        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 622
        RIN 0648-BE20
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery Off the Southern Atlantic States; Amendment 32

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

          ACTION:
          Notice of availability; request for comments.

          SUMMARY:
          The South Atlantic Fishery Management Council (Council) has submitted Amendment 32 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP) for review, approval, and implementation by NMFS. Amendment 32 proposes actions to remove blueline tilefish from the deep-water complex; revise definitions of management thresholds for blueline tilefish; establish blueline tilefish commercial and recreational sector annual catch limits (ACLs), accountability measures (AMs), and recreational annual catch targets (ACTs); establish a blueline tilefish commercial trip limit; revise the blueline tilefish recreational bag limit; and revise the deep-water complex ACLs, AMs, and recreational ACT. The purpose of Amendment 32 is to specify ACLs and AMs for blueline tilefish to end overfishing of the stock and maintain catch levels consistent with achieving optimum yield (OY) for the blueline tilefish and deep-water complex resource.

          DATES:
          Written comments must be received on or before February 17, 2015.

          ADDRESSES:
          You may submit comments on Amendment 32, identified by “NOAA-NMFS-2014-0145” by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0145, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Rick DeVictor, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

          Electronic copies of Amendment 32, which includes an environmental assessment, an initial regulatory flexibility analysis (IRFA), and a regulatory impact review, may be obtained from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov/sustainable_fisheries/s_atl/sg/2014/am32/index.html.

          FOR FURTHER INFORMATION CONTACT:
          Rick DeVictor, telephone: 727-824-5305, or email: rick.devictor@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        The snapper-grouper fishery of the South Atlantic is 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
        A benchmark assessment for the blueline tilefish stock in the South Atlantic was conducted through the Southeast, Data, Assessment, and Review (SEDAR) process in 2013 (SEDAR 32). At its October 2013 meeting, the Council's Scientific and Statistical Committee (SSC) and the Council determined the 2013 stock assessment was based on the best scientific information available and considered the assessment to be appropriate for management decisions. The assessment determined that the blueline tilefish stock is undergoing overfishing in the South Atlantic. As required by the Magnuson-Stevens Act, the Council must therefore implement measures to end overfishing within 2 years of notification of an overfishing status. NMFS notified the Council of the blueline tilefish stock status on December 6, 2013.
        The Magnuson-Stevens Act requires that ACLs and AMs be implemented to prevent overfishing and achieve the OY from a fishery. An ACL is the level of annual catch of a stock that if exceeded, triggers AMs. AMs are management controls to prevent ACLs from being exceeded and to correct any overages of ACLs if they occur. Two examples of AMs include an in-season closure if landings reach or are projected to reach the ACL, and a post-season overage adjustment which would reduce the ACL if an overage occurred during the previous fishing year.
        NMFS published an emergency rule on April 17, 2014 (79 FR 21636) that implemented temporary measures to reduce overfishing of blueline tilefish while Amendment 32 was being developed. Those measures were extended through a temporary rule on October 14, 2014 (79 FR 61262, October 10, 2014) and are effective through April 18, 2015, while Amendment 32 and its associated rulemaking are under review. The temporary measures of the emergency action include the following: Removal of blueline tilefish from the deep-water complex, specification of sector ACLs and AMs for blueline tilefish, and revision to the deep-water complex ACL to reflect the removal of blueline tilefish from the complex.

