Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Referendum Procedures for a Potential Gulf of Mexico Grouper and Tilefish Individual Fishing Quota Program, 51617-51620 [E8-20543]
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Federal Register / Vol. 73, No. 172 / Thursday, September 4, 2008 / Proposed Rules
trends, habitat trends, and effects of
management on ice seals;
(2) Information on the effects of
climate change and sea ice change on
the distribution and abundance of ice
seals, and their principal prey over the
short- and long-term;
(3) Information on the effects of other
potential threat factors, including oil
and gas development, contaminants,
hunting, poaching, and changes in the
distribution and abundance of ice seals
and their principal prey over the shortterm and long-term;
(4) Information on management
programs for ice seal conservation,
including mitigation measures related to
oil and gas exploration and
development, hunting conservation
programs, anti-poaching programs, and
any other private, tribal, or
governmental conservation programs
which benefit ice seals; and
(5) Information relevant to whether
any populations of the ice seal species
may qualify as distinct population
segments.
We will base our findings on a review
of the best scientific and commercial
information available, including all
information received during the public
comment period.
Status Review
ebenthall on PRODPC60 with PROPOSALS
we do not recognize the taxonomic
validity of the bearded and ringed seal
subspecies or the spotted seal species as
described in this petition, the petitioner
requests that we evaluate whether the
spotted, ringed and bearded seals of the
Bering, Chukchi, and Beaufort seas that
are the subject of this petition constitute
a DPS of the full species and/or
represent a significant portion of the
range of the full species and are
therefore eligible for listing on such
basis.
It is the petitioner’s contention that
ice seals face global extinction in the
wild, and therefore, constitute a
threatened or endangered species as
defined under 16 U.S.C. 1532(6) and
(20). The petition presents information
on (1) ‘‘global warming which is
resulting in the rapid melt of the seals’
sea-ice habitat;’’ (2) ‘‘high harvest levels
allowed by the Russian Federation;’’ (3)
‘‘oil and gas exploration and
development;’’ (4) ‘‘rising contaminant
levels in the Arctic;’’ and (5) ‘‘bycatch
mortality and competition for prey
resources from commercial fisheries.’’
The petition also presents information
on the species’ taxonomy, distribution,
habitat requirements, reproduction, diet,
natural mortality, and demographics, as
well as a discussion of the applicability
of the five factors listed under ESA
section 4(a)(1). We have reviewed the
petition, the literature cited in the
petition, and other literature and
information available in our files. Based
on our review of the petition and other
available information, we find that the
petition meets the aforementioned
requirements of the regulations under
50 CFR 424.14(b)(2) and therefore
determine that the petition presents
substantial information indicating that
the requested listing action may be
warranted.
National Oceanic and Atmospheric
Administration
As a result of this finding, we will
continue our ongoing status review to
determine whether listing ringed,
bearded, and spotted seals under the
ESA is warranted. We intend that any
final action resulting from this status
review will be as accurate and as
effective as possible. Therefore, we are
opening a 60–day public comment
period to solicit comments, suggestions,
and information from the public,
government agencies, the scientific
community, industry, and any other
interested parties on the status of the ice
seals throughout their range, including:
(1) Information on taxonomy,
abundance, reproductive success, age
structure, distribution, habitat selection,
food habits, population density and
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Authority
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Dated: August 29, 2008.
James W. Balsiger,
Acting Assistant Administrator for Fisheries,
National Marine Fisheries Service.
[FR Doc. E8–20544 Filed 9–3–08; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
50 CFR Part 622
[Docket No. 0808051052–81144–01]
RIN 0648–AW85
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; Reef Fish
Fishery of the Gulf of Mexico;
Referendum Procedures for a Potential
Gulf of Mexico Grouper and Tilefish
Individual Fishing Quota Program
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
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51617
SUMMARY: NMFS issues this proposed
rule to provide potential participants
information concerning a referendum
for an individual fishing quota (IFQ)
program for the Gulf of Mexico (Gulf)
commercial grouper and tilefish
fisheries. This rule informs the potential
participants of the procedures,
schedule, and eligibility requirements
that NMFS would use in conducting the
referendum. If the IFQ program, as
developed by the Gulf of Mexico
Fishery Management Council (Council),
is approved through the referendum
process, the Council may choose to
submit the IFQ program to the Secretary
of Commerce (Secretary) for review,
approval, and implementation. The
intended effect of this proposed rule is
to implement the referendum consistent
with the requirements of the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act).
DATES: Written comments must be
received on or before October 6, 2008.
ADDRESSES: You may submit comments
on the proposed rule, identified by
‘‘0648–AW85’’, by any of the following
methods:
• Electronic Submissions: Submit all
electronic public comments via the
Federal e-Rulemaking Portal: https://
www.regulations.gov.
• Fax: 727–824–5308; Attention:
Susan Gerhart.
• Mail: Susan Gerhart, Southeast
Regional Office, NMFS, 263 13th
Avenue South, St. Petersburg, FL 33701.
