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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 622
          - [Docket No. 040804227-4227-01; I.D. 072604A]
          - RIN 0648-AP02

# AGENCY:

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

# ACTION:

Proposed rule; request for comments.

# SUMMARY:

NMFS issues proposed regulations to implement Amendment 22 to the Fishery Management Plan (FMP) for the Reef Fish Resources of the Gulf of Mexico (Amendment 22) prepared by the Gulf of Mexico Fishery Management Council (Council). These proposed regulations would provide the regulatory authority to implement a mandatory observer program for selected commercial and for-hire (charter vessel/headboat) vessels in the Gulf of Mexico reef fish fishery. The observer program would be an important component of a standardized methodology to collect bycatch information in the fishery. In addition, consistent with the requirements of the Magnuson-Stevens Act, Amendment 22 would establish a stock rebuilding plan, biological reference points, and stock status determination criteria for red snapper in the Gulf of Mexico. The intended effect of these proposed regulations is to end overfishing and rebuild the red snapper resource.

# DATES:

Written comments on the proposed rule must be received no later than 5 p.m., eastern time, on January 7, 2005.

# ADDRESSES:

You may submit comments on the proposed rule by any of the following methods:
      - E-mail: 0648-AP02.Proposed@noaa.gov . Include in the subject line the following document identifier: 0648-AP02.                    
      - Federal e-Rulemaking Portal: http://www.regulations.gov . Follow the instructions for submitting comments.                    
      - Mail: Peter Hood, Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702.
      - Fax: 727-570-5583, Attention: Phil Steele.
      ( print page 68120)    
                        Copies of Amendment 22, which includes a Regulatory Impact Review (RIR), Initial Regulatory Flexibility Analyses (IRFA), and a Final Supplemental Environmental Impact Statement may be obtained from the Gulf of Mexico Fishery Management Council, The Commons at Rivergate, 3018 U.S. Highway 301 North, Suite 1000, Tampa, FL 33619-2266; telephone: 813-228-2815; fax: 813-225-7015; e-mail:                         *gulfcouncil@gulfcouncil.org*. Copies of Amendment 22 can also be downloaded from the Council's website at                         *www.gulfcouncil.org*.                    

                        Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule must be submitted to Robert Sadler, Southeast Region, NMFS, at the above address, and to                         *David_Rostker@omb.eop.gov*, or 202-395-7285 (fax).                    

# FOR FURTHER INFORMATION CONTACT:

                        Peter Hood, telephone: 727-570-5305, fax: 727-570-5583, e-mail:                         *peter.hood@noaa.gov*.                    

# SUPPLEMENTARY INFORMATION:

The reef fish fishery in the exclusive economic zone (EEZ) of the Gulf of Mexico is managed under the FMP. The FMP was prepared by the Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

## Background

                    In May 2001, the Council submitted to NMFS a regulatory amendment to the FMP, based on NMFS's 1999 stock assessment, that proposed to redefine biological reference points and status determination criteria for the red snapper stock and proposed a plan to rebuild the red snapper stock to the stock biomass capable of producing maximum sustainable yield on a continuous basis (B                    MSY                    ) by the year 2032. The rebuilding plan proposed in the regulatory amendment was based on analyses provided by NMFS in 2000. Because the incidental catch of juvenile (age 0-age 1) red snapper in the shrimp trawl fishery comprises the vast majority of the total fishing mortality on red snapper, the success of the rebuilding plan is primarily dependent upon reductions in shrimp trawl bycatch.                

                    According to NMFS's stock assessment, the number of juvenile red snapper taken incidental to the shrimp trawl fisheries accounted for about 90 percent of the total red snapper harvest prior to the implementation of a April 14, 1998, rule (63 FR 1813) requiring the use of bycatch reduction devices (BRDs), which are estimated to have reduced shrimp trawl bycatch mortality of red snapper by 40 percent. However, the Council's Reef Fish Stock Assessment Panel indicated even greater reductions would be required to rebuild the red snapper stock to B                    MSY                     within the maximum recommended 31-year time frame, even if the directed red snapper fishery were eliminated.                