        Amendment 32 proposes to remove blueline tilefish from the deep-water complex; revise definitions of management thresholds for blueline tilefish; establish blueline tilefish commercial and recreational sector ACLs, AMs, and recreational ACTs; establish a blueline tilefish commercial trip limit; revise the blueline tilefish recreational bag limit; and revise the deep-water complex ACLs, AMs, and recreational ACT.
        Removal of Blueline Tilefish From the Deep-Water Complex
        Amendment 32 would remove blueline tilefish from the deep-water complex. In 2012, the Comprehensive ACL Amendment established a deep-water complex that contained the following eight species: Blueline tilefish, yellowedge grouper, silk snapper, misty grouper, queen snapper, sand tilefish, black snapper, and blackfin snapper (77 FR 15916, March 16, 2012). The Comprehensive ACL Amendment also specified ACLs and AMs for the complex where the complex's ACLs were based upon an acceptable biological catch (ABC) recommendation provided by the Council's SSC. In the absence of stock assessments, the ABCs for these and other unassessed species in the Comprehensive ACL Amendment were based on median or average catch. The Council placed most unassessed snapper-grouper species into complexes because many unassessed snapper-grouper species are data-limited stocks that are known to have issues with species identification and/or extreme fluctuations in relative landings through time due to rarity, or lack of targeted fishing effort.
        As a result of blueline tilefish being assessed through SEDAR 32 and the Council's SSC providing an assessment-based ABC recommendation for blueline tilefish, the Council decided to remove blueline tilefish from the deep-water complex and establish individual ACLs and AMs for the blueline tilefish stock. The Council has determined that sufficient information to establish ACLs and AMs is now available for blueline tilefish and the rationale for grouping the species with other data-limited species in the deep-water complex no longer applies.
        Modify the Definitions for Blueline Tilefish Management Thresholds
        Definitions of maximum sustainable yield (MSY) and OY were established for blueline tilefish in Amendment 11 to the FMP (64 FR 59126, November 2, 1999). Amendment 32 would revise these definitions based upon the most recent scientific information contained in SEDAR 32. Amendment 32 would revise the MSY value for blueline tilefish and set the OY equal to ACL as described later in this notice.
        Blueline Tilefish Commercial and Recreational ACLs, AMs, and Recreational ACTs
        Amendment 32 would implement individual blueline tilefish commercial and recreational ACLs and AMs (based on the revised ABC for blueline tilefish specified in Amendment 32) to end overfishing of the stock. In Amendment 32, the Council defines the blueline tilefish stock ACL equal to 98 percent of the ABC. Due to improved data reporting, the Council has consistently chosen to set ACL equal to ABC for snapper-grouper species. However, for blueline tilefish in Amendment 32, the Council decided to set the stock ACL at 98 percent of the proposed ABC to account for landings that occur north of the Council's area of jurisdiction. Approximately 2 percent of the total blueline tilefish harvested were landed north of the North Carolina/Virginia border. Therefore, this amendment would establish blueline tilefish stock ACLs (combined commercial and recreational ACLs, equivalent to a total ACL), of 35,632 lb (16,162 kg) for 2015, 53,457 lb (24,248 kg) for 2016, 71,469 lb (32,418 kg) for 2017, and 87,974 lb (39,904 kg) for 2018, and subsequent fishing years. All ACL weights are expressed in round weight. Additionally, Amendment 32 would establish sector specific ACLs for the blueline tilefish commercial and recreational sectors based upon the Council's previously established blueline tilefish allocations of 50.07 percent and 49.93 percent for the commercial and recreational sectors, respectively. The commercial ACLs would be 17,841 lb (8,093 kg) for 2015, 26,766 lb (12,141 kg) for 2016, 35,785 lb (16,232 kg) for 2017, and 44,048 lb (19,980 kg) for 2018, and subsequent fishing years. The recreational ACLs would be 17,791 lb (8,070 kg) for 2015, 26,691 lb (12,107 kg) for 2016, 35,685 lb (16,186 kg) for 2017, and 43,925 lb (19,924 kg) for 2018, and subsequent fishing years.
        Amendment 32 would implement commercial and recreational sector in-season AMs for blueline tilefish. If commercial or recreational landings for blueline tilefish reach or are projected to reach the applicable ACL, then the commercial or recreational sector, as applicable, would be closed for the remainder of the fishing year. The recreational sector would not have an in-season closure if the Regional Administrator (RA) determines, using the best scientific information available, that a closure would be unnecessary.
        Additionally, if the total ACLs are exceeded in a fishing year, then during the following fishing year, the commercial and recreational sectors will not have an increase in their respective sector ACLs.
        Amendment 32 would also implement post-season ACL overage adjustments (paybacks) for blueline tilefish. For the commercial sector, if commercial landings exceed the commercial ACL, and the combined commercial and recreational ACL (stock ACL) is exceeded, and blueline tilefish are overfished, then during the following fishing year the commercial ACL would be reduced for that following year by the amount of the commercial ACL overage in the prior fishing year. For the recreational sector, if recreational landings for blueline tilefish exceed the applicable recreational ACL, and the combined commercial and recreational ACL (stock ACL) is exceeded, and blueline tilefish are overfished, then the recreational fishing season in the following fishing year would be reduced to ensure recreational landings do not exceed the recreational ACL the following fishing year. Additionally, the recreational ACL would be reduced by the amount of the recreational ACL overage from the prior fishing year. However, the recreational fishing season and recreational ACL would not be reduced if the RA determines, using the best scientific information available that no reduction is necessary.
        Amendment 32 would also establish recreational ACTs for blueline tilefish. The ACT is the amount of annual catch of a stock or stock complex that is the management target of the fishery and accounts for management uncertainty in controlling the actual catch below the ACL so that the ACL is not exceeded. The Council is using the ACT as a management reference point to track performance of the management measures imposed on the recreational sector, and no AMs are triggered if recreational landings reach the recreational ACT. The recreational ACT is set less than the recreational ACL so that if, in the future, the Council chose to limit recreational harvest to the recreational ACT, it could serve as an in-season AM for the recreational sector. The recreational ACT could then help to reduce or possibly eliminate the need to close or implement post-season recreational AMs that are meant to correct for ACL overages.
        Additional Blueline Tilefish Management Measures

