.
Accordingly, it is necessary for states and NMFS to work in
collaboration to build registries of saltwater anglers that include
anglers currently excepted from, or not covered by, state license or
registration requirements and that also include anglers who are fishing
for non-anadromous marine fish in state waters.
The final rule was developed consistent with the foregoing program
requirements. It is intended to facilitate the development of a
national registry or database of identification and contact information
for recreational anglers and for-hire fishing vessels that engage in
angling and spearfishing for marine and anadromous fish. The registry
data will be compiled in a series of regional directories to be used to
support surveys of anglers and vessel operators to determine their
angling effort and related data, as recommended by the NRC Panel and as
required by section 401(g)(1) of the MSA.
The final rule requires persons who are angling, spear fishing, in
possession of angling or spearfishing equipment or operating a vessel
that carries recreational fishing passengers for-hire in the EEZ, or
who are angling, spear fishing or operating a vessel that carries
recreational fishing passengers for-hire for anadromous species in
tidal waters, to register annually with NMFS. The registration
requirement is effective January 1, 2010. Section 401(g) of the MSA
provides that the Secretary may not charge a fee for anglers or vessels
to register with NMFS until January 1, 2011. The rule implements a
registration fee to be specified at the time of implementation,
currently estimated to be in the range of $15 to $25 per year,
beginning in calendar year 2011.
Anglers and for-hire vessel operators are not required to register
annually if they hold a license issued by, or are registered by, a
state which has been designated as an exempted state as described
below. Persons who hold a state or federal commercial fishing license
or permit or a license or permit to engage in a subsistence fishery,
and who are lawfully fishing or in possession of fish pursuant to such
license or permit, are not required to register; however, holders of
commercial or subsistence licenses or permits who are angling or spear
fishing recreationally, outside the terms and conditions of the
commercial or subsistence license or permit, are required to register.
Anglers under the age of 16 are not required to register, although they
could register voluntarily, at no cost. This, in part, is due to the
practical difficulty of conducting telephone surveys of, and of
enforcing a registration requirement for, minors. Furthermore, in most
cases, adult anglers reside in households in which minor anglers
reside; such adults will need to register and, if contacted by surveys,
will be able to provide the angling effort information for minors
residing in the same household. Anglers fishing on licensed or
registered for-hire fishing vessels are also not required to register
with NMFS.
The fee for registering is waived for non-commercial angling or
spear fishing by indigenous people, but the
[[Page 79707]]
requirement to register is not. The fee waiver recognizes that, for
many indigenous people, fishing is motivated primarily by a desire to
gather food for family or community use and/or for cultural reasons.
Although it is necessary to register indigenous fishers in order to
assure that the registration requirement is enforceable and to ensure
complete data collection, it is appropriate to waive the registration
fee in consideration of the cultural nature of non-commercial fishing
by many indigenous people.
The final rule also establishes the procedures and guidelines by
which states may be designated as exempted states. A state may apply
for designation by submitting a proposal that addresses the
requirements as noted below. A Memorandum of Agreement (``MOA'')
between NMFS and each state will be executed to establish the terms of
designation. States will be eligible to be designated as exempted
states in two ways: (1) by submitting state angler and for-hire vessel
license holder data to NMFS for inclusion in a national or regional
registry database; or (2) by participating in regional surveys of
recreational catch and effort and making the resultant data available
to NMFS. The regulations for exempted state designation are designed to
assure that the license holder data submitted by states includes all
anglers and for-hire vessels necessary to meet survey requirements.
Comments and Responses
On June 12, 2008, NMFS published a notice of the proposed rule (73
FR 33381). The initial public comment period ended on August 11, 2008,
and was extended to August 21, 2008 (73 FR 46579). NMFS received
comments from 444 entities, including individuals, 18 states and
interstate organizations, 3 Fishery Management Councils and non-
governmental organizations representing both marine recreational
fishing and marine conservation interests. One petition was received
that was signed by 869 individuals. When possible, the concepts relayed
in the comments have been consolidated and responded to in turn. The
comments and responses have been grouped under subject headings for
ease of review.
Comments that Express General Opposition or Support for the Proposed
Rule
Comment 1: A number of comments oppose registration or licensing as
an unwelcome imposition on unrestricted access to marine fisheries, an
unnecessary burden on anglers, or an unwelcome federal government
intrusion in people's lives.
Response: Registration is mandated by Sec. 401(g) of the MSA. NMFS
is required to implement this requirement consistent with the law.
NMFS notes that, in 17 of 25 states with marine and/or anadromous
fisheries, state fishing licenses are currently required for some or
all fishing for saltwater and anadromous fish.
NMFS believes that the prospective burden on anglers to comply with
the federal registration requirement can be minimized if anglers are
licensed or registered by the states and the states seek designation as
exempted states as provided in the rule, and agree to submit their data
to the national registry. Anglers who hold licenses or registrations
from exempted states are not required to register with NMFS.
Comment 2: Commercial fishing is not adequately regulated and is
responsible for fishery stock conditions, rather than recreational
fishing. It is not necessary to regulate recreational fishing because
recreational fishers catch too few fish to affect marine fish
populations.
