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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 622
          - [Docket No. 110207101-1097-01]
          - RIN 0648-BA54

# 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 that would implement a regulatory amendment to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) prepared by the Gulf of Mexico Fishery Management Council (Council). This proposed rule would increase the commercial and recreational quotas for red snapper in the Gulf of Mexico (Gulf) reef fish fishery for the 2011 fishing year, provided that NMFS determines the total allowable catch (TAC) was not exceeded in the 2010 fishing year. This rule also proposes minor revisions to codified text, including revisions to the definition of “actual ex-vessel value,” extending the maintenance window for the Gulf individual fishing quota (IFQ) programs, and removing obsolete codified text for Gulf grouper. The intended effect of this proposed rule is to help achieve optimum yield (OY) for Gulf red snapper without increasing the risk of the red snapper resource experiencing overfishing, allow for better functioning and enforcement of the Gulf IFQ programs, and to implement a technical correction to the regulations.

# DATES:

Written comments must be received on or before March 24, 2011.

# ADDRESSES:

You may submit comments on the proposed rule, identified by 0648-BA54, by any of the following methods:
      -  Electronic submissions:                          Submit electronic comments via the Federal e-Rulemaking Portal:                          http://www.regulations.gov.                          Follow the instructions for submitting comments.                    
      -  Mail:                          Rich Malinowski, 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                         *http://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.                    

                        To submit comments through the Federal e-rulemaking portal                         *http://www.regulations.gov,*                         enter “NOAA-NMFS-2011-0018” in the keyword search, then check the box labeled “Select to find documents accepting comments or submissions,” then select “Send a comment or submission.” NMFS will accept anonymous comments (enter N/A in the required field if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.                    

Comments received through means not specified in this proposed rule will not be considered.

                        Copies of the regulatory amendment, which includes an environmental assessment and a regulatory impact review, may be obtained from the Gulf of Mexico Fishery Management Council, 2203 North Lois Avenue, Suite 1100, Tampa, FL 33607; telephone 813-348-1630; fax 813-348-1711; e-mail                         *gulfcouncil@gulfcouncil.org;*                         or may be downloaded from the Council's Web site at                         *http://www.gulfcouncil.org/​.*

# FOR FURTHER INFORMATION CONTACT:

Rich Malinowski, 727-824-5308.

# SUPPLEMENTARY INFORMATION:

                    The reef fish fishery of the Gulf of Mexico is                           ( print page 9736)                        managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).                

## Background

The Southeast Data, Assessment, and Review (SEDAR) update assessment for Gulf red snapper was conducted in August 2009 (SEDAR 9), with the objective of updating the SEDAR 7 benchmark assessment conducted in 2005 (SEDAR 7). To accomplish this goal, the 2009 SEDAR assessment updated, reviewed, and incorporated into the model all data included in SEDAR 7. The 2009 SEDAR update assessment projected that overfishing had ended for the red snapper stock, and therefore, TAC for this species may be increased. The stock, however, is still overfished and under a rebuilding plan.

The rebuilding plan for Gulf red snapper was outlined in Amendment 22 to the FMP, and implemented through regulations in 2005. The final rule implementing Amendment 22 to the FMP became effective on July 5, 2005 (70 FR 32266, June 2, 2005). Actions taken through Joint Amendment 27 to the FMP and Amendment 14 to the FMP for the Shrimp Fishery of the Gulf of Mexico (implemented February 28, 2008, 73 FR 5117, published January 29, 2008) revised the red snapper rebuilding strategy with the intent to end overfishing by 2009 or 2010, and to rebuild red snapper by 2032 to the biomass levels that can support harvest of the maximum sustainable yield (MSY). The revised rebuilding plan outlined that after 2010, TAC would be increased consistent with a fishing mortality rate that produces MSY.

In response to the rebuilding plan, the Council's Scientific and Statistical Committee (SSC) recommended 3 years of increasing acceptable biological catch (ABC) levels from 2010 through 2012. The ABC level for red snapper set by the SSC is 25-percent below the overfishing limit, which is also the rebuilding yield, to account for scientific uncertainty in the numbers. This buffer further increases the likelihood that red snapper will be rebuilt by 2032. In 2010, however, the Council and NMFS raised the TAC for 2010 only.