        Amendment 32 would implement a commercial trip limit and revise the recreational bag limit for blueline tilefish. This amendment would establish a commercial trip limit of 100 lb (45 kg), gutted weight; 112 lb (51 kg), round weight. The trip limit is expected to slow the rate of harvest, potentially lengthening the commercial season during a fishing year, and reduce the risk of the commercial ACL from being exceeded.
        For the recreational bag limit, blueline tilefish are currently part of the aggregate grouper and tilefish bag limit of 3 fish per person per day. Amendment 32 would revise the blueline tilefish bag limit within the aggregate to set a specific blueline tilefish bag limit of one per vessel per day for the months of May through August. There would be no retention of blueline tilefish by the recreational sector from January through April and from September through December each year. A bag limit of one blueline tilefish per vessel per day and an 8-month annual closure was determined to best meet the needs of ending overfishing, reducing recreational harvest, and potentially reducing blueline tilefish discards if blueline tilefish are targeted less during the open season because of the lower bag limit. The Council determined that the shortened summer seasonal opening could provide increased stability for planning purposes to recreational fishermen as it could minimize the risk of an in-season closure and the recreational ACL being exceeded, which may require post-season AMs in the following fishing year. In addition, the Council determined that an opening during the summer months could increase safety at sea by allowing fishing to occur in the generally calmer summer weather compared to a January 1 season opening during the winter. The vessel limit and fishing season dates for the blueline tilefish recreational sector would match what is being proposed by the Council for snowy grouper through Regulatory Amendment 20 to the FMP. The Council determined that similar recreational management measures and fishing seasons would be beneficial to the fish stocks as both species are caught at the same depths and have similar high release mortality rates.
        Deep-Water Complex Commercial and Recreational ACLs, AMs, and Recreational ACT