Response: Although the catch of individual anglers may seem minor,
perhaps insignificant, in the context of large commercial fisheries,
the collective catch of all marine anglers is potentially large and
very significant for many fisheries. In 2006, over 15 million saltwater
anglers in the U.S. made almost 100 million fishing trips. This
collective level of fishing effort results in a significant proportion
of harvest for many species. For example, in 2006, recreational anglers
landed the following proportions of these species:
Striped bass: 82%
Bluefish: 71%
Summer flounder: 46%
Dolphin fish: 94%
Atlantic croaker: 32%
King mackerel: 57%
Sheepshead: 82%
Black drum: 49%
Spanish mackerel: 43%
Tautog: 92%
Red snapper: 42%
Scup: 24%
Black sea bass: 46%
Groupers: 36%
Black rockfish: 83%
Lingcod (not including Alaska): 66%
Blue rockfish: 94%
Yellowtail: 94%
California halibut: 38%
The NRC panel determined that recreational fishing is significant,
noting in its first general conclusion,``...marine recreational fishing
is a significant source of fishing mortality for many marine species
and that adequate scientific information on the nature of that
mortality in time and space is required for successful management of
those species.''
Both commercial and recreational fisheries are managed under the
MSA. Commercial fishing in the US EEZ is subject to extensive
permitting, reporting and regulatory requirements necessary to
implement Fishery Management Plans adopted under the MSA, and to comply
with the provisions of the MSA and other applicable law.
Comment 3: Comment opposes federal involvement in data collection,
management and enforcement of salmon fisheries in Alaska.
Response: The rule will not change the management jurisdiction of
salmon in Alaska.
Comment 4: The U.S. Fish and Wildlife Service, not NOAA, should
carry out this program.
Response: The MSA mandates that the MRIP and the federal angler
registry be implemented by the U. S. Department of Commerce, within
which NMFS is located.
Comment 5: The registration requirement will cause people to choose
not to fish. This will result in adverse impact to fishing businesses.
Response: The registration requirement and/or the fee requirement,
when it becomes effective, may cause some persons to decide not to
fish. NMFS evaluated this impact in the Regulatory Impact Review/
Regulatory Flexibility Act Analysis (RIR/RFAA) prepared for this rule,
and concluded that there is no empirical information available to
determine how the regulation will affect angler behavior. The RIR/RFAA
includes an estimate of a range of possible reduction of angler
expenditures. The RIR/RFAA also concluded that expenditures not made
for recreational angling are likely to be spent on some other
recreational activity. Therefore it is not expected that a loss in
angler expenditures will affect the economy at a national or state
level.
Comment 6: The registry rule adds to the burden and complexity of
federal regulation of the marine charter boat business. Regulatory
requirements should be simplified and streamlined.
Response: NMFS believes the registry rule includes measures to
minimize the burden on for-hire fishing businesses. First, passengers
on licensed for-hire vessels will not be required to register,
eliminating the burden to the vessel of checking its customers for
registration or licenses. Also, for-hire vessels will only need to
register federally if they do not have another federal for-hire permit
or license. Last, most states license for-
[[Page 79708]]
hire vessels and will seek exempted state status for for-hire fishing
vessels. NMFS believes very few for-hire vessels would need to comply
with a federal registration requirement under the rule.
Comment 7: The imposition of the registration requirement and of
the registration fee may anger anglers and cause them to fail to
cooperate with surveys when contacted, or to report inaccurately.
Response: NMFS believes that the vast majority of anglers will
understand that it is in the best interest of sport fisheries to have
complete and accurate data. NMFS and its partners will implement angler
outreach and education programs to communicate this message.
Comment 8: A number of comments generally support the provisions of
the proposed rule.
Response: NMFS acknowledges these comments.
Comments Related to Proposed Registration Fees and State License Fees
Comment 9: A number of comments expressed opposition to the
registration fees proposed to be adopted in 2011.
Response: The registration fee requirement is consistent with NOAA
policy and with the provisions of the MSA and other NMFS permits and
registrations. Section 401(g)(1) of the MSA expressly authorizes
charging a fee for registration beginning in 2011. A registry fee also
establishes an incentive for states to take necessary action to be
designated as exempted states. Complete angler registries, as
recommended by the NRC Panel, can be developed only if the states
license or register all of the anglers, since NMFS cannot require all
anglers fishing in state waters to register.
Comment 10: If a registration fee is charged, fee revenue should be
dedicated to marine fishery conservation.
Response: Current federal law does not authorize registration fees
collected under Sec. 401(g) of the MSA to be dedicated to marine fish
conservation. Any fees collected would be deposited in the U.S.
Treasury.
NMFS notes that, while the registration fee revenue cannot be
deposited in a separate, dedicated account, revenue from the fees is to
be equal to the cost of administering the registry program. The funding
for that program administration is derived from appropriations from the
general treasury, that is, the same overall fund to which registry fees
will be deposited.
Comment 11: The estimated fee of $15 to $25 is too high. NMFS
should analyze the cost to administer the program, and the fee should
not exceed the cost of administering registrations.
Response: The rule does not set the registration fee. Under NMFS
policy, the fee will be determined annually, beginning in 2010 for the
2011 registration year, based on the assessed cost of administering the
registration program. Costs to be included are the costs of: operating
and maintaining toll-free telephone service and the web-based
registration portal and associated help desk and related services;
printing and mailing registration certificates; managing the registry
program; maintaining the registry database; conducting outreach efforts
to make anglers aware of registration requirements. The actual fee will
be based on an annual assessment of these and any other registry-
related costs, and will not exceed the cost of actually administering
the program.
For purposes of providing information to the affected public and
for complying with applicable law, the proposed rule included a
conservatively high estimate of the annual registration fee based on
current estimates of implementation costs and number of anglers to be
registered. If actual costs and number of registrants is significantly
different than current estimates, the fee will be different than stated
in the proposed rule. Because conservative estimates were used, it is
unlikely that the actual fee will be higher than the $15 to $25
estimate in the proposed rule. It is noted that this estimate is lower
than the fee currently assessed for the HMS angling permits (50 CFR
635.4(c)), a transaction similar to a recreational registration.