NMFS returned the red snapper regulatory amendment to the Council in July 2002, identifying the need to further explore alternative rebuilding plans based on realistic expectations for further reductions in shrimp trawl bycatch, and to more fully evaluate the impacts of these alternatives in a Draft Supplemental Environmental Impact Statement. Additionally, NMFS suggested the need to better address the bycatch provisions of the Magnuson-Stevens Act. Amendment 22 to the Reef Fish FMP was developed in response to NMFS's suggestions.

## Biological Reference Points and Stock Status Determination Criteria Proposed in Amendment 22

Consistent with the requirements of the Magnuson-Stevens Act, Amendment 22 would establish the following biological reference points and stock status criteria for Gulf of Mexico red snapper: maximum sustainable yield (MSY); optimum yield (OY); maximum fishing mortality threshold (MFMT) (the fishing mortality rate which, if exceeded, would constitute overfishing); and minimum stock size threshold (MSST) (the stock size below which the stock would be considered overfished).

                    MSY for red snapper would equal the yield associated with fishing at F                    MSY                     (currently estimated at 0.092); thus, MSY would equal 41.13 million lb (18.66 million kg) whole weight (wwt), assuming low maximum recruitment and an initial steepness of 0.90 for the stock-recruitment relationship.                

                    Until the red snapper stock recovers to the target level, B                    MSY                    , the harvest for red snapper would be defined as consistent with the rebuilding strategy selected in Amendment 22. After achieving B                    MSY                    , the OY for red snapper would correspond to a fishing mortality rate (F                    OY                    ) defined as F                    OY                     = 0.75*F                    MSY                     = 0.069.                

                    Red snapper MSST would equal (1-M) *B                    MSY                     = 2.453 billion lb (1.112 billion kg) wwt where B                    MSY                     = 2.726 billion lb (1.237 billion kg) wwt and M (natural mortality) = 0.1.                

                    Red snapper MFMT would be equal to F                    MSY                     which is currently estimated at 0.092.                

## Stock Rebuilding Plan

                    The Magnuson-Stevens Act requires that rebuilding plans establish a schedule for rebuilding overfished stocks that is as short as possible, and not to exceed 10 years, except in cases where the biology of the stock, other environmental conditions, or management measures under an international agreement dictate otherwise. The National Standard Guidelines provide a formula for calculating the maximum rebuilding schedule in situations where it would take 10 years or longer to rebuild a stock to B                    MSY                     in the absence of fishing mortality. Applied to the red snapper stock, this formula defines the maximum recommended rebuilding schedule as 31 years (e.g., time it would take to rebuild the stock to B                    MSY                     in the absence of fishing mortality (12 years) plus one mean generation time (19.6 years)). Implicit to establishing a rebuilding plan for a stock, overfishing will end sometime during the rebuilding period. When overfishing ends depends on the type of rebuilding schedule selected.                

For Gulf of Mexico red snapper, the rebuilding plan would initially maintain total allowable catch (TAC) at 9.12 million lb (4.14 million kg) wwt, end overfishing between 2009 and 2010, and rebuild the red snapper stock by 2032. The status of the stock would be reviewed and management measures would be adjusted, as necessary, based upon periodic stock assessments. The next stock assessment is scheduled for late 2004. Annual landings also would be monitored to ensure quotas are not exceeded.

## Bycatch Reporting Methodology

The Council is required by the Magnuson-Stevens Act to establish a standardized bycatch reporting methodology for Federal fisheries. Current regulations require commercial and recreational for-hire participants in the Gulf of Mexico reef fish fishery who are selected by the Southeast Science and Research Director (SRD) to maintain and submit a fishing record, including bycatch information, on forms provided by the SRD.

                    To enhance current bycatch reporting, this proposed rule would provide for the establishment of a mandatory observer program for the reef fish fishery. NMFS would develop a procedure for the random selection of vessels for which a Federal commercial vessel permit or charter vessel/headboat                           ( print page 68121)                        permit for Gulf of Mexico reef fish has been issued. Vessels selected by NMFS would be required to carry a NMFS-approved observer. The owner or operator of a vessel selected for observer coverage would be required to provide food and accommodations for the observer and provide the observer access to the vessel's equipment, personnel, and physical space sufficient to carry out the observer's duties. The costs associated with observer coverage, other than food and accommodations, would be borne by NMFS. In selecting vessels, NMFS would consider the suitability of the vessel for observer coverage and would ensure that the universe of vessels included is representative of all statistical sub-zones in the Gulf of Mexico. Vessel permits would not be renewed for vessels that fail or refuse to carry observers in accordance with this process. NMFS would initiate implementation of the observer program as soon as sufficient funding for the program is obtained.                

