[Federal Register Volume 73, Number 172 (Thursday, September 4, 2008)]
[Proposed Rules]
[Pages 51617-51620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20543]


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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.

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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:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal: http://www.regulations.gov.
    <bullet> Fax: 727-824-5308; Attention: Susan Gerhart.
    <bullet> 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 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.
    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

[[Page 51619]]

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 http://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