Comment 12: Registration fees should be waived or reduced for:
senior anglers; disabled persons; active-duty military; indigent
persons; shore anglers.
Response: NMFS notes that many states provide for free or reduced-
fee licenses for anglers in these or similar categories. However, the
state license fees generate positive net revenue to support state
conservation programs, whereas the federal registration fee will be set
at the amount sufficient to generate revenue equivalent to the cost of
administering the registration program. The final rule does not provide
for reduced or free registrations for additional categories of anglers.
Comment 13: Comments oppose the proposed registration fee waiver
for indigenous people.
Response: NMFS will retain the fee waiver for indigenous people for
the reasons stated in the background section above.
Comment 14: How will indigenous people provide proof of their
eligibility for a fee waiver? The proposed definition is not sufficient
for this purpose.
Response: When registering, people will provide information that
documents why they are ``indigenous people'' as defined in the final
rule, and affirm that the information they have provided is accurate.
Comment 15: NMFS should provide a reduced fee or free registration
for those categories of anglers that receive reduced fee or free
licenses in a specific state.
Response: Anglers who are licensed by exempted states will not be
required to register with NMFS and will not have to pay a federal
registration fee.
For anglers who are not licensed by exempted states, NMFS must
apply consistent fee provisions to residents of all states, regardless
of individual state license fee requirements. See Response 12 regarding
consideration of reduced fees for certain categories of registrants.
Comment 16: Fees should be used only to support specified actions
to improve recreational fishing, including stocking of fish, improving
fishing access, developingartificial reefs, and law enforcement.
Response: Federal registry fees will be deposited in the general
treasury. NMFS does not have the legal authority to set these funds
aside for the uses cited in the comments.
Comment 17: NMFS should use fee waivers or reduced fees as an
incentive to complete and accurate reporting.
Response: It is not possible to build this suggestion into the
final rule. For example, NMFS will not immediately be able to determine
how complete and accurate a person's reports are. However, the use of
incentives to promote complete and accurate reporting is an innovative
suggestion that will be conveyed to the MRIP Operations Team for
consideration in future survey design and development.
Comment 18: Whether the revenue is collected by the state or the
federal government, a panel of anglers should have a voice in
determining how the revenue is used.
Response: NMFS is required to deposit registration fee revenue in
the general treasury and can not utilize the revenue for programs that
benefit sport fisheries.
Comments Related to Exceptions to the Federal Registration Requirement
Comment 19: Persons who hold HMS angling permits under 50 CFR
635.4(c) should not be required to register with NMFS because NMFS
already has contact information for these individuals.
[[Page 79709]]
Response: NMFS agrees. Under the final rule these individuals are
not required to register with NMFS. This exception applies only to the
individual named on the HMS permit, and does not apply to other anglers
fishing on the permit holder's vessel. Any such persons must comply
with the registration requirements, unless they are otherwise not
required to register with NMFS.
Comment 20: NMFS should accept a state's or all states' license
database(s) andnot require federal registration in the state(s). NMFS
could also institute a program similar to the Harvest Information
Program (``HIP''), in which states issue registration numbers to
holders of state hunting licenses and provide the registration
information to the U.S. Fish and Wildlife Service for surveys of
migratory bird hunters.
Response: NMFS agrees that the most effective, complete and
convenient way to create a national registry would be to utilize
complete lists of licensees or registrants (including registration
lists equivalent to the HIP information) from states, and intends to do
so wherever possible, consistent with the requirements of the MSA and
the NRC Panel recommendations. To that end, NMFS has included the state
exemption process in the rule.
NMFS cannot comply with the MSA if it exempts a state that has
major exceptions to its license requirements, however. Sec. 401(g)(3)
of the MSA requires NMFS to implement a program to improve recreational
survey data that includes, to the extent feasible, implementing the
recommendations of the NRC Panel. The Panel repeatedly recommended that
all anglers, without exception, be included in the contact list for
future telephone surveys. Accepting a state license or registry list
that excludes a significant category of anglers would not be consistent
with the NRC Panel's advice and, hence, would not comply with the MSA.
Comment 21: NMFS should amend Sec. 600.1405(a)(4)(i) to provide a
``transit exemption'' for anglers who transit the EEZ to fish in state
waters adjacent to offshore islands.
Response: If persons who are transiting the EEZ between state
waters and offshore islands are not required to register, the
enforcement of the federal registration requirement in the EEZ will be
significantly impaired. Accordingly, the final rule does not provide
for a transit exemption.
Comment 22: Exceptions to the federal registration requirement are
inconsistent with the NRC recommendations and may create a ``multi-
class'' system.
Response: NMFS believes that the exceptions to the federal
registration requirement in the rule (youth under age 16; licensed
commercial or subsistence fishers; persons fishing aboard licensed for-
hire vessels; persons licensed or not required to be licensed by
exempted states) are consistent with the NRC recommendations. Exempted
state license programs may exclude persons: under age 16; fishing on a
licensed for-hire vessel or fishing pier; who are disabled; who are
active military while on leave. NMFS does not agree that these
exceptions are inconsistent with the NRC recommendations, nor does NMFS
agree that these exceptions are class-based.
Comment 23: The state has a disproportionately high number of
military and seniors who fish and will not be required to register with
NMFS. How will this fishing effort be measured?
Response: The rule requires seniors and military personnel to
register with NMFS, unless they are license holders/registrants of an
exempted state or are residents of an exempted state that are not
required to be licensed or registered by that state, or are otherwise
exempt per the provisions of Sec. 600.1405(b). There are no specific
exceptions to the registration requirements in Sec. 600.1405(b) for
seniors or military personnel.