In addition, to further improve bycatch reporting for the headboat sector of the Gulf of Mexico reef fish fishery, NMFS's Marine Recreational Fisheries Statistical Survey (MRFSS) would be enhanced by including headboats, using the same sampling methodology as currently used for charter vessels. The existing MRFSS catch-and-effort program would be continued to collect bycatch information from the private recreational sector of the fishery.

## Request for Comment

Under the Magnuson-Stevens Act, the Council is responsible for developing fishery management plans and amendments necessary for the conservation and management of fisheries within its area of jurisdiction. In formulating proposed management recommendations, the Council relies upon the expertise and informed judgement of its members and staff; development and evaluation of scientific information by its scientific and statistical committees; advice from its advisory panels that are comprised of balanced representation from user groups and interested constituents; and substantial public input resulting from the public's participation at Council meetings, public hearings, and during public comment periods on amendments and associated rules. After considering all of this information and making any appropriate revisions, the Council approves the fishery management plan or amendment for submission to the Secretary of Commerce (Secretary) for review and approval, partial approval, or disapproval. The Secretary's decision regarding approvability is based on a number of factors including careful consideration of public comments and consistency of the proposed action with national standards, other provisions of the Magnuson-Stevens Act, and other applicable law.

The national standards in the Magnuson-Stevens Act state the following:

IN GENERAL.-Any fishery management plan prepared, and any regulation promulgated to implement any such plan, pursuant to this title shall be consistent with the following national standards for fishery conservation and management:

1. Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.

2. Conservation and management measures shall be based upon the best scientific information available.

3. To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination.

4. Conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges.

5. Conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose.

6. Conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches.

7. Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication.

8. Conservation and management measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities.

9. Conservation and management measures shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.

10. Conservation and management measures shall, to the extent practicable, promote the safety of human life at sea.

NMFS is requesting comments on whether this proposed rule meets the national standards.

## Classification

At this time, NMFS has not determined that Amendment 22, which this proposed rule would implement, is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. In making that determination, NMFS will take into account the data, views, and comments received during the comment period on Amendment 22 (August 3, 2004, 69 FR 46518) and the comment period on this proposed rule.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

                    An IRFA has been prepared, as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A copy of the full analysis is available from the Council office (see                     **ADDRESSES**                    ). A summary of the analysis follows.                

The Magnuson-Stevens Act provides the statutory basis for the proposed rule. Consistent with the requirements of the Magnuson-Stevens Act, the proposed rule would establish biological reference points and stock status criteria for red snapper, establish a rebuilding plan for the overfished red snapper stock, develop an observer program for the reef fish fishery with implementation being contingent on sufficient funding, and enhance the MRFSS through the inclusion of headboats in that survey.

The objectives of the proposed rule are to bring management of the red snapper fishery into compliance with requirements of the Magnuson-Stevens Act, to address the overfished and overfishing conditions of the red snapper stock, and to establish a standardized methodology to collect bycatch information in the fishery.

                    The proposed rule would impact both the commercial and recreational participants in the Gulf reef fish fishery. At present, both the commercial and for-hire reef fish vessel permits are under a moratorium, and no new permits will be issued during the moratorium. There are 1,158 vessels with active commercial reef fish permits. Of these commercial permitees, 131 entities hold Class 1 licenses that allow a vessel trip limit of up to 2,000 lb (907 kg) of red snapper, and approximately 357 entities hold Class 2 licenses that allow a trip limit of up to 200 lb (91 kg) of red snapper. There are 1,515 for-hire vessels with permits for both reef fish and coastal migratory pelagics. Also, there are 431 dealers who purchase reef fish from various vessels in the Gulf of Mexico. The proposed rule is expected to affect                           ( print page 68122)                        all these reef fish commercial and for-hire vessels and dealers.                