Instructions: All comments received
are a part of the public record and will
generally be posted to https://
www.regulations.gov without change.
All Personal Identifying Information (for
example, name, address, etc.)
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit Confidential Business
Information or otherwise sensitive or
protected information.
NMFS will accept anonymous
comments (enter N/A in the required
fields, if you wish to remain
anonymous). You may submit
attachments to electronic comments.
Attachments will be accepted in
Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
Copies of supporting documentation
for this proposed rule, which includes
a regulatory impact review (RIR) and a
Regulatory Flexibility Act Analysis
(RFAA), are available from NMFS at the
address above.
FOR FURTHER INFORMATION CONTACT:
Susan Gerhart, 727–824–5305.
SUPPLEMENTARY INFORMATION: The reef
fish fishery in the exclusive economic
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Federal Register / Vol. 73, No. 172 / Thursday, September 4, 2008 / Proposed Rules
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zone (EEZ) of the Gulf is managed under
the Fishery Management Plan for the
Reef Fish Resources of the Gulf of
Mexico (FMP). The FMP was prepared
by the Council and is implemented
under the authority of the MagnusonStevens Act by regulations at 50 CFR
part 622.
Background
The Council first considered an IFQ
program for the Gulf grouper fishery in
2004. At that time, the Council
anticipated future action was needed to
further control effort in the Gulf grouper
fishery. At its October 2004 meeting, the
Council requested NMFS publish a
control date to discourage speculative
participation in the grouper fishery for
the purpose of developing a catch
history. The Council chose October 15,
2004, as the control date. NMFS
published the control date in the
Federal Register on November 16, 2004
(69 FR 67106) and requested public
comment.
The Council is currently developing
Amendment 29 to the FMP, which
includes a multi-species IFQ program as
the preferred management approach to
address overcapacity issues and to
rationalize effort in the Gulf commercial
grouper and tilefish fisheries.
Section 303A of the MagnusonStevens Act specifies general
requirements for limited access
privilege (LAP) programs implemented
in U.S. marine fisheries. A LAP is
defined as a Federal limited access
permit that provides a person the
exclusive privilege to harvest a specific
portion of a fishery’s total allowable
catch. This definition includes
exclusive harvesting privileges allocated
to participants under IFQ programs.
Section 303A(c)(6)(D) of the
Magnuson-Stevens Act outlines specific
requirements for IFQ program proposals
developed by the Council. The
Magnuson-Stevens Act requires such
program proposals, as ultimately
developed, be approved through
referenda before they may be submitted
for review and implementation by the
Secretary. The Magnuson-Stevens Act
also mandates the Secretary publish
referendum guidelines to determine
procedures for initiating, conducting,
and deciding IFQ program referenda, as
well as voting eligibility requirements.
These procedures and guidelines are
intended to ensure referenda conducted
on IFQ program proposals are fair and
equitable and will provide the Council
the flexibility to define IFQ program
referenda voting eligibility requirements
on a fishery-specific basis, yet within
the constraints of the Magnuson-Stevens
Act and other applicable law. NMFS
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published proposed guidelines in the
Federal Register on April 23, 2008 (73
FR 21893) and requested public
comment.
Purpose of the Proposed Rule and the
Referendum
NMFS, in accordance with the
provisions of section 303A(c)(6)(D) of
the Magnuson-Stevens Act, will conduct
a referendum to determine whether the
plan amendment for an IFQ program for
the Gulf commercial grouper and
tilefish fisheries, as developed by the
Council, should be submitted to the
Secretary for review, and possible
approval and implementation. The
determination will be based on a
majority vote of eligible voters. The
primary purpose of this proposed rule is
to notify potential participants in the
referendum, and members of the public,
of the procedures, schedule, and
eligibility requirements that NMFS
would use in conducting the
referendum. The procedures and
eligibility criteria used for the purposes
of conducting the referendum are
independent of the procedures and
eligibility requirements in the proposed
IFQ program for the Gulf commercial
grouper and tilefish fisheries contained
in Amendment 29 to the FMP. The
proposed IFQ program is being
developed by the Council through the
normal plan amendment and
rulemaking processes and involves
extensive opportunities for public
review and comment during Council
meetings, public hearings, and public
comment on any proposed rule.
Referendum Process
How Would the Referendum Be
Initiated?
According to the guidelines, a Council
must have held public hearings on an
IFQ program proposal, considered
public comment on the proposal, and
selected preferred alternatives for the
proposed IFQ program, before
submitting an initiation request letter to
NMFS. The initiation request letter
would allow NMFS to initiate the
referendum process. As the above
requirements have been fulfilled, the
Council submitted an initiation request
letter to NMFS on August 18, 2008.
The referendum initiation request
letter must include recommended
eligibility criteria for voting in the
referendum, rationale for the
recommendation, any alternatives to the
recommendation, and supporting
analyses for the recommendation. For a
fishery managed with multi-species
permits, the initiation request letter
must also include recommended criteria
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for defining those permit holders who
have substantially fished the species to
be included in the referendum process.