Comment 24: The state has a high proportion of minorities. If the
state is not designated as an exempted state, the federal registration
requirement may disproportionately affect minorities.
Response: Within a state, the effect of the federal registration
requirement is proportionately the same for minority and non-minority
groups. For the nation as a whole, the impact may be slightly different
dependent on the ethnic makeup of the anglers in the non-exempt as
compared to the exempt states. NMFS does not believe this effect will
be significant, and emphasizes that there is no intent to
disproportionately affect minorities. NMFS also notes that states must
decide whether to qualify for, and to seek, exempted state status.
Comment 25: There should be no exceptions to the registration
requirement.
Response: The rule includes four principal exceptions to the
requirement to register with NMFS: (1) persons who are licensed or
registered by an exempted state or who are not required to hold a
license in such state; (2) persons who are fishing aboard a licensed
for-hire fishing vessel; (3) persons under the age of 16; (4) persons
who are fishing pursuant to a commercial or subsistence fishery license
or permit. The first exception is specifically provided for in Sec.
401(g) (2) of the MSA. As recommended by the NRC Panel, in the future
for-hire fisheries will be accounted for separately from private boat
and shore fishing modes. Therefore, it is not necessary to register
anglers who only fish on for-hire vessels, as their effort will be
accounted for in the separate for-hire surveys. The background section
above explains the basis for exempting anglers under age 16. NMFS will
develop a program for seeking voluntary registration of these anglers.
Licensed commercial and subsistence fishers report their catches
separately from recreational surveys, and it is appropriate to avoid
duplication of that catch reporting or confusion of the two sectors'
catch for future management and allocation decisions.
Comment 26: Youth under age 18, not 16, should not have to
register.
Response: Age 16 was selected because it is the most common age at
which a person must first obtain a fishing license in states that have
saltwater licenses.
Comment 27: Occasional or vacation anglers should not be required
to register with NMFS.
Response: If anglers who fish infrequently are not included in the
database from which the survey is conducted, it is likely that the
resultant estimates of angling effort will be biased upward. The NRC
panel emphasized the need to have a complete and unbiased registry of
anglers.
Comment 28: Certain categories of fishermen who fish mainly for
subsistence should not be required to register with NMFS.
Response: NMFS will not require subsistence anglers and spear
fishers who are enrolled or permitted in a state or federal subsistence
fishery program to register. Limiting subsistence exceptions to such
enrollees assures that the individuals and their catch is accounted
for, and also assures that the registration requirement is fully
enforceable.
Comments that Address Survey Design and Management Issues and that
Advocate Alternative Survey Approaches
Comment 29: NMFS should not implement a registry. NMFS should
utilize other methods to obtain the necessary data rather than a
registry-based telephone survey.
Response: NMFS is committed, and required under Sec. 401 of the
MSA, to implement survey changes that, to the extent feasible, follow
the recommendations of the NRC panel. The process that has been
established for the
[[Page 79710]]
Marine Recreational Information Program (MRIP) will ensure
comprehensive evaluation of the NRC Panel recommendations, and final
decisions on survey design and sampling methods to be used in the
various regional surveys will be based on the outcome of that
evaluation and the best scientific advice available. While it is
possible that household telephone surveys may not be utilized in all
future surveys, NMFS believes that it is likely that such surveys will
continue to play an important role in the future surveys for at least
some regions of the country.
Comment 30: NMFS should use data provided voluntarily by anglers
rather than survey-based data.
Response: The MRIP will examine use of angler-provided data for
various purposes. However, it is necessary to have a complete and
unbiased accounting of all angler catch and effort to meet the
requirements of the MSA and other applicable law. Use of only that data
that is provided voluntarily by those anglers who choose to provide it
would likely introduce considerable bias into the basic estimates of
angler effort and catch.
Comment 31: A number of comments, including 869 signers of a
petition, stated that, since NMFS is only concerned with fisheries in
the EEZ, NMFSshould register vessels, not anglers, in those areas that
have no anadromous fisheries.
Response: NMFS is required by Sec. 401(g)(3) of the MSA to
implement a program to improve recreational survey data that includes,
to the extent feasible, implementing the recommendations of the NRC
Panel. The Panel repeatedly recommended that all anglers, without
exception, be included in the contact list for future telephone
surveys. The NRC recommendations also call on NMFS to build a system of
regional surveys that account for all saltwater fishing, not just
fishing in the EEZ. A vessel registry will not account for shore
fishing modes.
Vessel registries that obtain fishing effort (and catch)
information only from the licensed or registered vessel owner may fail
to collect complete information on the fishing catch and effort of the
non-licensed persons fishing on a registered vessel. To the extent that
such data is not completely collected for all passengers on registered
vessels, the resultant survey data will be subject to bias. Vessel
registries or vessel-based surveys may be a part of a comprehensive
regional survey program that collects effort information in a variety
of ways and includes measures to assure that the necessary data are
collected from all anglers, so that the estimates are not biased.
Comment 32: State vessel registration and beach buggy registration
or permit lists should be used as the sample list for surveys rather
than an angler registry.
Response: Use of state vessel registration lists is subject to the
limitations cited in the response to the previous comment. Adding beach
buggy permit holder lists will only add a fraction of the shore-based
anglers to the list, and will still provide an incomplete list of
shore-based anglers. Further, surveying only the holders of beach buggy
permits excludes the non-permitted passengers in these vehicles,
introducing potential bias to the survey results.