In February 2010, the Council submitted a regulatory amendment to set the red snapper TAC for 2010 at 6.945 million lb (3.150 million kg), which was the ABC recommended by the SSC. The Council chose not to set TACs beyond 2010 because of scientific uncertainty about future levels of red snapper stock, and concern regarding the likelihood of the recreational sector to overrun the quota. NMFS published a final rule on May 3, 2010 (75 FR 23186), implementing the February 2010 regulatory amendment. That rule set the commercial quota for Gulf red snapper at 3.542 million lb (1.607 million kg), and the recreational quota at 3.403 million lb (1.544 million kg). The final rule also included a closure date for the 2010 recreational sector based on estimates of when the recreational quota was projected to be caught. NMFS projected that the recreational sector quota for red snapper would be met after a 53-day fishing season, and on July 24, 2010, NMFS closed the recreational sector for red snapper. The Magnuson-Stevens Act requires NMFS to close the recreational red snapper sector in Federal waters when the quota is met or projected to be met.

                    Although NMFS had already projected a recreational season for red snapper for the 2010 fishing year, an unforeseen event occurred in April 2010 that contributed to the recreational quota not being met by the closure date. On April 20, 2010, the Deepwater Horizon MC252 deep-sea drilling rig exploded and sank off the coast of Louisiana. Because of the resulting oil spill, approximately one-third of the Gulf was closed to fishing for much of the summer. The direct loss of fishing opportunities due to the closure, plus the reduction in tourism throughout the Gulf coast, resulted in a much lower catch than had been projected. In a report dated August 13, 2009 (                    *http://sero.nmfs.noaa.gov/​sf/​pdfs/​2010_​Recreational_​Red_​Snapper_​Quota_​Closure_​Analysis_​Fall_​Reopening.pdf*), NMFS estimated 2.3 million lb (1.1 million kg) of the 3.4 million lb (1.5 million kg) recreational quota remained unharvested. Consequently, on October 1, 2010, the Council and NMFS reopened the recreational red snapper season for 24 more fishing days (eight consecutive weekends—Fridays, Saturdays, and Sundays—through November 21, 2010). The reopening of the recreational red snapper season was intended to provide fishermen the opportunity to harvest the recreational red snapper quota and achieve the OY for the fishery.                

At present, there is no evidence that the oil spill has adversely impacted the adult stock of red snapper, and the fishing mortality rate of red snapper remains below the overfishing threshold. The next SEDAR benchmark stock assessment currently scheduled for Gulf red snapper is in 2014.

## Management Measures Contained in This Proposed Rule

This Gulf red snapper regulatory amendment would set the TAC for 2011 and subsequent fishing years at 7.185 million lb (3.259 million kg), provided that the 2010 TAC has not been exceeded. Based on the current commercial and recreational allocations (51-percent commercial and 49-percent recreational), the TAC would be implemented through this proposed rule by setting the Gulf red snapper commercial quota at 3.664 million lb (1.662 million kg), and the recreational quota at 3.521 million lb (1.544 million kg). However, if NMFS determines the combined commercial and recreational quota from 2010 was exceeded, NMFS will maintain the quota from 2010 in the 2011 fishing year. If this is the case, the Assistant Administrator will file a notification with the Office of the Federal Register to announce the commercial and recreational quotas will remain at the quotas of the 2010 fishing year.

The Magnuson-Stevens Act requires NMFS to close the recreational red snapper sector in Federal waters when the quota is met or projected to be met. NMFS will set the recreational season length for 2011 after finalized 2010 recreational landings data are available and before the season opens on June 1, 2011. NMFS may announce the recreational red snapper season in the final rule associated with this action.

The red snapper management measures contained in this proposed rule would achieve the goal of National Standard 1 of the Magnuson-Stevens Act, which states that conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield for the fishery.

## Additional Measures Contained in This Proposed Rule

### IFQ Program Changes

                    In § 622.2 of the current regulations, “actual ex-vessel value” is defined as the total monetary sale amount a fisherman receives from IFQ landings from a registered IFQ dealer. Many Gulf reef fish IFQ dealers, however, are reporting very low ex-vessel prices for IFQ fish because trip expenses and transferred (leased) allocation are deducted from the price paid by the dealer. Through this rulemaking, NMFS proposes to revise the definition of “actual ex-vessel value” in § 622.2 of the regulations, so that actual ex-vessel value represents the price paid per pound of fish before any deductions are made for transferred (leased) allocation and goods and                           ( print page 9737)                        services (                    *e.g.,*                     bait, ice, fuel, repairs, machinery replacement, etc.). This revision will allow NMFS to more accurately analyze the total value of the Gulf red snapper and grouper and tilefish fisheries, and will more appropriately align the definition with the original intent of the IFQ programs.                