If the referendum fails to approve the
proposed IFQ program, any request from
the Council for a new referendum in the
same fishery must include an
explanation of the substantive changes
to the proposed IFQ program or the
changes of circumstances in the fishery
that would warrant initiation of an
additional referendum.
Who Would Be Eligible to Vote in the
Referendum?
Section 303A(c)(6)(D) of the
Magnuson-Stevens Act establishes
criteria regarding eligibility of persons
who may vote in the referendum. For
referenda conducted in New England
fisheries, section 303A(c)(6)(D)(v) of the
Magnuson-Stevens Act includes using
income-dependent criteria when
determining voter eligibility, i.e. crew
members who derive a significant
percentage of their total income from
the fishery under the proposed IFQ
program would be eligible to vote in the
referendum. However, for Gulf fisheries
managed with multi-species permits,
such as the Gulf commercial grouper
and tilefish fisheries, the MagnusonStevens Act states that those
participants who have substantially
fished the species considered for the
IFQ program, would be eligible to vote
in the referendum. The Council and
NMFS interpret ‘‘substantially fished’’
to represent substantial contribution to
the overall fishery production in total
harvest. Therefore, the Council has
established voter eligibility criteria in
terms of annual grouper and tilefish
landings thresholds. The decision to
identify participants in terms of average
annual harvest does not consider
dependency on the fishery. A fishery
participant may not meet the average
annual grouper and tilefish landings
threshold, but still be dependent on the
fishery as a source of income.
In the Council’s referendum initiation
request letter, the definition of
‘‘substantially fished’’ states, ‘‘Only
commercial reef fish permit holders,
with active or renewable permits
(within one year of the grace period
immediately following expiration), who
have combined average annual grouper
and tilefish landings from logbooks
during the qualifying years of at least
8,000 pounds (per permit) be considered
as having substantially fished.’’ The
qualifying years selected by the Council
are 1999 through 2004, with an
allowance for dropping one year.
Therefore, NMFS will use landings data
from logbooks submitted to and
received by the Science and Research
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Director, Southeast Fisheries Science
Center by December 31, 2006, for the
years 1999 through 2004, with the
allowance for dropping one year, as the
sole basis to determine those permit
holders that meet the Council’s
eligibility criterion and will be eligible
to vote in the referendum.
Would Votes Be Weighted?
The Council has proposed assigning
one vote for each permit associated with
qualifying landings from the years 1999
through 2004, with no additional vote
weighting based on catch history.
How Would Votes Be Conducted?
On or about December 1, 2008, NMFS
would mail eligible voters a ballot for
each permit associated with qualifying
landings from the years 1999 through
2004. NMFS would mail the ballots and
associated explanatory information, via
certified mail return receipt requested,
to the address of record indicated in
NMFS’ permit database for eligible
permit holders. The completed ballot
must be mailed to Susan Gerhart,
Southeast Regional Office, NMFS, 263
13th Ave South, St. Petersburg, FL
33701. A referendum ballot must be
received at that address by 4:30 p.m.,
eastern time, no later than 30 days after
the postmark date on the envelope
containing the ballots provided by
NMFS; ballots received after that
deadline would not be considered in
determining the outcome of the
referendum. Although it would not be
required, voters may want to consider
submitting their ballots by registered
mail.
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How Would the Outcome of the
Referendum Be Determined?
Vote counting would be conducted by
NMFS. Approval or disapproval of the
referendum would be determined by a
majority (i.e., a number greater than half
of a total) of the votes cast. NMFS would
prepare a media release announcing the
results of the referendum and would
distribute the release to all Gulf reef fish
permitees, including dealers, and other
interested parties within 60 days of the
deadline for receiving the ballots from
eligible voters. The results would also
be posted on NMFS’ Southeast Regional
Office’s website at https://
sero.nmfs.noaa.gov.
What Will Happen After the
Referendum is Conducted?
NMFS would present the results of
the referendum at the April 13–17,
2009, Council meeting. If the
referendum fails, the Council cannot
proceed with submission of
Amendment 29 and regulations to
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implement an IFQ program for the Gulf
commercial grouper and tilefish
fisheries. If the referendum is approved,
the Council would be authorized, if it so
decides, to submit Amendment 29 and
regulations to NMFS for review and
possible approval and implementation
of an IFQ program for the Gulf
commercial grouper and tilefish
fisheries. The proposed IFQ program
was developed through the normal
Council process that involved extensive
opportunities for industry and public
review and input at various Council
meetings. The public will have
additional opportunities to comment
during public comment periods on the
plan amendment and the proposed
regulations.
Will the Referendum Be Conducted in a
Fair and Equitable Manner?