Comment 33: The geographic coverage of current angler intercept
surveys may be different than the area of tidal waters in which anglers
would be required to register in order to create a database for
telephone surveys. To prevent a mismatch in intercept vs. telephone
coverage, NMFS should either expand intercepts to all tidal waters or
confine registration requirements to marine waters in which intercepts
are conducted.
Response: NMFS acknowledges the comment. Final decisions on the
geographic scope of all regional intercept surveys have not been made.
Some partners have suggested that coverage should be expanded to
include all fishing for anadromous fish in non-tidal fresh waters, as
well as all tidal waters. Others have recommended limiting coverage to
saline and brackish waters. In order to provide for effective
enforcement of the registry rule, while providing reasonable coverage
of marine and estuarine waters in which angling for anadromous species
occurs, NMFS has chosen to require registration for angling for
anadromous species in all tidal waters.
Comment 34: The registration requirement may result in mis-
reporting of fishing location.
Response: NMFS acknowledges that persons who fish in the EEZ, but
who have not registered, may mis-report their fishing location when
surveyed.
Comment 35: The registry program may result in over-coverage. This
may result in part from mixing registration data from a limited federal
registrant list in some states with more complete lists from states
with combination licenses.
Response: NMFS does not believe the registry program will result in
over-coverage. The registry is a means of reducing, not increasing,
over-coverage. The over-coverage that results from current random-
digit-dialing of coastal county households will decrease over time as
NMFS and its partners develop more complete regional registry-based
surveys.
NMFS also notes that exempted states with combination licenses will
be required to identify the salt water anglers within these lists
within two years (see Sec. 600.1416(d)(3). This provision will further
reduce the potential for over-coverage.
Comment 36: Surveys being conducted by the state (CA, AK, FL, ME et
al.) are sufficient. NMFS should utilize the state's survey data.
Response: NMFS will use the data provided by state surveys that are
part of an approved regional survey pursuant to Sec. 600.1417. Anglers
in such states will not be required to register with NMFS.
Comment 37: A number of comments addressed survey design and
operational issues, including angler outreach and education needs,
asking persons contacted in the telephone survey to provide catch as
well as effort information, methods to facilitate the conduct of
telephone surveys et al.
Response: The design and implementation of surveys is beyond the
scope of the rule. NMFS appreciates the comments and will provide them
to the MRIP Operations Team for its consideration in developing the
future recreational fishing survey design.
Comment 38: The commenter prefers a program that provides for
accurate, complete and verifiable documentation of all removals from
the stock.
Response: A program of this nature, while ideal, would require a
complete census and documentation of the nearly 100 million angler
trips made annually. Such an effort is far beyond the capacity of NMFS
and its partners, and is not a cost effective approach to determining
marine recreational catch and effort.
Comment 39: For-hire data should be obtained separately and
retained separately from other modes.
Response: MRIP will determine the survey design for future for-hire
surveys. Consistent with the NRC Panel's recommendations, it is
expected that for-hire surveys and estimates will be separate from
those for other modes of fishing.
Comments on the Proposed Requirements for Designating Exempted States
Based on Submission of State License-Holder Data
Comment 40: NMFS is authorized in Sec. 401(g)(1) of the MSA to
require federal registration of anglers only in the EEZ or, in state
waters, only if they are fishing for anadromous species. NMFS should
clarify the basis for the rule's
[[Page 79711]]
provisions that require states to license or register all anglers
fishing in state waters, including those who fish only from shore, in
order to qualify for exempted state status.
Response: Consistent with the provisions of MSA Sec. 401(g)(3) and
the NRC Panel recommendations, NMFS intends to implement a series of
regional surveys that comprehensively account for saltwater
recreational fish catch and effort in all fishing modes and areas and
which utilize angler registries that include all anglers, without
significant exceptions or exemptions. If, contrary to the NRC Panel's
advice, NMFS made use of incomplete registries or state license lists
that excluded major categories of anglers, such as all anglers that
fish from shore, the resultant survey estimates of catch and effort
would likely be biased.
Comment 41: Section 600.1416(c) forces a state to prove a negative.
Response: States can affirmatively demonstrate that exclusion of
certain angler groups from a license-based survey contact list will
result in a level of statistical variation that is statistically
insignificant.
Comment 42: There is a need for the rule to address states' free
fishing days.
Response: Persons who are fishing without a license in exempted
states during the state's ``free fishing days'', are not required to
hold a state license and are therefore not required to register with
NMFS pursuant to Sec. 600.1405(b)(3).
Comment 43: NMFS should clarify whether states can be exempted
separately for anglers and for-hire vessels.
Response: Section 600.1415(b)(2) provides for states to submit
license-holder data, and be exempted, for either individual anglers or
for-hire vessels.
Comment 44: Providing information on the regions of the country in
which a state-licensed angler fishes is problematic. States do not get
this kind of information from license applicants.
Response: States are not required to provide this kind of data to
be designated as exempted states.
Comment 45: The state does not get telephone numbers for all
licensees. If required by Sec. 600.1416(a), states may not qualify for
exempted state status.
Response: The final rule provides that states will qualify for
exempted state designation if they provide names and addresses of
licensees/registrants and agree via the MOA to assist NOAA in
developing databases that include telephone numbers and date of birth
for their licensees/registrants.
Comment 46: How would exempted states get information on seniors
who are not required to hold state licenses?
Response: States may choose to register or offer free or low cost
licenses to seniors.
Comment 47: The state licenses guides, not their vessels.
Notwithstanding, the state is able to fully participate in the ongoing
For-Hire survey. Accordingly, the requirements of vessel identification
information in Sec. 600.1416(a) should not disqualify the state for
designation as an exempted state for its for-hire fishing vessels.