Sections 622.16 and 622.20 of the current regulations restrict IFQ transactions during a 12-hour maintenance window at year-end. The regulations state that all transactions must be completed by 6 p.m. eastern time December 31 and may resume at 6 a.m. eastern time January 1 of the next year. This maintenance window is necessary to provide NMFS time to reconcile IFQ accounts, adjust allocations for the upcoming fishing year if the commercial quotas for IFQ managed species have changed, and to update shares and allocations for the upcoming fishing year. This maintenance window, however, is too short to complete all of the necessary changes and updates to the IFQ program prior to the start of the next fishing year. This rulemaking proposes to extend the maintenance window an additional 8 hours to allow for more time to conduct end-of-year maintenance. It also clarifies how fishermen can submit an IFQ landing notification during the maintenance window. This revision is not expected to have any effects on fishermen or dealers. During the first 4 years of the Red Snapper IFQ program and first year of the Grouper-Tilefish IFQ program, no landing transactions were completed between 6 a.m. and 2 p.m. on January 1. Additionally, IFQ participants may still submit an advanced notice of landing during the maintenance window.

### Removing Obsolete Regulations

In Amendment 30B to the FMP, NMFS removed the February 15-March 15 seasonal closure of the commercial sector of the Gulf reef fish fishery for gag, red grouper, and black grouper through a final rule that published April 16, 2009 (74 FR 17603). When the February 15-March 15 closure was effective, the sale and purchase of gag, red grouper, and black grouper was prohibited, as specified in § 622.45(c)(4). However, NMFS inadvertently did not remove § 622.45(c)(4) in the final rule for Amendment 30B. This rulemaking proposes to remove this obsolete paragraph.

These additional measures are unrelated to the actions contained in the red snapper regulatory amendment.

## Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the regulatory amendment, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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 proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows:

The preamble of this proposed rule provides a statement of the need for and objectives of this rule, and it is not repeated here. The Magnuson-Stevens Act provides the statutory basis for this proposed rule.

This proposed rule, if implemented, would be expected to directly affect commercial and for-hire fishing vessels that harvest red snapper in the Gulf of Mexico and federally permitted dealers who purchase IFQ species. Under the Regulatory Flexibility Act (RFA), an agency must complete an Initial Regulatory Flexibility Analysis (IRFA) with a proposed regulation if the proposed regulation is expected to have a significant economic impact on a substantial number of small entities. The Small Business Administration administers those provisions of the RFA, and has established size criteria for all major industry sectors in the U.S. including fish harvesters. A business involved in fish harvesting is classified as a small business if it 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. For for-hire vessels, the other qualifiers apply and the revenues threshold is $7.0 million (NAICS code 713990, recreational industries).

Based on logbook records, for the period 2007-2008, an average of 312 commercial vessels per year recorded red snapper landings in the Gulf. The total average annual ex-vessel revenues from all logbook-recorded harvests from all species for these vessels during this period was approximately $28.943 million (2008 dollars), of which approximately $9.435 million came from red snapper. The average annual total revenue per vessel for these commercial vessels during this period was approximately $93,000 (2008 dollars).

Some fleet activity occurs in the Gulf commercial reef fish fishery. Based on permit data, the maximum number of permits reported to be owned by the same entity is six, though additional permits may be linked through other affiliations which cannot be identified with current data. Using the average revenue per vessel provided above, the average annual estimated maximum combined revenues for this entity would be approximately $558,000 (2008 dollars).

The for-hire fleet in the Gulf is comprised of charter vessels, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. A Gulf reef fish for-hire permit is required to harvest red snapper in the Gulf. On December 17, 2010, there were 1,355 valid or renewable Gulf reef fish for-hire permits. A valid permit is a non-expired permit. Expired permits may not be actively fished, but are renewable for up to one year after expiration. Although the for-hire permit does not distinguish between headboats and charter vessels, an estimated 79 headboats and 1,276 charter vessels operate in the Gulf. It cannot be determined with available data how many of these for-hire vessels harvest red snapper, so all permitted vessels are assumed to comprise the universe of potentially affected for-hire vessels. The average charter vessel is estimated to earn approximately $88,000 (2008 dollars) in annual revenues, while the average headboat is estimated to earn approximately $461,000 (2008 dollars).