The Magnuson-Stevens Act requires
the Secretary to conduct referenda for
potential IFQ programs in a fair and
equitable manner. NMFS’ referendum
guidelines outline criteria that NMFS
must consider when reviewing the
Council’s referendum initiation request
letter and supporting analyses to ensure
the referenda will be conducted in a fair
and equitable manner and are consistent
with the national standards and other
provisions of the Magnuson-Stevens
Act, and other applicable law. NMFS
has reviewed these documents from the
Council and has concluded that the
proposed referendum criteria are
consistent with the guidelines. NMFS
has preliminarily concluded that:
1. The Council’s referendum criteria
are rationally connected to and further
the objectives of the proposed IFQ
program. The Council’s definition of
‘‘substantially fished’’ includes those
permit holders with both past and
present participation in the grouper and
tilefish fisheries and allows those who
account for the majority of grouper and
tilefish landings to vote in the
referendum. The definition includes use
of catch histories from a qualifying time
period that would also be used for
initial apportionment of IFQ shares in
the proposed IFQ program.
2. Referendum voting eligibility
requirements are designed to prevent
any one person or single entity from
obtaining an excessive share of the
voting privileges. The Council has
proposed assigning one vote for each
permit associated with qualifying
landings from the years 1999 through
2004, instead of weighting the votes.
3. The voter eligibility criteria enable
validating a participant’s eligibility.
Landings data from logbooks submitted
to NMFS and NMFS permit history
records will be used to validate
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51619
participants’ eligibility to vote in the
referendum.
4. The time period and format
proposed to conduct the referendum is
consistent with the referendum
guidelines and provides for a fair and
equitable process. NMFS would mail
referendum ballots to eligible voters as
soon as practicable after the final
referendum rule is published. Eligible
voters would have to submit their
ballots to be received by NMFS no later
than 30 days from the postmark date on
the envelope containing the ballots
provided by NMFS. NMFS would tally
the votes and post the results within 60
days of receiving the ballots.
Summary Information About the
Potential IFQ Program
The current management of Gulf
commercial grouper and tilefish
fisheries is based on a traditional
command and control approach. This
management approach has resulted in
overcapitalization of the commercial
grouper and tilefish fisheries which has
caused increased derby fishing
conditions and in some years has led to
closures of these fisheries prior to the
end of the fishing year. The purpose of
implementing an IFQ program for the
commercial grouper and tilefish
fisheries is to rationalize effort and
reduce overcapacity in the fleet.
Amendment 29 to the FMP includes
several management programs that
would be capable of achieving these
management goals, an IFQ program
being the Council’s preferred approach.
The actions included in Amendment 29
include: Initial eligibility in the IFQ
program, initial apportionment of IFQ
shares, IFQ share categories, multi-use
allocation and trip allowances, transfer
eligibility requirements, IFQ share
ownership caps, IFQ allocation
ownership caps, adjustment to the
commercial quota, establishment and
structure of an appeals process, a ‘‘use
it or lose it’’ policy for IFQ shares, a cost
recovery plan, and approval of landing
sites. The Council has selected its
preferred alternatives for each of these
actions through the normal Council
process. If the referendum is approved,
the Council, if it so decides, may
continue with the submission of
Amendment 29 for review, approval,
and implementation.
Classification
This proposed 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 that this
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rule would not have a significant
economic impact on a substantial
number of small entities. The basis for
this certification follows:
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The Magnuson-Stevens Act provides the
statutory basis for the proposed rule. The
proposed rule would implement a
referendum on a potential IFQ program for
the Gulf commercial grouper and tilefish
fisheries, consistent with the requirements of
the Magnuson-Stevens Act. The primary
purpose of this proposed rule is to notify
potential participants in the referendum, and
members of the public, of the procedures,
schedule, and eligibility requirements that
NMFS would use in conducting the
referendum.
Participation in the Gulf commercial
grouper and tilefish fisheries requires a
Federal reef fish permit. There are currently
1,080 Federal reef fish permits that are either
active (non-expired) or expired but
renewable. Within this fleet, over the 2005–
2006 fishing years, 895 vessels recorded
landings of reef fish species, valued at a total
of approximately $46.3 million (2007
dollars), or an average of approximately
$52,000 per vessel. Some fleet activity occurs
in the reef fish fishery, such that some
entities own multiple permits and vessels.
The extent of such activity is unknown,
however, and, for the purpose of this
analysis, all permits or vessels are assumed
to be independent entities.
One class of small business entities would
be directly affected by the rule: Commercial
fishing operations. The Small Business
Administration defines a small business that
engages in commercial fishing as a firm that
is independently owned and operated, is not
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dominant in its field of operation (including
its affiliates), and has combined annual
receipts not in excess of $4.0 million (NAICS
code 114111, finfish fishing) for all its
affiliated operations worldwide. The
proposed referendum qualifying criteria
would allow 333 of the 1,080 entities with
Federal reef fish permits to participate in the
referendum. Economic profiles of these
entities are not available. However, assuming
all the reef fish revenues discussed above
were attributable to just the 333 qualifiers,
which is known with certainty to not be true,
the average annual revenue from reef fish
sales, based on 2005–2006 harvest data,
would be less than $140,000 per qualifier.