        Amendment 32 would revise the ACLs and AMs for the deep-water complex (composed of yellowedge grouper, silk snapper, misty grouper, queen snapper, sand tilefish, black snapper, and blackfin snapper). The ACLs are being revised for two reasons. First, as Amendment 32 proposes to remove blueline tilefish from the deep-water complex, this amendment would remove the current blueline tilefish portion from the complex total ACL. The permanent blueline tilefish portion of the complex ACL is 631,341 lb (286,371 kg), round weight, and the total deep-water complex ACL is 711,025 lb (322,516 kg), round weight. The emergency rule set both a new, separate blueline tilefish ACL of 224,100 lb (101,650 kg), round weight and a revised deep-water complex ACL without blueline tilefish of 79,684 lb (36,144 kg), round weight. Second, through Amendment 29 to the FMP, which is currently in rulemaking, the Council is proposing a revision to the ABC control rule for data-poor species based on recommendations from the SSC. If Amendment 29 is approved and implemented, the portion of the deep-water complex ABC for silk snapper and yellowedge grouper would change. The Council submitted Amendment 29 to the Secretary of Commerce on October 14, 2014, the notice of availability for the amendment was published in the Federal Register on November 24, 2014 (79 FR 69819), and the proposed rule published in the Federal Register on December 8, 2014 (79 FR 72567).
        Therefore, Amendment 32 would change the deep-water complex total ACL (both sectors without blueline tilefish but with the increased catch levels for silk snapper and yellowedge grouper resulting from Amendment 29), to 170,278 lb (77,237 kg), round weight. Additionally, this amendment would establish sector specific ACLs for the deep-water complex based on the allocations for species in the deep-water complex that were established in the Comprehensive ACL Amendment (77 FR 15916, March 16, 2012). The commercial ACL for the complex would be 131,634 lb (59,708 kg), round weight and the recreational ACL for the complex would be 38,644 lb (17,529 kg), round weight.
        Amendment 32 would revise the AMs for the deep-water complex. The amendment would retain the current commercial in-season AM, revise the commercial post-season AM, and implement revised recreational AMs for the deep-water complex. In Amendment 32, if commercial or recreational landings for the deep-water complex reach or are projected to reach their applicable ACL, then the commercial or recreational sector, as applicable, would be closed for the remainder of the fishing year. The recreational sector would not have an in-season closure if the RA determined, using the best scientific information available, that a closure was unnecessary. The Council decided that the in-season AM for both sectors is necessary to reduce the risk that landings exceed the ACL.
        Amendment 32 would also modify the post-season ACL overage adjustments for the deep-water complex. Currently, if deep-water complex commercial landings exceed the ACL and at least one species in the complex is overfished, the commercial ACL is reduced in the following year by the overage amount. The amendment would modify the commercial post-season AMs as follows: If commercial landings exceed the commercial ACL, and the combined commercial and recreational ACL (total ACL) is exceeded, and at least one species in the deep-water complex is overfished, then during the following fishing year the complex commercial ACL would be reduced for that following year by the amount of the complex's commercial ACL overage in the prior fishing year.
        Currently, if recreational landings for the deep-water complex exceed the recreational ACL, then during the following fishing year, recreational landings will be monitored for a persistence in increased landings and, if necessary, the length of the following recreational fishing season will be reduced by the amount necessary to ensure recreational landings do not exceed the recreational ACL in the following fishing year. Amendment 32 would modify the recreational post-season AMs as follows: For the recreational sector, if recreational landings for the deep-water complex exceed the applicable recreational ACL, and the combined commercial and recreational ACL is exceeded, and at least one species in the complex is overfished, then the length of the recreational fishing season in the following fishing year would be reduced to ensure that recreational landings do not exceed the recreational ACL the following fishing year. Additionally, the recreational ACL would be reduced by the amount of the recreational ACL overage from the prior fishing year. However, the recreational fishing season and recreational ACL would not be reduced if the RA determined, using the best scientific information available that no reduction is necessary.
        Amendment 32 also revises the deep-water complex recreational ACTs to reflect the removal of blueline tilefish from the complex and the change in the deep-water complex ABC as described above. These ACTs are management reference points to track performance of the management measures but do not trigger AMs.

        A proposed rule that would implement measures outlined in Amendment 32 has been drafted. In accordance with the Magnuson-Stevens Act, NMFS is evaluating the proposed rule to determine whether it is consistent with the FMP, the Magnuson-Stevens Act, and other applicable law. If that determination is affirmative, NMFS will publish the proposed rule in the Federal Register for public review and comment.
        Consideration of Public Comments
        The Council submitted Amendment 32 for Secretarial review, approval, and implementation on November 14, 2014. Comments received by February 17, 2015, whether specifically directed to the amendment or the proposed rule, will be considered by NMFS in its decision to approve, disapprove, or partially approve the amendment. Comments received after that date will not be considered by NMFS in this decision. All comments received by NMFS on the amendment or the proposed rule during their respective comment periods will be addressed in the final rule.