According to a survey of commercial fishing vessels in the Gulf, average gross receipts ranged from $24,095 for low-volume vertical line vessels to $116,989 for high-volume longline vessels. Also, according to a survey of reef fish processors in the Southeast, employment by reef fish processors totaled 700 individuals, both part- and full-time. Given this number and the likelihood that fish dealers are generally of smaller size than processors, employment by any of the affected dealers is very likely to be less than 100 individuals. Furthermore, according to two surveys of for-hire vessels in the Gulf, average gross receipts for charterboats range from $58,000 in the eastern Gulf of Mexico to $81,000 in the western Gulf while gross receipts for headboats range from $281,000 in the eastern Gulf to $550,000 in the western Gulf. A fishing business is considered a small entity if it is independently owned and operated and is not dominant in its field of operation, and if it has annual receipts not in excess of $3.5 million in the case of commercial harvesting entities or $6.0 million in the case of for-hire entities, or if it has fewer than 500 employees in the case of fish processors, or fewer than 100 employees in the case of fish dealers. Given these data on earnings and employment, all of the business entities affected by the proposed rule are determined to be small business entities.

Specification of sustainable fishing parameters has no economic impacts on small entities because it does not alter the current harvest or use of component stocks. The specification merely establishes benchmarks for fishery and resource evaluation from which future management actions would be based. As benchmarks, these parameters do not limit how, when, where, or with what frequency participants in the fishery engage the resource. For rebuilding the red snapper stock, a TAC of 9.12 million lb (4.14 million kg) is selected, and because this is the same as the current TAC, this measure has no impacts on small entities. The preferred alternative for bycatch reporting is an observer program for the commercial and for-hire reef fish fishery. An observer program would be new to the Gulf of Mexico reef fish fishery and is expected to potentially affect all commercial and for-hire vessels, although each year only a sample of these vessels would be selected to carry observers. An observer program can lessen the reporting burden for bycatch to the extent that this task would be carried out by a trained observer. Assuming the observer program covers 8 percent of commercial vessel trips, 1 percent of charterboat trips, and 4 percent of headboat trips, total costs would be about $5.92 million annually, including the total costs for all observers' food and accommodations, which are estimated to range between $98,640 and $123,300 annually. Owners of vessels selected for observer coverage would be responsible only for the cost associated with providing food and accommodations for the observer. NMFS would cover the cost of providing the observer. Because there is no expected reduction in harvests, and the bycatch reporting through an observer program would be imposed only on vessels, dealers are not expected to be adversely affected by the proposed rule.

There are four basic alternatives considered for the rebuilding plan; two are constant catch strategies and two are constant fishing mortality rate (F) strategies. The no action alternative is not considered a viable alternative, because a rebuilding plan has to be instituted for the overfished red snapper stock. Under the constant catch strategies, the preferred alternative would hold TAC constant at 9.12 million lb (4.14 million kg), while the other alternative would keep TAC constant at 6.0 million lb (2.7 million kg). For the constant F strategies, one alternative would hold the TAC at 9.12 million lb (4.14 million kg) for a period of years and gradually increase it over time, while the other would hold the TAC constant at 6.0 million lb (2.7 million kg) for a period of years and increase it over time. In essence, the other significant alternative to the preferred TAC of 9.12 million lb (4.14 million kg) is a TAC of 6.0 million lb (2.7 million kg). Over the first 5 years, this lower TAC would reduce commercial vessel profits by $3.92 million and for-hire vessel profits by $18.35 million. The profit reduction for dealers cannot be estimated. Thus, the preferred alternative would enable the achievement of the goal to rebuild the stock and at the same time would minimize the impacts on small entities.

Six alternatives are considered for reporting bycatch in the commercial and for-hire reef fish fishery. Alternative 1 is the no action alternative. Alternative 2 requires all permitted reef fish vessels in the Gulf of Mexico to participate in an electronic logbook program that includes bycatch reporting. Alternative 3 is similar to Alternative 2, but the electronic logbook program would be administered only to a randomly selected sample of reef fish permitted vessels. Alternative 4 would establish an observer program for randomly selected reef fish permitted vessels. Alternative 5 would expand the current bycatch reporting program for commercial reef fish and mackerel permitted vessels to cover 100 percent of such vessels and all federally permitted for-hire vessels. Alternative 6 would enhance the MRFSS to include the headboat sector using the same sampling methodology as for charter vessels.