For seafood dealers, the SBA uses an employee threshold rather than a receipts threshold, or 100 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. On January 19, 2011, 190 dealers possessed a Federal permit to purchase reef fish species. All dealers with a Federal reef fish permit are eligible to obtain an account required to purchase IFQ species, however, on January 19, 2011, only 169 dealers had an IFQ account. No current information is available on the employment profile of these dealers.

                    Based on the average revenue estimates provided above, all commercial and for-hire vessels expected to be directly affected by this proposed rule are determined for the purpose of this analysis to be small business entities. Although no current information is available on the                           ( print page 9738)                        employment profile of the dealers expected to be directly affected by this rule, if enacted, all dealers are determined for the purpose of this analysis to be small business entities.                

This proposed rule would not establish any new reporting, record-keeping or other compliance requirements. No duplicative, overlapping, or conflicting Federal rules have been identified. This proposed rule, if implemented, is expected to result in an increase in commercial red snapper harvests and a longer red snapper recreational fishing season relative to the season that would occur without a TAC increase (the status quo). The increase in commercial red snapper harvests would be expected to increase commercial annual ex-vessel revenues to the whole commercial fleet by approximately $400,000, and a longer recreational red snapper fishing season would be expected to increase annual net operating revenues to the whole for-hire fleet by up to $225,000. Therefore, all of the expected direct economic impacts on small entities of this proposed rule, if implemented, are positive. No reduction in the revenues or profits of affected entities would be expected.

The proposed revision to the definition of “actual ex-vessel value” to mean price paid per pound of fish before any deductions are made for transferred (leased) allocation and goods and services, would be expected to affect fishermen and dealers who report ex-vessel prices net of cost deductions. Because cost recovery fees are based on the ex-vessel revenues, the proposed revision to the definition of ex-vessel value would be expected to result in an increase in cost recovery fees, potentially reducing revenues to both fishermen and dealers. While dealers would be expected to pass a portion of any increased cost recovery fees onto fishermen, thereby reducing fishing revenues, the competitive market may require dealers to absorb some portion of these increased fees.

                    The number of affected entities and the magnitude of effect cannot be determined with certainty at this time, but would be expected to vary by IFQ species and assumptions on the appropriate price threshold (                    *i.e.,*                     the baseline price for comparison). For example, based on 2010 red snapper IFQ data, if reported ex-vessel prices below the average ($3.48/lb), median ($4.00/lb), and mode ($4.25/lb) prices are adjusted to the respective threshold, the proposed revision would result in an increase in cost recovery fees, and total reduced revenues to all dealers and fishermen combined, of approximately $57,000, $76,000, and $88,000 under the respective thresholds. In 2010, assuming a threshold price of $3.00/lb, 29 dealers and 128 vessels recorded transactions with prices less than $3.00/lb. Comparable results for other IFQ species are approximately $13,000 to $20,000 and 9 dealers and 9 vessels ($2.00/lb threshold price; the average reported price was $3.14/lb) for red grouper; approximately $1,000 to $4,000 and 19 dealers and 42 vessels ($3.00/lb threshold price; the average reported price was $4.22/lb) for gag; approximately $6,000 to $3,000 and 11 dealers and 32 vessels ($3.00/lb threshold price; the average reported price was $3.36/lb) for deepwater grouper (the range in effects decreases when comparing from average price to median price to mode price for this group because the prices decline in that order, unlike the case for most other species); approximately $1,000 to $3,000 and 29 dealers and 55 vessels ($3.00/lb threshold price; the average reported price was $4.08/lb) for other shallow water grouper; and approximately $1,000 to a few hundred dollars and 16 dealers and 44 vessels ($1.00/lb threshold price; the average reported price was $1.83/lb) for tilefish. Overlap in affected dealers and vessels would be expected, but has not been tabulated.                

Thus, the proposed revision to the definition of “actual ex-vessel value,” would be expected to reduce revenues to fishermen and dealers. However, the proposed revision is consistent with the intent of the original requirement to report ex-vessel values and remit cost recovery fees based on said value. The proposed revision would simply result in fishermen and dealers reporting the values and remitting the cost recovery fees they have been expected to provide since the implementation of the IFQ program. Therefore, none of the expected effects constitute new direct adverse economic effects on the affected entities.

