[Federal Register Volume 77, Number 138 (Wednesday, July 18, 2012)]
[Rules and Regulations]
[Pages 42189-42192]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17490]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 120118050-2206-02]
RIN 0648-BB49


Marine Recreational Fisheries of the United States; National 
Saltwater Angler Registry and State Exemption Program

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to amend the regulations that 
implement section 401(g) of the Magnuson-Stevens Fishery Conservation 
and Management Act (MSA). The amendments eliminate duplicative 
permitting and registration requirements for holders of Main Hawaiian 
Islands Non-commercial Bottomfish Permits; allow states that exempt 
minors under the age of 17 from the state license or registration 
requirements to be eligible for Exempted State designation; allow the 
U.S. Virgin Islands to be designated as an Exempted State under the 
qualifying regional survey option of the rule; and clarify and update 
various provisions of the rule.

DATES: This final rule is effective August 17, 2012.

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 
Web site at http://www.st.nmfs.noaa.gov/mrip/. Comments regarding the 
burden-hour estimates or other aspects of the collection-of-information 
requirements contained in this rule should be submitted in writing to 
Gordon Colvin, Office of Science and Technology, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910 and 
to OMB by email to OIRA Submission@omb.eop.gov, or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Gordon Colvin, phone: 301-427-8118; 
fax: 301-713-1875; or email: 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 http://www.gpoaccess.gov/index.html. 
Background information and documents are available at the NMFS Office 
of Science and Technology Web site at http://www.countmyfish.noaa.gov/index.html.

Background

    The action amends regulations at 50 CFR 600.1400 that implement the 
National Saltwater Angler Registry and State Exemption Program (NSAR). 
The rule established the requirements and procedures for anglers, spear 
fishers and for-hire fishing vessels to register with NMFS unless 
exempt from the registration requirement. The NSAR regulations also 
established the requirements and procedures whereby states may be 
designated as Exempted States. The anglers and for-hire fishing vessels 
licensed or registered by Exempted States, and those anglers and 
vessels that are not required to be licensed or registered under the 
laws of such states, are not required to register with NMFS.
    Based on its experience with administering NSAR and input from 
states, NMFS has determined that minor revisions to the rule are needed 
to clarify and update certain provisions in order to address the 
following objectives: (1) Eliminate duplicative permitting and 
registration requirements for holders of Main Hawaiian Islands Non-
commercial Bottomfish Permits; (2) allow states that exempt minors 
under the age of 17 from the state license or registration requirements 
to be eligible for Exempted State designation; (3) allow the U.S. 
Virgin Islands to be designated as an Exempted State under the 
qualifying regional survey option of the rule; and (4) clarify and 
update various provisions of the rule.
    The proposed changes were explained in the preamble to the proposed 
rule.

Comments and Responses

    On February 6, 2012, NMFS published a notice of the proposed rule 
(77 FR 5751). The public comment period ended on April 6, 2012. NMFS 
received thirteen comments on the proposed rule, including one from a 
state, one from a regional fishery management council, one from a non-
governmental organization and ten from individuals. The comments and 
responses are summarized below.
     General comment: One non-governmental organization 
commented generally in support of the proposed revisions to Sec. Sec.  
600.1400, 600.1405, 600.1416 and 600.1417 that were not otherwise 
addressed in the organization's specific comments.
    Response: NMFS acknowledges the comment.
     Section 600.1405(b)(7): NMFS proposed to clarify that the 
exception to the NSAR registration requirement for licensed commercial 
fishing vessels is only for commercial fishing and not for for-hire 
fishing.
    Comment: The Western Pacific Fishery Management Council opposed 
this proposal and requested that the exemption from registration also 
apply to for-hire fishing vessels licensed by the State of Hawaii. The 
comment noted that the State of Hawaii issues a single license, the 
``Commercial Marine License'' (CML), for both commercial fishing and 
for-hire vessels. Because the license is named a ``commercial'' marine 
license, the holders are not currently required to register with NMFS 
under the commercial license exception in Sec.  600.1405(b)(7), even 
when they are operating as for-hire fishing vessels otherwise required 
to register under Sec.  600.1405(a). The Council believes that 
requiring Hawaii-licensed for-hire vessels to be federally registered 
is unnecessary and duplicative, given the requirement for all holders 
of CML's to report trips and catch.
    Response: All states, except Hawaii, are designated as Exempted 
States and have entered into Memoranda of Agreement to provide the 
necessary data to NMFS regarding their for-hire fisheries. Only Hawaii 
would be affected by the proposed rule change. All vessels that hold 
the Hawaii ``Commercial Marine License,'' including for-hire vessels, 
are required to complete and submit trip reports to the state. Because 
Hawaii already collects for-hire catch data from the trip reports and 
submits the data to NMFS, it is not necessary at the present time to 
compile a separate list or registry of for-hire vessels for sampling 
purposes. Therefore, NMFS agrees that this proposed amendment is not 
necessary now and will defer its adoption for future consideration.
     Section 600.1405(b)(8): NMFS proposed to provide that 
holders of Main Hawaiian Islands (MHI) Non-