          Authority:
          16 U.S.C. 180 et seq.

          Dated: December 15, 2014.
          Emily H. Menashes,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 2014-29726 Filed 12-18-14; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 622 and 635
        [Docket No. 060425111-6111-01; I.D. 041906B]
        RIN 0648-AN09
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 18A

          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 implement Amendment 18A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Amendment 18A) prepared by the Gulf of Mexico Fishery Management Council (Council). This proposed rule would prohibit vessels from retaining reef fish caught under the recreational size and bag/possession limits when commercial quantities of Gulf reef fish are on board; adjust the number of persons allowed onboard when a vessel with both commercial and charter vessel/headboat reef fish permits and a Certificate of Inspection (COI) is fishing commercially; prohibit use of Gulf reef fish, except sand perch or dwarf sand perch, as bait in any commercial or recreational fishery in the exclusive economic zone (EEZ) of the Gulf of Mexico, with a limited exception for crustacean trap fisheries; require a NMFS-approved vessel monitoring system (VMS) on board vessels with Federal commercial permits for Gulf reef fish, including charter vessels/headboats with such commercial permits; and require owners and operators of vessels with Federal commercial or charter vessel/headboat permits for Gulf reef fish to comply with sea turtle and smalltooth sawfish release protocols, possess on board specific gear to ensure proper release of such species, and comply with guidelines for proper care and release of incidentally caught sawfish and sea turtles. NMFS is also proposing to require annual permit application rather than application every 2 years (biennial). In addition, Amendment 18A would revise the total allowable catch (TAC) framework procedure to reflect current practices and terminology. The intended effects of this proposed rule are to improve enforceability and monitoring in the reef fish fishery in the Gulf of Mexico and to reduce mortality of incidentally caught sea turtles and smalltooth sawfish.

          DATES:
          Comments must be received no later than 5 p.m., eastern time, on July 3, 2006.

          ADDRESSES:
          You may submit comments on the proposed rule by any of the following methods:

        • E-mail: 0648-AN09.Proposed@noaa.gov. Include in the subject line the following document identifier: 0648-AN09.
        • Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
        • Mail: Peter Hood, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
        • Fax: 727-824-5308; Attention: Peter Hood.

        Copies of the Amendment 18A, which includes a Regulatory Impact Review (RIR), an Initial Regulatory Flexibility Analysis (IRFA), and an Environmental Assessment, may be obtained from the Gulf of Mexico Fishery Management Council, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; telephone: 813-348-1630; fax: 813-348-1711; e-mail: gulfcouncil@gulfcouncil.org. Copies of the amendments may also be downloaded from the Council's Web site at www.gulfcouncil.org.

        Comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted in writing to Jason Rueter at the Southeast Regional Office address and to David Rostker, Office of Management and Budget (OMB), by e-mail at David_Rostker@omb.eop.gov, or by fax to 202-395-7285.

          FOR FURTHER INFORMATION CONTACT:

          Peter Hood, telephone: 727-824-5305; fax: 727-824-5308; e-mail: Peter.Hood@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        The fishery for reef fish is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) that was prepared by the Council. The FMP was approved by NMFS and implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
        Background
        This proposed rule is intended to resolve several issues related to monitoring and enforcement of existing regulations and to reduce bycatch mortality of incidentally caught endangered sea turtles and smalltooth sawfish. In addition, Amendment 18A would update the framework procedure for setting TAC to reflect current terminology and stock assessment procedures.
        Simultaneous Commercial and Recreational Harvest on a Vessel