Thus, the average annual revenue per
qualifying entity is determined to be less
than $140,000 and all commercial entities
that would qualify for participation in the
referendum are determined, for the purpose
of this proposed rule, to be small entities.
The proposed rule defines the procedures,
schedule, and eligibility requirements that
NMFS would use in conducting the
referendum. There are no implementing
regulations associated with the proposed
rule. Because there are no implementing
regulations, there would be no direct effects
on current fishery participation, effort,
harvests, or other use of the grouper and
tilefish resources. All current entities can
continue to participate in the fishery in the
manner in which they currently operate.
Therefore, all current harvests, costs, and
profits would remain unchanged. Any
effects, adverse or otherwise, on small
entities that participate in the fishery would
only occur if in the future an IFQ program
is implemented as a result of subsequent
rulemaking. The final expected impacts of
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the IFQ program are unknown since final
approval of the specific program has not
occurred. Estimates of variable costs savings
attributable to the implementation of an IFQ
system in the Gulf commercial grouper and
tilefish fisheries are between $2.1 and $2.9
million per year, as well as unquantified
reductions in fixed costs and increased exvessel prices. Final estimates of expected
impacts will be identified should an IFQ
program be proposed. Since the proposed
rule would not directly affect fishery
participation or harvest in any way, the rule
would not reduce business profit for any
fishery participants or related businesses.
Profits are, therefore, not expected to be
significantly reduced by the proposed rule.
On this basis, it is determined that the
proposed rule would not have a significant
economic impact on a substantial number of
small entities.
Accordingly, an initial regulatory
flexibility analysis was not required or
prepared. Copies of the RIR and RFAA
are available (see ADDRESSES).
IFQ program referenda conducted
under section 303A(c)(6)(D)(iv) of the
Magnuson-Stevens Act are exempt from
the Paperwork Reduction Act.
Authority: 16 U.S.C. 1801 et seq.
Dated: August 29, 2008.
James W. Balsiger,
Acting Assistant Administrator for Fisheries,
National Marine Fisheries Service.
[FR Doc. E8–20543 Filed 9–3–08; 8:45 am]
BILLING CODE 3510–22–S
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]]>Agencies
[Federal Register Volume 73, Number 172 (Thursday, September 4, 2008)]
[Proposed Rules]
[Pages 51617-51620]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-20543]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 0808051052-81144-01]
RIN 0648-AW85
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Reef Fish Fishery of the Gulf of Mexico; Referendum Procedures for a
Potential Gulf of Mexico Grouper and Tilefish Individual Fishing Quota
Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this proposed rule to provide potential
participants information concerning a referendum for an individual
fishing quota (IFQ) program for the Gulf of Mexico (Gulf) commercial
grouper and tilefish fisheries. This rule informs the potential
participants of the procedures, schedule, and eligibility requirements
that NMFS would use in conducting the referendum. If the IFQ program,
as developed by the Gulf of Mexico Fishery Management Council
(Council), is approved through the referendum process, the Council may
choose to submit the IFQ program to the Secretary of Commerce
(Secretary) for review, approval, and implementation. The intended
effect of this proposed rule is to implement the referendum consistent
with the requirements of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act).
DATES: Written comments must be received on or before October 6, 2008.
ADDRESSES: You may submit comments on the proposed rule, identified by
``0648-AW85'', by any of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal e-Rulemaking Portal: https://
www.regulations.gov.
Fax: 727-824-5308; Attention: Susan Gerhart.
Mail: Susan Gerhart, Southeast Regional Office, NMFS, 263
13th Avenue South, St. Petersburg, FL 33701.
Instructions: All comments received are a part of the public record
and will generally be posted to https://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information.
NMFS will accept anonymous comments (enter N/A in the required
fields, if you wish to remain anonymous). You may submit attachments to
electronic comments. Attachments will be accepted in Microsoft Word,
Excel, WordPerfect, or Adobe PDF file formats only.
Copies of supporting documentation for this proposed rule, which
includes a regulatory impact review (RIR) and a Regulatory Flexibility
Act Analysis (RFAA), are available from NMFS at the address above.
FOR FURTHER INFORMATION CONTACT: Susan Gerhart, 727-824-5305.
SUPPLEMENTARY INFORMATION: The reef fish fishery in the exclusive
economic
[[Page 51618]]
zone (EEZ) of the Gulf is managed under the Fishery Management Plan for
the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was
prepared by the Council and is implemented under the authority of the
Magnuson-Stevens Act by regulations at 50 CFR part 622.
Background
The Council first considered an IFQ program for the Gulf grouper
fishery in 2004. At that time, the Council anticipated future action
was needed to further control effort in the Gulf grouper fishery. At
its October 2004 meeting, the Council requested NMFS publish a control
date to discourage speculative participation in the grouper fishery for
the purpose of developing a catch history. The Council chose October
15, 2004, as the control date. NMFS published the control date in the
Federal Register on November 16, 2004 (69 FR 67106) and requested
public comment.