[[Page 42190]]

commercial Bottomfish Permits do not need to register under NSAR.
    Comments: Eight individuals and one Regional Fishery Management 
Council commented in support of this amendment.
    Response: NMFS acknowledges the comments.
     Section 600.1416(a): NMFS proposed to clarify the existing 
requirement that lists of licensed anglers/registrants submitted by 
Exempted States need to be updated at least annually.
    Comment: A state requested further information regarding what 
qualifies as acceptable annual updating.
    Response: Guidance regarding the acceptable form, procedure and 
timing of annual updates was not included in the proposed rule. Annual 
updates are addressed in the Memoranda of Agreement with each exempted 
state. Adding such guidance to the rule would require development of 
draft guidelines and opportunity for public comment as a notice of 
revised or proposed rulemaking. NMFS does not believe it is necessary 
or desirable to develop such guidance via rulemaking at this time. It 
is not feasible to anticipate all of the many ways in which states may 
choose to conduct updates. If NMFS includes an incomplete or incorrect 
description of accepted methods in the rule, flexibility to allow for 
different or innovative methods in the future would be unnecessarily 
limited. NMFS will respond to requests from any state individually 
regarding the form, procedure and timing of annual updates.
     Section 600.1416(d): NMFS proposed to provide an extra 
year for states that need to enact legislation to remain qualified for 
Exempted State designation.
    Comments: One non-governmental organization noted this revision as 
``concerning''due to the potential for delay in the capability of MRIP 
to function at full capacity in 2013 as a result of any delay in 
providing a complete state angler database.
    Response: Via MRIP, NMFS is developing, testing and implementing a 
series of improvements to the design and management of survey and 
estimation methods used to produce marine recreational fisheries 
statistics, including estimates of catch and effort. The improvements 
will address the recommendations of the National Research Council's 
2006 Review of Recreational Fisheries Survey Methods and the 
requirements of Section 401(g) of the MSA. As new and improved survey 
and estimation methods are developed through MRIP and approved by NMFS, 
they will be implemented sequentially. Accordingly, there is no single 
date for implementation of MRIP. Rather, survey and estimation 
improvements will be phased in over time as they are developed and 
approved for implementation.
    The submission of angler registry data by states supports one of 
the many components of MRIP, the creation of a list of anglers to be 
surveyed as part of the survey to develop statistics regarding angler 
effort, including fishing trip data, for the Atlantic and Gulf states 
and Puerto Rico. The current MRIP timetable for implementing system-
wide changes to these effort surveys provides for continued pilot 
testing of effort sampling designs that use both angler registries and 
other lists for persons to be sampled, including postal address and 
telephone directory lists, into 2013. Not until these current pilot 
projects are complete, in late 2013 or later, will NMFS determine what 
specific sampling design to use in MRIP effort surveys on the Atlantic 
and Gulf coasts, beginning in 2014 or later. An additional year to 
provide updated registry information will extend into 2013. This would 
allow the states to provide complete registry data by 2014, the 
earliest time by which the new effort survey designs will be in use for 
the Atlantic and Gulf coasts.
    Comment: A state commented in support of this proposal and further 
recommended that it be extended to other administrative or legal 
actions a state is required to complete to retain its eligibility for 
exempted state designation.
    Response: NMFS recognizes that some state agencies that issue 
fishing licenses may require additional time to formalize Memoranda of 
Agreement or other agreements with other state agencies to enable the 
sharing of data about state license holders. Accordingly, NMFS has 
modified the rule to include the completion of formal agreements 
between state agencies as another basis for a one year extension of 
time under Sec.  600.1416(d) of the rules.The additional year will not 
affect the timing for initiating use of the new MRIP effort survey 
designs for the Atlantic and Gulf coasts for the same reasons as stated 
in the response to the previous comment.
     Section 600.1416(d)(1): NMFS proposed to allow states that 
do not require persons who were born before June 1, 1940, to be 
licensed or registered to qualify for Exempted State designations if 
the state can demonstrate that the number of anglers so excluded is so 
small that exclusion of this group from a sample will not bias survey 
results.
    Comment: One state requested that the rule clarify what proof will 
be required to demonstrate that exclusion of a group from a sample will 
not bias survey results.
    Response: NMFS can provide case specific advice to states based on 
their specific circumstances. Such advice need not be incorporated in 
the rule. Adopting such guidance in the rule would require supplemental 
rulemaking to develop and secure public comment on undesirable limits 
to its flexibility.
     Section 600.1417(b): NMFS proposed to separate the U.S. 
Virgin Islands (USVI) and Puerto Rico into separate regions for 
purposes of submission of regional surveys of recreational fishing 
catch.
    Comments: One individual recommended that a similar amendment be 
included in the rule for the three western Pacific Territories/
Commonwealths, separating Guam, American Samoa and the Commonwealth of 
the Northern Mariana Islands into three separate regions.
    Response: NMFS proposed to separate the Caribbean region into two 
separate regions because it is expected that a survey design for the 
USVI will differ significantly from a survey design for Puerto Rico. 
Therefore, neither the USVI nor Puerto Rico would qualify for a single, 
regional survey-based exemption pursuant to Sec.  417(b). NMFS did not 
propose to separate Guam, American Samoa and the Commonwealth of the 
Northern Marianas Islands into three separate regions in the notice of 
proposed rulemaking because all three are covered by a single survey 
design as part of the WPacFIN Regional Survey. Each of the three has 
executed a MOA with NMFS and is designated as an exempted state. NMFS 
will reconsider this comment in a future rulemaking if the WPacFIN-
based regional survey no longer supports registry exemptions for the 
partners.

