Federal Register / Vol. 73, No. 172 / Thursday, September 4, 2008 / Proposed Rules 51617 

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. 

Status Review 

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 

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. 

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 

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 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: http:// 

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 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 


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51618 Federal Register / Vol. 73, No. 172 / Thursday, September 4, 2008 / Proposed Rules 

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 

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 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. 

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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51620 Federal Register / Vol. 73, No. 172 / Thursday, September 4, 2008 / Proposed Rules 

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 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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