The Council is currently developing Amendment 29 to the FMP, which
includes a multi-species IFQ program as the preferred management
approach to address overcapacity issues and to rationalize effort in
the Gulf commercial grouper and tilefish fisheries.
Section 303A of the Magnuson-Stevens Act specifies general
requirements for limited access privilege (LAP) programs implemented in
U.S. marine fisheries. A LAP is defined as a Federal limited access
permit that provides a person the exclusive privilege to harvest a
specific portion of a fishery's total allowable catch. This definition
includes exclusive harvesting privileges allocated to participants
under IFQ programs.
Section 303A(c)(6)(D) of the Magnuson-Stevens Act outlines specific
requirements for IFQ program proposals developed by the Council. The
Magnuson-Stevens Act requires such program proposals, as ultimately
developed, be approved through referenda before they may be submitted
for review and implementation by the Secretary. The Magnuson-Stevens
Act also mandates the Secretary publish referendum guidelines to
determine procedures for initiating, conducting, and deciding IFQ
program referenda, as well as voting eligibility requirements. These
procedures and guidelines are intended to ensure referenda conducted on
IFQ program proposals are fair and equitable and will provide the
Council the flexibility to define IFQ program referenda voting
eligibility requirements on a fishery-specific basis, yet within the
constraints of the Magnuson-Stevens Act and other applicable law. NMFS
published proposed guidelines in the Federal Register on April 23, 2008
(73 FR 21893) and requested public comment.
Purpose of the Proposed Rule and the Referendum
NMFS, in accordance with the provisions of section 303A(c)(6)(D) of
the Magnuson-Stevens Act, will conduct a referendum to determine
whether the plan amendment for an IFQ program for the Gulf commercial
grouper and tilefish fisheries, as developed by the Council, should be
submitted to the Secretary for review, and possible approval and
implementation. The determination will be based on a majority vote of
eligible voters. The primary purpose of this proposed rule is to notify
potential participants in the referendum, and members of the public, of
the procedures, schedule, and eligibility requirements that NMFS would
use in conducting the referendum. The procedures and eligibility
criteria used for the purposes of conducting the referendum are
independent of the procedures and eligibility requirements in the
proposed IFQ program for the Gulf commercial grouper and tilefish
fisheries contained in Amendment 29 to the FMP. The proposed IFQ
program is being developed by the Council through the normal plan
amendment and rulemaking processes and involves extensive opportunities
for public review and comment during Council meetings, public hearings,
and public comment on any proposed rule.
Referendum Process
How Would the Referendum Be Initiated?
According to the guidelines, a Council must have held public
hearings on an IFQ program proposal, considered public comment on the
proposal, and selected preferred alternatives for the proposed IFQ
program, before submitting an initiation request letter to NMFS. The
initiation request letter would allow NMFS to initiate the referendum
process. As the above requirements have been fulfilled, the Council
submitted an initiation request letter to NMFS on August 18, 2008.
The referendum initiation request letter must include recommended
eligibility criteria for voting in the referendum, rationale for the
recommendation, any alternatives to the recommendation, and supporting
analyses for the recommendation. For a fishery managed with multi-
species permits, the initiation request letter must also include
recommended criteria for defining those permit holders who have
substantially fished the species to be included in the referendum
process.
If the referendum fails to approve the proposed IFQ program, any
request from the Council for a new referendum in the same fishery must
include an explanation of the substantive changes to the proposed IFQ
program or the changes of circumstances in the fishery that would
warrant initiation of an additional referendum.
Who Would Be Eligible to Vote in the Referendum?
Section 303A(c)(6)(D) of the Magnuson-Stevens Act establishes
criteria regarding eligibility of persons who may vote in the
referendum. For referenda conducted in New England fisheries, section
303A(c)(6)(D)(v) of the Magnuson-Stevens Act includes using income-
dependent criteria when determining voter eligibility, i.e. crew
members who derive a significant percentage of their total income from
the fishery under the proposed IFQ program would be eligible to vote in
the referendum. However, for Gulf fisheries managed with multi-species
permits, such as the Gulf commercial grouper and tilefish fisheries,
the Magnuson-Stevens Act states that those participants who have
substantially fished the species considered for the IFQ program, would
be eligible to vote in the referendum. The Council and NMFS interpret
``substantially fished'' to represent substantial contribution to the
overall fishery production in total harvest. Therefore, the Council has
established voter eligibility criteria in terms of annual grouper and
tilefish landings thresholds. The decision to identify participants in
terms of average annual harvest does not consider dependency on the
fishery. A fishery participant may not meet the average annual grouper
and tilefish landings threshold, but still be dependent on the fishery
as a source of income.