Changes From the Proposed Rule

    In response to public comment, NMFS made the following changes in 
the final rule:
    In Sec.  600.1405(b)(7) NMFS is not adopting the proposed amendment 
to clarify that the exception to the NSAR registration requirement for 
licensed commercial fishing vessels is only for commercial fishing and 
not for for-hire fishing.
    In Sec.  600.1416(d), NMFS modified the rule to allow a one-year 
extension of time for the completion of formal agreements between state 
agencies.
    In addition to the changes made in response to public comment as 
described above, NMFS made one

[[Page 42191]]

additional change in the final rule. In Sec.  600.1416(b)(7), the words 
``or registration'' are added for consistency with other references to 
state licenses and registrations.

Classification

    NMFS has determined that the rule is consistent with the applicable 
provisions of the Magnuson-Stevens Act and other applicable law.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this rule 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. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none has been prepared.
    This final rule modifies a collection-of-information subject to the 
Paperwork Reduction Act (PRA) and which has been approved by OMB under 
control number 0648-0578. Public reporting burden for angler 
registration is estimated to average three minutes per response, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. 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 
email to Submission@omb.eop.gov">OIRA_Submission@omb.eop.gov, or fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 600

    Fisheries, Fishing, Fishing vessels, Statistics.

    Dated: July 12, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 50 CFR part 
600 to read as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

0
1. The authority citation for part 600 continues to read as follows:

    Authority: 16 U.S.C. 1881.