Response: NMFS agrees. So long as a state can provide necessary
contact information for all for-hire fishing operations in the state,
it will qualify for exempted state status for the for-hire fishery. The
language of Sec. 600.1416(a) does not preclude such designation.
Comment 48: NMFS should review the data elements to be required
from states to assure they are necessary.
Response: NMFS believes the data elements specified in the final
rule are necessary.
Comment 49: Clarification is needed regarding the acceptability of
lifetime licenses, military personnel exceptions and interstate license
reciprocity in order for a state to be exempted.
Responses: States that issue lifetime licenses can qualify for
exempted state status. These states must agree to refresh the address
and telephone data for the lifetime license holders within two years of
their designation. See Sec. 600.1416(d)(2).
States that do not require active-duty military personnel to hold
state licenses while on furlough will qualify for exempted state
status. There are no other provisions related to military personnel in
the rule. See Sec. 600.1416(b)(5).
The rule does not preclude designation of a state as an exempt
state if it has a license reciprocity agreement with another state.
Comment 50: The rule states that NMFS ``may'' allow an exception to
the federal registration requirement for anglers from specified states.
There should be more certainty.
Response: NMFS will not require anglers to register when they are
licensed or registered by a state that meets the requirements for
exempted state designation. NMFS believes the provisions of Sec.
600.1405(b)(2) are clear in this regard.
Comment 51: NMFS should not exempt states based on state fishing
licenses. States will not use license revenue to benefit fisheries.
Response: Section 401(g)(2) of the MSA provides that NMFS is not to
require anglers to register if they are licensed or registered by
states which provide sufficient data to NMFS.
Comments on the Proposed Requirements for Designating Exempted States
Based on Participation in Regional Surveys of Recreational Catch and
Effort
Comment 52: The Western Pacific should be divided into at least two
regions for purposes of consideration of regional survey-based exempted
state designations, one for the Hawaiian archipelago and one for the
western Pacific island territories and Commonwealths.
Response: NMFS agrees. The western Pacific is vast and the
fisheries in the various island archipelagos are sufficiently different
to designate two regions. At present, separate surveys are used to
estimate non-commercial fishing catch in Hawaii and in the western
Pacific U.S. territories and Commonwealths. These surveys are likely to
remain separate and independent of each other under MRIP. The final
rule has been modified to establish two separate regions, one for the
state of Hawaii and one for the U.S. territories and Commonwealths in
the western Pacific.
Comment 53: NMFS should revise the text in Sec. 600.1417(b) to
allow for effort data collection methods other than use of registries.
Response: NMFS agrees that, for approved regional surveys, methods
for collecting angler effort data other than registry-based telephone
surveys may be appropriate and conform to acceptable survey standards
and practices. The intent of this provision in the proposed rule was to
ensure that, where telephone surveys are part of regional survey
designs, they utilize complete license-based registries rather than
telephone directory-based lists of persons to be surveyed. The final
rule has been modified to clarify this intent and to incorporate the
comment.
Comment 54: Section 600.1417 should provide that a state exempted
via the regional survey method will not be required to submit registry
data to NMFS.
Response: The rule does not require a state exempted via the
regional survey method to submit registry data to NMFS. See Sec.
600.1415(a)(2).
Comment 55: NMFS should clarify the intent of Sec. 600.1417(b). Is
it intended that a state must fully qualify for a license-based
exemption in order to also qualify for a survey-based exemption?
Response: No. A state may qualify for a regional survey-based
exemption even
[[Page 79712]]
if it has no license. The final rule clarifies the intent of Sec.
600.1417(b).
Comment 56: NMFS should amend Sec. 600.1415 to automatically
exempt states that are currently partnering with NMFS in regional
recreational surveys.
Response: The final rule clarifies the requirements and adds
options for states to be designated as exempted states based on their
participation in regional surveys. NMFS believes that the process for
designation of exempted states will appropriately formalize the
commitment among the regional survey partners, including NMFS, and is
not overly burdensome. However, the rule does not provide for automatic
exempted state designation.
Comment 57: The rule should provide more information and clarify
requirements by which states may be exempted based on participation in
a regional survey.
Response: The final rule clarifies that a qualifying regional
survey must include all of the states within such a region. In
addition, the responses to comments 52 to 55 serve to add additional
information and clarification regarding the requirements for state
exemption based on participation in a regional survey.
Comment 58: If NMFS does not conduct surveys in certain areas (e.g.
telephone surveys in Guam, CNMI, American Samoa), citizens of those
areas will be required to register, but the registry will not be used
for data collection.
Response: In such regions, NMFS strongly encourages the states to
take such action as necessary to be designated as an exempted state.
Comment 59: In Sec. 600.1416(b)(2), the reference to Sec.
600.1415(c)(4)(i) is incorrect. It should be to Sec. 600.1416(d)(1).
Response: The comment is correct. The final rule incorporates the
revised reference.
Comment 60: NMFS should assure that exempted state survey data is
sufficiently complete, accurate and timely for the needs of NMFS and
the Councils.
Response: The MRIP will, over time, develop and implement a system
of regional surveys that will provide data that meet the needs of NMFS
and the councils. Survey and data quality standards will be developed
and applied to all participating regional and state surveys that
address satisfying these needs. These standards will be applied to
regional surveys under Sec. 600.1417(b)(4).
Comment 61: States should be able to submit proposals per Sec.
600.1417 with a duration of more than one year.
Response: NMFS agrees. The final rule deletes the word ``annual''.
The state-federal MOA will specify the frequency of submission of state
proposals.