In the Council's referendum initiation request letter, the
definition of ``substantially fished'' states, ``Only commercial reef
fish permit holders, with active or renewable permits (within one year
of the grace period immediately following expiration), who have
combined average annual grouper and tilefish landings from logbooks
during the qualifying years of at least 8,000 pounds (per permit) be
considered as having substantially fished.'' The qualifying years
selected by the Council are 1999 through 2004, with an allowance for
dropping one year. Therefore, NMFS will use landings data from logbooks
submitted to and received by the Science and Research
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Director, Southeast Fisheries Science Center by December 31, 2006, for
the years 1999 through 2004, with the allowance for dropping one year,
as the sole basis to determine those permit holders that meet the
Council's eligibility criterion and will be eligible to vote in the
referendum.
Would Votes Be Weighted?
The Council has proposed assigning one vote for each permit
associated with qualifying landings from the years 1999 through 2004,
with no additional vote weighting based on catch history.
How Would Votes Be Conducted?
On or about December 1, 2008, NMFS would mail eligible voters a
ballot for each permit associated with qualifying landings from the
years 1999 through 2004. NMFS would mail the ballots and associated
explanatory information, via certified mail return receipt requested,
to the address of record indicated in NMFS' permit database for
eligible permit holders. The completed ballot must be mailed to Susan
Gerhart, Southeast Regional Office, NMFS, 263 13th Ave South, St.
Petersburg, FL 33701. A referendum ballot must be received at that
address by 4:30 p.m., eastern time, no later than 30 days after the
postmark date on the envelope containing the ballots provided by NMFS;
ballots received after that deadline would not be considered in
determining the outcome of the referendum. Although it would not be
required, voters may want to consider submitting their ballots by
registered mail.
How Would the Outcome of the Referendum Be Determined?
Vote counting would be conducted by NMFS. Approval or disapproval
of the referendum would be determined by a majority (i.e., a number
greater than half of a total) of the votes cast. NMFS would prepare a
media release announcing the results of the referendum and would
distribute the release to all Gulf reef fish permitees, including
dealers, and other interested parties within 60 days of the deadline
for receiving the ballots from eligible voters. The results would also
be posted on NMFS' Southeast Regional Office's website at https://
sero.nmfs.noaa.gov.
What Will Happen After the Referendum is Conducted?
NMFS would present the results of the referendum at the April 13-
17, 2009, Council meeting. If the referendum fails, the Council cannot
proceed with submission of Amendment 29 and regulations to implement an
IFQ program for the Gulf commercial grouper and tilefish fisheries. If
the referendum is approved, the Council would be authorized, if it so
decides, to submit Amendment 29 and regulations to NMFS for review and
possible approval and implementation of an IFQ program for the Gulf
commercial grouper and tilefish fisheries. The proposed IFQ program was
developed through the normal Council process that involved extensive
opportunities for industry and public review and input at various
Council meetings. The public will have additional opportunities to
comment during public comment periods on the plan amendment and the
proposed regulations.
Will the Referendum Be Conducted in a Fair and Equitable Manner?
The Magnuson-Stevens Act requires the Secretary to conduct
referenda for potential IFQ programs in a fair and equitable manner.
NMFS' referendum guidelines outline criteria that NMFS must consider
when reviewing the Council's referendum initiation request letter and
supporting analyses to ensure the referenda will be conducted in a fair
and equitable manner and are consistent with the national standards and
other provisions of the Magnuson-Stevens Act, and other applicable law.
NMFS has reviewed these documents from the Council and has concluded
that the proposed referendum criteria are consistent with the
guidelines. NMFS has preliminarily concluded that:
1. The Council's referendum criteria are rationally connected to
and further the objectives of the proposed IFQ program. The Council's
definition of ``substantially fished'' includes those permit holders
with both past and present participation in the grouper and tilefish
fisheries and allows those who account for the majority of grouper and
tilefish landings to vote in the referendum. The definition includes
use of catch histories from a qualifying time period that would also be
used for initial apportionment of IFQ shares in the proposed IFQ
program.
2. Referendum voting eligibility requirements are designed to
prevent any one person or single entity from obtaining an excessive
share of the voting privileges. The Council has proposed assigning one
vote for each permit associated with qualifying landings from the years
1999 through 2004, instead of weighting the votes.
3. The voter eligibility criteria enable validating a participant's
eligibility. Landings data from logbooks submitted to NMFS and NMFS
permit history records will be used to validate participants'
eligibility to vote in the referendum.
4. The time period and format proposed to conduct the referendum is
consistent with the referendum guidelines and provides for a fair and
equitable process. NMFS would mail referendum ballots to eligible
voters as soon as practicable after the final referendum rule is
published. Eligible voters would have to submit their ballots to be
received by NMFS no later than 30 days from the postmark date on the
envelope containing the ballots provided by NMFS. NMFS would tally the
votes and post the results within 60 days of receiving the ballots.