0
2. Section 600.1400 is revised to read as follows:


Sec.  600.1400  Definitions.

    In addition to the definitions in the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) and in Sec.  
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 Sec.  600.10.
    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

    Angler means a person who is angling (see 50 CFR 600.10) in tidal 
waters.
    Authorized officer has the same meaning as in 50 CFR 600.10.
    Combination license means either:
    (1) A single state fishing license that permits fishing in fresh 
waters and tidal waters at one price; or
    (2) A single state license that permits a group of fishing and 
hunting activities, including fishing in tidal waters, at a price that 
is less than the sum of the cost of the individual licenses.
    Commercial fishing has the same meaning as in 16 U.S.C. 1802.
    Continental shelf fishery resources has the same meaning as in 16 
U.S.C. 1802.
    Exempted state means a state that has been designated as an 
exempted state by NMFS pursuant to Sec.  600.1415.
    For-hire fishing vessel means a vessel on which passengers are 
carried 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.
    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.
    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).
    State has the same meaning as in 16 U.S.C. 1802.
    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.

0
3. In Sec.  600.1405, revise paragraphs (b)(4), and (b)(8) to read as 
follows:


Sec.  600.1405  Angler registration.

* * * * *
    (b) * * *
    (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 660.707(a)(1);
* * * * *
    (8) Holds an HMS Angling permit under 50 CFR 635.4(c) or a MHI Non-
commercial Bottomfish permit under 50 CFR 665.203(a)(2);
* * * * *

0
4. In Sec.  600.1416:

[[Page 42192]]

0
a. Revise paragraphs (a), (b)(1), (c), (d) introductory text, and 
(d)(1); and
0
b. Add paragraph (b)(7) to read as follows:


Sec.  600.1416  Requirements for exempted state designation based on 
submission of state license holder data.

    (a) A state must annually update and 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 vessel operators, and the name and state 
registration number or U.S. Coast Guard documentation number of for-
hire vessels that are licensed to fish, or are registered as fishing, 
in the EEZ, in the tidal waters of the state, or for anadromous 
species. The Memorandum of Agreement developed in accordance with Sec.  
600.1415(b)(2) will specify the timetable for a state to compile and 
submit complete information 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) * * *
    (1) Under 17 years of age;
* * * * *
    (7) Fishing on days designated as ``free fishing days'' by states. 
``Free fishing days'' means fishing promotion programs by which states 
allow new anglers to fish for a specified day without a license or 
registration.
    (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 or registration program excludes anglers in any 
category other than those listed in paragraph (b) of this section.
    (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 is later, and thereafter in 
accordance with the Memorandum of Agreement. States that provide NMFS 
with notice that they are required to enact legislation or to enter 
into formal memoranda of agreement or contracts with other state 
agencies to comply with this requirement must submit the data within 
three years of the effective date of the Memorandum of Agreement:
    (1) Name, address and telephone number, updated annually, of 
excluded anglers over age 59, unless the state can demonstrate that the 
number of anglers excluded from the license or registration requirement 
based on having a date of birth before June 1, 1940 is so small it has 
no significant probability of biasing estimates of fishing effort if 
these anglers are not included in a representative sample;
* * * * *

0
5. In Sec.  600.1417, revise paragraphs (b)(1)(iii) through (vii), and 
(b)(3), and add paragraph (b)(1)(viii) to read as follows:


Sec.  600.1417  Requirements for exempted state designation based on 
submission of recreational survey data.

* * * * *
    (b) * * *
    (1) * * *
    (iii) Puerto Rico;
    (iv) U.S. Virgin Islands;
    (v) California, Oregon and Washington;
    (vi) Alaska;
    (vii) Hawaii; or
    (viii) American Samoa, Guam and the Commonwealth of the Northern 
Mariana Islands.
* * * * *
    (3) Utilize angler registry data to identify individuals to be 
surveyed by telephone, mail or Internet if such regional survey 
includes a telephone survey component; and
* * * * *

[FR Doc. 2012-17490 Filed 7-17-12; 8:45 am]
BILLING CODE 3510-22-P