Comments Regarding the Applicability and Coverage of the Federal
Registration Requirement
Comment 62: In Sec. 600.1404, NMFS should delete sections
(1)(iii); (3)(ii) and(4)(iii). This will limit the registration
requirement for persons fishing for salmon to those who are fishing in
tidal waters, consistent with other anadromous species.
Response: NMFS agrees. The geographic scope of MRIP is not expected
to include fishing in the non-tidal freshwater sections of rivers and
watersheds in which anadromous fish, including salmon, migrate.
Accordingly, the recommended revisions are incorporated in the final
rule.
Comment 63: NMFS should amend Sec. 600.1410(f) so that anglers'
federal registration term coincides with the angler's state license
term.
Response: In order to adopt this recommendation, NMFS would have to
construct a complex system with multiple registration terms based on
the license terms in each state. Moreover, the terms would be mainly
applicable to states whose anglers are licensed and would presumably be
exempted states or seeking exempted state designation. NMFS will
maintain a single registration term for all federal registrants nation-
wide: one year from the date of registration.
Comment 64: NMFS should explain more fully why anadromous fish
managed by states are included.
Response: Angling for anadromous species is included in the actions
for which registration is required because Sec. 401(g)(1) of the MSA
specifically requires such registration: ``The program...shall provide
for- ...(A) the registration (including identification and contact
information) of individuals who engage in recreational fishing-...(ii)
for anadromous species;''...
Comment 65: NMFS should clarify the issue of who needs to register
when fishing in state waters (i.e. clarify what is meant by ``angling
for anadromous species'').
Response: The rule states that registration is required for persons
who are angling or spear fishing for anadromous fish in all tidal
waters. Angling is defined as: fishing for, attempting to fish for,
catching or attempting to catch fish by any person (angler) with a hook
attached to a line that is hand-held or by rod and reel made for this
purpose. Spearfishing is similarly defined.
In tidal waters where anadromous fish are present, anglers would
therefore need to be registered to be certain they would not be in
violation of the registration requirement. NMFS will emphasize this in
outreach and education messages in the non-exempted states where
anadromous species are common.
Comment 66: The Background, paragraph 6, page 3, refers to
``marine'' anglers and vessels. This should be revised to reflect
applicability to anadromous fish in fresh waters, including tidal fresh
waters.
Response: The Background text has been modified in the final rule
as suggested by the comment.
Comment 67: In CNMI, Guam and American Samoa, there are no
commercial licenses. How would commercial fishing in these waters be
excluded in order to prevent duplication?
Response: If there are no commercial licenses, persons who take
fish for sale by angling and spear fishing will need to register under
the final rule unless the state or territory is designated as an
exempted state. Regional survey managers and commercial statisticians
would need to collaborate to develop regionally-tailored approaches to
gathering complete, but not duplicative, data.
Comment 68: Seniors who are not required to hold a license in
exempted states would have to register federally.
Response: The comment is incorrect. Seniors who are not required to
hold state licenses in exempted states are not required to register
with NMFS pursuant to Sec. 600.1405(b)(3).
Comment 69: NMFS should apply the registration requirement to
recreational fishing as per 16 U.S.C. 1802 Sec. 3(37) as fishing for
sport or pleasure. Using angling and spear fishing as proposed broadens
the applicability of the rule to include certain subsistence and non-
recreational uses.
Response: NMFS has chosen to apply the registration requirement to
the specific, observable actions of angling or spear fishing rather
than to the less well defined activity of recreational fishing. This
approach is necessary to ensure that the requirement for registration
can be effectively enforced. If the requirement were applied to
``recreational fishing'', an officer would have to observe, and NMFS
would have to prove, a person's motivation for engaging in fishing.
NMFS cannot enforce the rule on this basis. NMFS acknowledges that an
effect of use of angling and spear fishing as the basis for
[[Page 79713]]
registration is to apply the requirement to certain subsistence and
non-recreational fisheries. The registry fee for indigenous people is
waived for this reason. NMFS also believes many states in which there
are well defined subsistence fisheries will be designated as exempted
states.
NMFS recognizes that, where there are established regulatory
programs for subsistence fishing, requiring anglers and spear fishers
who are enrolled or permitted in such programs to also register under
this rule may cause unnecessary and confusing dual registration, and
may also result in duplication of reporting and accounting for catch.
Therefore, the final rule does not require persons who are formally
enrolled or permitted to participate in state or federal subsistence
fisheries to register with NMFS.
Comment 70: The rule should include a clear statement that anglers
fishing in state waters would only have to comply with state licensing
regulations and not have to register federally.
Response: Persons who are angling in state waters for anadromous
species will have to register federally unless they meet the criteria
of another provision of Sec. 600.1405(b), even if a state license is
also required. The rule specifies the angling and spear fishing
activities that require federal registration. NMFS will provide public
information and outreach materials that clarify these requirements for
anglers.
Comment 71: NMFS should include the Alaskan halibut fishery.
Response: Individuals and charter boats that fish for Alaskan
halibut in the EEZ are included in the registry program. If the state
of Alaska is designated as an exempted state, its license holders will
not be required to register with NMFS. NMFS fully expects that, if
designated as an exempted state, Alaska will provide license-holder
data that includes persons and charter boats that fish for halibut and/
or acceptable survey data that includes halibut catch data.
Comment 72: NMFS should include charter fishing vessels in the
registry program.
Response: Charter vessels are included in the registry program. See
Sec. 600.1405(a)(2) and (3) and Sec. 600.1415(a)(1).
Comments Regarding Definitions
Comment 73: NMFS should add a definition of ``tidal waters''.