        This proposed rule would improve enforceability of the prohibition on sale of reef fish caught under the recreational bag limit by prohibiting persons aboard a vessel with a commercial reef fish permit from retaining reef fish species caught under recreational size and possession limits when the vessel has commercial quantities, i.e., fish in excess of applicable bag/possession limits, of any Gulf reef fish species aboard. By prohibiting retention of recreational reef fish catches on a commercial fishing trip, this alternative adds an at-sea component to enforcement of the prohibition on sale of recreationally caught reef fish. This measure also makes consistent across all reef fish the rules regarding retention of recreationally harvested fish on a commercial fishing vessel. Regulations for red grouper, gag, and black grouper specifically prohibit commercial reef fish vessels from possessing those species during the February 15 to March 15 closed season, but possession of recreational bag limits is allowed during a quota closure for those species, and for other reef fish during any commercial closure of that species. This action explicitly prohibits retention of recreational bag limits of Gulf reef fish on board a vessel that possesses commercial quantities of Gulf reef fish.
        Maximum Crew Size on a Charter Vessel/Headboat When Fishing Commercially
        This proposed rule would resolve the discrepancy between United States Coast Guard (USCG) minimum crew size regulations and NMFS' maximum crew size regulations, and address potential safety issues related to spearfishing under the maximum crew size restrictions of the existing NMFS regulations. The USCG regulations currently require a minimum of four persons (two captains and two crew) when a vessel with a COI is out over 12 hours. NMFS' current fishing regulations limit the maximum number of persons on board to three when a vessel with both a commercial and charter vessel/headboat permit is fishing commercially. Since some charter vessels and headboats must have a COI in order to carry passengers for hire, this creates a discrepancy in the regulations for dual-permitted vessels, and there is a need to resolve this discrepancy. In addition, the Council received a request from the operator of a dual-permitted vessel who spearfishes commercially to allow a crew size of four persons when commercially spearfishing, so that for safety purposes, there could be two persons in the boat while there are two divers in the water.
        This proposed rule would address these crew size issues by revising the definitions of “Charter vessel” and “Headboat” to clarify that a vessel that has a charter vessel/headboat permit for Gulf reef fish, a commercial vessel permit for Gulf reef fish, and a valid COI issued by the USCG to carry passengers for hire will not be considered to be operating as a charter vessel/headboat provided: (1) It is not carrying a passenger who pays a fee; and (2) When underway for more than 12 hours, that vessel meets but does not exceed the minimum manning requirements outlined in its COI for vessels underway over 12 hours; or when underway for not more than 12 hours, that vessel meets the minimum manning requirements outlined in its COI for vessels underway for not more than 12-hours (if any), and does not exceed the minimum manning requirements outlined in its COI for vessels that are underway for more than 12 hours. A vessel with a commercial vessel permit for king mackerel and/or Spanish mackerel and a charter vessel/headboat permit for Gulf coastal migratory pelagic fish would still be subject to the 3-person maximum crew size limit if the vessel has commercial quantities of mackerel onboard, regardless of whether the vessel also has a Gulf reef fish charter vessel/headboat permit, a commercial vessel permit for Gulf reef fish, or commercial quantities of Gulf reef fish onboard.
        Use of Reef Fish in or from the EEZ for Bait
        It is illegal to cut up reef fish at sea for use as bait. However, it is not illegal to use cut up reef fish that were purchased as bait on shore, nor is it illegal to use a whole reef fish provided it complies with applicable size and bag limits. Allowing cut up reef fish to be used when purchased compromises enforcement of the rules prohibiting the cutting up of reef fish caught at sea because it is difficult to differentiate between the two.
        This proposed rule would prohibit using any species in the reef fish management unit or parts thereof, except sand perch and dwarf sand perch, as bait in any commercial or recreational fishery. A limited exception to this prohibition would be provided for reef fish carcasses and offal to be used for bait in trap fisheries for blue crab, stone crab, deep-water crab, and spiny lobster, unless such use was otherwise restricted.
        Vessel Monitoring System
        The Reef Fish FMP contains several area-specific regulations where fishing is restricted or prohibited to protect habitat or spawning aggregations, or to reduce fishing pressure in areas that are heavily fished. Unlike size, bag, and trip limits, where the catch can be monitored onshore when a vessel returns to port, area restrictions require at-sea enforcement. However, at-sea enforcement of offshore area restrictions is difficult due to the distance from shore and limited number of patrol vessels. There is a need to improve enforceability of area fishing restrictions through electronic methods.