Among the alternatives, Alternative 1 (no action) is the least costly as it involves no additional burden on the fishermen and the Federal government other than what is currently being incurred in generating bycatch information. The cost of Alternative 2 would range from $0.87 million to $2.9 million, with burden time ranging from 3,764 to 4,053 hours for commercial vessels and from $1.16 million to $3.88 million, with burden time of 89,240 hours for for-hire vessels. The cost of Alternative 3 is proportional to that of Alternative 2 based on sample size. Alternative 4 is estimated to cost $5.92 million per year. Alternative 5 would affect 926 additional commercial vessels, with burden time ranging from 3,009 to 3,241 hours, and 1,552 for-hire vessels, with burden time of about 89,240 hours. Alternative 6 would mainly affect headboat vessels. Using the same sampling technique as for charter vessels, approximately 85 headboats would be sampled per wave (two-month period).

The monetary outlay of a bycatch reporting requirement may be shared by the industry and government, or borne solely by either entity. If the cost were borne solely by the industry, an observer program would have the largest negative impacts on small entities. An observer program paid for by the government would also be expected to cost fishery participants less than the logbook alternatives, even if an electronic logbook program were selected and the logbook paid for by the government. The reason for this is that a logbook program, electronic or otherwise, entails additional reporting and record-keeping activities that would still have to be incurred by the fishery participants. Such activities are less likely to increase under an observer program since most would be conducted by the observer. Under the proposed observer program, an owner of a vessel selected for observer coverage would be responsible only for the cost associated with providing food and accommodations for the observer. NMFS would cover the cost of providing the observer.

                    Notwithstanding any other provision of law, no person is required to respond                           ( print page 68123)                        to, and no person shall be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number.                

This rule contains a collection-of-information requirement subject to review and approval by OMB to the PRA. This requirement has been submitted to OMB for approval. This requirement involves notification requirements for the purpose of accommodating observer coverage. Public reporting burden for this collection of information is estimated to average 5 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

                    NMFS seeks comments regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility; the accuracy of the burden estimates; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS and OMB (see                     **ADDRESSES**                    ).                

# List of Subjects in 50 CFR Part 622

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

Dated: November 16, 2004.

Rebecca Lent,

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 § 622.4, the second sentence of paragraph (h)(1) introductory text and the first sentence of paragraph (h)(1)(ii) are revised to read as follows:

§ 622.4

* * * * *

(h) * * *

(1) * * * In the interim years, renewal is automatic (without application) for a vessel owner or a dealer who has met the specific requirements for the requested permit, license, or endorsement; who has complied with all reporting and data collection requirements, including observer requirements, under the Magnuson-Stevens Act; and who is not subject to a sanction or denial under paragraph (j) of this section. * * *

* * * * *

(ii) * * * If the RA's notification indicates that the owner's or dealer's permit, license, or endorsement is ineligible for automatic renewal, the notification will specify the reasons and, if applicable, will provide an opportunity for correction of any deficiencies. * * *

* * * * *

3. In § 622.8, paragraph (a)(3) is added and paragraphs (c)(4) and (c)(5) are revised to read as follows:

§ 622.8

(a) * * *

                        (3)                         *Gulf reef fish.*                         A vessel for which a Federal commercial vessel permit for Gulf reef fish or a charter vessel/headboat permit for Gulf reef fish has been issued must carry a NMFS-approved observer, if the vessel's trip is selected by the SRD for observer coverage. Vessel permit renewal is contingent upon compliance with this paragraph (a)(3).                    

* * * * *

(c) * * *

(4) Allow the observer free and unobstructed access to the vessel's bridge, working decks, holding bins, weight scales, holds, and any other space used to hold, process, weigh, or store fish.

(5) Allow the observer to inspect and copy the vessel's log, communications logs, and any records associated with the catch and distribution of fish for that trip.

[FR Doc. 04-25961 Filed 11-22-04; 8:45 am]

BILLING CODE 3510-22-S