Summary Information About the Potential IFQ Program
The current management of Gulf commercial grouper and tilefish
fisheries is based on a traditional command and control approach. This
management approach has resulted in overcapitalization of the
commercial grouper and tilefish fisheries which has caused increased
derby fishing conditions and in some years has led to closures of these
fisheries prior to the end of the fishing year. The purpose of
implementing an IFQ program for the commercial grouper and tilefish
fisheries is to rationalize effort and reduce overcapacity in the
fleet. Amendment 29 to the FMP includes several management programs
that would be capable of achieving these management goals, an IFQ
program being the Council's preferred approach. The actions included in
Amendment 29 include: Initial eligibility in the IFQ program, initial
apportionment of IFQ shares, IFQ share categories, multi-use allocation
and trip allowances, transfer eligibility requirements, IFQ share
ownership caps, IFQ allocation ownership caps, adjustment to the
commercial quota, establishment and structure of an appeals process, a
``use it or lose it'' policy for IFQ shares, a cost recovery plan, and
approval of landing sites. The Council has selected its preferred
alternatives for each of these actions through the normal Council
process. If the referendum is approved, the Council, if it so decides,
may continue with the submission of Amendment 29 for review, approval,
and implementation.
Classification
This proposed 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 that this
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rule would not have a significant economic impact on a substantial
number of small entities. The basis for this certification follows:
The Magnuson-Stevens Act provides the statutory basis for the
proposed rule. The proposed rule would implement a referendum on a
potential IFQ program for the Gulf commercial grouper and tilefish
fisheries, consistent with the requirements of the Magnuson-Stevens
Act. The primary purpose of this proposed rule is to notify
potential participants in the referendum, and members of the public,
of the procedures, schedule, and eligibility requirements that NMFS
would use in conducting the referendum.
Participation in the Gulf commercial grouper and tilefish
fisheries requires a Federal reef fish permit. There are currently
1,080 Federal reef fish permits that are either active (non-expired)
or expired but renewable. Within this fleet, over the 2005-2006
fishing years, 895 vessels recorded landings of reef fish species,
valued at a total of approximately $46.3 million (2007 dollars), or
an average of approximately $52,000 per vessel. Some fleet activity
occurs in the reef fish fishery, such that some entities own
multiple permits and vessels. The extent of such activity is
unknown, however, and, for the purpose of this analysis, all permits
or vessels are assumed to be independent entities.
One class of small business entities would be directly affected
by the rule: Commercial fishing operations. The Small Business
Administration defines a small business that engages in commercial
fishing as a firm that is independently owned and operated, is not
dominant in its field of operation (including its affiliates), and
has combined annual receipts not in excess of $4.0 million (NAICS
code 114111, finfish fishing) for all its affiliated operations
worldwide. The proposed referendum qualifying criteria would allow
333 of the 1,080 entities with Federal reef fish permits to
participate in the referendum. Economic profiles of these entities
are not available. However, assuming all the reef fish revenues
discussed above were attributable to just the 333 qualifiers, which
is known with certainty to not be true, the average annual revenue
from reef fish sales, based on 2005-2006 harvest data, would be less
than $140,000 per qualifier. Thus, the average annual revenue per
qualifying entity is determined to be less than $140,000 and all
commercial entities that would qualify for participation in the
referendum are determined, for the purpose of this proposed rule, to
be small entities.
The proposed rule defines the procedures, schedule, and
eligibility requirements that NMFS would use in conducting the
referendum. There are no implementing regulations associated with
the proposed rule. Because there are no implementing regulations,
there would be no direct effects on current fishery participation,
effort, harvests, or other use of the grouper and tilefish
resources. All current entities can continue to participate in the
fishery in the manner in which they currently operate. Therefore,
all current harvests, costs, and profits would remain unchanged. Any
effects, adverse or otherwise, on small entities that participate in
the fishery would only occur if in the future an IFQ program is
implemented as a result of subsequent rulemaking. The final expected
impacts of the IFQ program are unknown since final approval of the
specific program has not occurred. Estimates of variable costs
savings attributable to the implementation of an IFQ system in the
Gulf commercial grouper and tilefish fisheries are between $2.1 and
$2.9 million per year, as well as unquantified reductions in fixed
costs and increased ex-vessel prices. Final estimates of expected
impacts will be identified should an IFQ program be proposed. Since
the proposed rule would not directly affect fishery participation or
harvest in any way, the rule would not reduce business profit for
any fishery participants or related businesses. Profits are,
therefore, not expected to be significantly reduced by the proposed
rule. On this basis, it is determined that the proposed rule would
not have a significant economic impact on a substantial number of
small entities.
Accordingly, an initial regulatory flexibility analysis was not
required or prepared. Copies of the RIR and RFAA are available (see
ADDRESSES).
IFQ program referenda conducted under section 303A(c)(6)(D)(iv) of
the Magnuson-Stevens Act are exempt from the Paperwork Reduction Act.
Authority: 16 U.S.C. 1801 et seq.
Dated: August 29, 2008.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. E8-20543 Filed 9-3-08; 8:45 am]
BILLING CODE 3510-22-S