Consider a definition that defines tidal waters as those lying seaward
of a line established in each coastal state's laws or regulations to
delineate the boundary between state freshwater and saltwater licensing
requirements or management zones.
Response: NMFS agrees with the need to add a definition of ``tidal
waters'', and has added the following definition to the final rule:
waters that lie below mean high water and seaward of the first upstream
obstruction or barrier to tidal action and that are subject to the ebb
and flow of the astronomical tides under ordinary conditions.
NMFS is not able to incorporate by reference individual state
boundaries as established by state laws. However, NMFS can consider
incorporating state-established boundaries between salt water and fresh
water license requirements or management areas in the Memoranda of
Agreement for exempted states. Sections 600.1416(a) and 600.1416(d)(3)
of the final rule have been modified to incorporate this provision.
Comment 74: Define ``continental shelf fishery resources beyond the
EEZ.''
Response: ``Continental shelf fishery resources'' and ``exclusive
economic zone'' are defined in the MSA. Absent a definition in the
rule, the statutory definition applies. The final rule references the
statutory definition.
Comment 75: NMFS should define ``licensed fishing piers.''
Response: The final rule refers to state-licensed fishing pier.
Persons who fish on a state-licensed pier may or may not pay a fee to
the permit holder and may or may not be required to hold a state
fishing license.
Comment 76: NMFS should amend the definition of ``for hire''
fishing vessel to exclude fishing guides that operate in inland fresh
waters.
Response: The final rule does not require the operator of a for-
hire fishing vessel in non-tidal waters to register.
Comment 77: In Sec. 600.1416(b)(4), NMFS should add ``gig'' to the
gears used to spearfish.
Response: The definition of ``spear'' in Sec. 600.10, which is
applicable toSec. 600.1416(b)(4) is: ``Spear means a sharp, pointed,
or barbed instrument on a shaft. Spears can be operated manually or
shot from a gun or sling.'' This general definition should be
applicable to gigs or other locally-named spear-like gear.
Comment 78: NMFS should clarify the difference between licensed
piers in Sec. 600.1416(b)(4) and public piers in Sec. 600.1416(c)(3).
Response: In general, licensed piers are those which are licensed
by a state and on which anglers may be allowed to fish without a state
fishing license. Pier license holders may be required to submit data to
the state regarding the fishing that occurs on the piers. States that
do not require anglers fishing on licensed piers to hold a state
license may be designated as exempted states only if the pier permit
holder supplies effort information or angler contact information to the
state. Public piers referred to in Sec. 600.1416(c)(3) are owned and
operated by a public entity. On these piers, anglers, who would
otherwise need a state license, are not required to hold one. NMFS
believes only one state operates this kind of pier.
Comment 79: The definition of angler/spear fisher does not include
other recreational gear types (nets, traps, hand harvest).
Response: The comment is correct. In general, the scope of surveys
that NMFS will conduct using registry data will not include gear types
other than angling and spear fishing.
Comment 80: The definition of angling should be included in the
rule and should include both traditional angling and spearfishing.
Response: The rule's definition of ``angler'' references the
definition of angling in 50 CFR 600.10. NMFS believes that reference is
appropriate and sufficient. The rule also includes a separate
definition of ``spearfishing''.
Comment 81: Anadromous species should be defined as per 50 CFR
600.10.
Response: In order to assure effective enforcement and to
facilitate angler information and education regarding registration
requirements, NMFS has determined that a definition of anadromous
species that simply lists each covered species is the most effective.
Comment 82: NMFS should broaden the definition of a for-hire vessel
to conform to the charter fishing vessel definition in the MSA: ``The
term `charter fishing' means fishing from a vessel carrying a passenger
for hire (as defined in section 2101(21a) of title 46, United States
Code) who is engaged in recreational fishing''.
Response: Consistent with the comment, the definition has been
revised in the final rule to include vessels that carry passengers for
a fee or other consideration.
Comment 83: Add the following species to the list in Sec.
600.1400: Brook trout, brown trout, Dolly Varden and sheefish. Hickory
shad should not be included in the list of anadromous species.
Response: NMFS believes that sea-run brook and brown trout
fisheries are not currently of sufficient magnitude or significance to
warrant adding them to the list of anadromous species.
NMFS has added sheefish and Dolly Varden to the definition in the
final rule.
[[Page 79714]]
NMFS believes that hickory shad are properly classified as
anadromous fish. See, for example, the Atlantic States Marine Fisheries
Commission, Amendment 1 to the Interstate Fishery Management Plan for
Shad and River Herring, April, 1999.
Comment 84: ``State'' should be defined.
Response: ``State'' is defined in the MSA. Absent a definition in
the rule, the statutory definition applies. The final rule references
the statutory definition.
Comments Regarding the Registration Process and Information Required to
Register
Comment 85: The requirement for a registrant to state where they
intend to fish may be perceived as limiting where a person may fish.
Response: The rule provides that, once a person has registered, he
or she may fish in the EEZ or for anadromous species in any region of
the country, regardless of their stated intentions at the time of
registration. Registrants will be asked to provide information about
the regions in which they expect to fish in order to compile accurate
and complete regional registries of anglers for survey purposes. NMFS
will develop informational materials for registrants and potential
registrants that clarify this issue.
Comment 86: Date of birth should also be collected from
registrants.
Response: NMFS agrees. Date of birth is added to the information to
be provided by registrants. This information will assist in confirming
the identity of individual registrants, and will enable NMFS to
differentiate anglers within households for future angler-based survey
purposes.
Comment 87: The rule should address confidentiality of state
license data.
Response: The MOA's with exempted states wi