The proposed extension of the maintenance window would not be expected to have any adverse effects on fishermen or dealers because no transactions have historically been completed to date during the affected period. Finally, the proposed removal of obsolete text in the regulations is an administrative action and would not affect any small entities.

Because this proposed rule, if implemented, is not expected to have any direct adverse economic impact on any small entities, an initial regulatory flexibility analysis is not required and none has been prepared.

# List of Subjects in 50 CFR Part 622

      - Fisheries
      - Fishing
      - Puerto Rico
      - Reporting and recordkeeping requirements
      - Virgin Islands

Dated: February 14, 2011.

Samuel D. Rauch III,

Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

# PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

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

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

2. In § 622.2, the definition of “actual ex-vessel value” is revised to read as follows:

§ 622.2 

* * * * *

*Actual ex-vessel value*                             means the total monetary sale amount a fisherman receives per pound of fish for IFQ landings from a registered IFQ dealer before any deductions are made for transferred (leased) allocation and goods and services (e.g. bait, ice, fuel, repairs, machinery replacement, etc.).                        

* * * * *

3. In § 622.16, paragraph (c)(5) is revised to read as follows:

§ 622.16 

* * * * *

(c) * * *

                            (5)                             *Restricted transactions during the 20-hour online maintenance window.*                             All electronic IFQ transactions must be completed by December 31 at 6 p.m. eastern time each year. Electronic IFQ functions will resume again on January 1 at 2 p.m. eastern time the following fishing year. The remaining 6 hours prior to the end of the fishing year, and the 14 hours at the beginning of the next fishing year, are necessary to provide NMFS time to reconcile IFQ accounts, adjust allocations for the upcoming year if the commercial quotas for Gulf red snapper have changed, and update shares and allocations for the upcoming fishing year. No electronic IFQ transactions will be available during these 20 hours. An advance notice of landing may still be submitted during the 20-hour maintenance window by using the vessel's VMS unit or calling IFQ Customer Service at 1-866-425-7627.                        

* * * * *
      ( print page 9739)    
4. In § 622.20, paragraph (c)(5) is revised to read as follows:

§ 622.20 

* * * * *

(c) * * *

                            (5)                             *Restricted transactions during the 20-hour online maintenance window.*                             All electronic IFQ transactions must be completed by December 31 at 6 p.m. eastern time each year. Electronic IFQ functions will resume again on January 1 at 2 p.m. eastern time the following fishing year. The remaining 6 hours prior to the end of the fishing year, and the 14 hours at the beginning of the next fishing year, are necessary to provide NMFS time to reconcile IFQ accounts, adjust allocations for the upcoming year if the commercial quotas or catch allowances for Gulf groupers and tilefishes have changed, and update shares and allocations for the upcoming fishing year. No electronic IFQ transactions will be available during these 20 hours. An advance notice of landing may still be submitted during the 20-hour maintenance window by using the vessel's VMS unit or calling IFQ Customer Service at 1-866-425-7627.                        

* * * * *

5. In § 622.42, paragraphs (a)(1)(i) and (a)(2)(i) are revised to read as follows:

§ 622.42 

* * * * *

(a) * * *

(1) * * *

                            (i)                             *Red snapper*                            —(A) For fishing year 2010—3.542 million lb (1.607 million kg), round weight.                        

(B) For fishing year 2011—3.664 million lb (1.662 million kg), round weight, provided that the combined commercial and recreational quota from the prior fishing year is not exceeded. If landings, as estimated by the SRD, indicate the combined quota is exceeded, then the AA will file a notification with the Office of the Federal Register to maintain the commercial quota at the quota of the prior fishing year.

* * * * *

(2) * * *

                            (i)                             *Recreational quota for red snapper*                            —(A) The 2010 recreational quota for red snapper is 3.403 million lb (1.544 million kg), round weight.                        

(B) The 2011 recreational quota for red snapper is 3.521 million lb (1.597 million kg), round weight, provided that the combined commercial and recreational quota from the prior fishing year is not exceeded. If landings, as estimated by the SRD, indicate the combined quota is exceeded, then the AA will file a notification with the Office of the Federal Register to maintain the recreational quota at the quota of the prior fishing year.

* * * * *

§ 622.45 

6. In § 622.45, paragraph (c)(4) is removed.

[FR Doc. 2011-3735 Filed 2-18-11; 8:45 am]

BILLING CODE 3510-22-P