        This proposed rule would require permitted commercial reef fish vessels, including charter vessel/headboats with commercial reef fish vessel permits even when under charter, to be equipped with an operating VMS approved by NMFS for the Gulf reef fish fishery. An operating VMS includes an operating mobile transmitting unit on the vessel and a functioning communication link between the unit and NMFS as provided by a NMFS-approved communication service provider. NMFS would publish in the Federal Register a list of approved VMS mobile transmitting units and associated communication service providers that meet the minimum standards for the Gulf reef fish fishery. Upon installation of an approved transmitting unit by a qualified marine electrician and activation of the communication services, a vessel owner or operator would be required to submit to NMFS, Office of Enforcement, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, a statement certifying compliance with an installation and activation checklist and a vendor-completed installation certification checklist that would be available from NMFS. The VMS would be required to transmit a signal indicating the vessel's accurate position at least once per hour and must function 7 days a week, 24 hours a day unless exempted by NMFS under the power down exemption of the NOAA Enforcement Draft Vessel Monitoring System Requirements that is included as Appendix E to Amendment 18A. Prior to departure for each trip, a vessel owner or operator would be required to report to NMFS any fishery the vessel would participate in on that trip and the specific type(s) of fishing gear, using NMFS-defined gear codes, that would be on board the vessel. This information could be reported via NMFS' toll-free number, 888-219-9228, or via an attached VMS terminal. The vessel owner would be responsible for the cost of the VMS equipment, installation, maintenance, and month-to-month communications. These VMS requirements would apply throughout the Gulf of Mexico. Compliance with the VMS requirements would be required 120 days after publication of the final rule implementing Amendment 18A.
        Vessels fishing exclusively with fish traps would be exempted from the VMS requirement through February 7, 2007, but would remain subject to mandatory trip origination and termination reporting requirements through February 7, 2007. The use of fish traps in the Gulf reef fishery is prohibited after February 7, 2007.
        Sea Turtle and Smalltooth Sawfish Bycatch

        NMFS concluded in a biological opinion that reasonable and prudent measures should be taken to minimize stress and increase survival rates of any sea turtles and smalltooth sawfish taken in the reef fish fishery. Therefore, measures are needed to comply with the biological opinion and to enhance the protection of endangered sea turtles and smalltooth sawfish.
        This proposed rule would require vessels with commercial or charter vessel/headboat permits for Gulf reef fish to possess a document provided by NMFS titled, “Careful Release Protocols for Sea Turtle Release With Minimal Injury”; post the sea turtle handling and release guidelines provided by NMFS on the vessel; follow specified release handling measures for any smalltooth sawfish that are caught incidentally; and have sea turtle release gear onboard.
        Measure Proposed by NMFS
        NMFS is proposing to revise the renewal requirements applicable to all Magnuson-Stevens Act vessel permits, licenses, endorsements, and dealer permits issued by NMFS' Southeast Regional Office, including applicable highly migratory species permits, to require submission of an application every year rather than requiring submission only every two years (i.e., biennial application). NMFS believes that requiring an annual application would: Provide better permit accountability, particularly regarding permit transfers; provide for better verification of permit application data; and simplify permit financial accounting through annual application payments. Fees for annual application would be half of the current biennial fee; therefore, there would be no increased cost to applicants.
        Modifications to the TAC Framework Procedure
        In addition to the measures contained in this proposed rule as discussed above, Amendment 18A proposes to modify the framework procedure for setting TAC by incorporating the Southeast Data, Assessment, and Review (SEDAR) process and adopting minor wording changes to update the terminology in the framework. The administrative procedures for setting TAC have changed with the development of SEDAR to assess stock status. The framework procedure currently specifies that the Reef Fish Stock Assessment Panel (RFSAP) evaluate stock assessments and recommend acceptable biological catch (ABC) ranges. However, the RFSAP has been discontinued, and stock assessments and ABC recommendations are now conducted through the SEDAR process. In addition, some of the terminology and agency or department names have changed since the last revision of the framework procedure and must be updated accordingly.
        Classification
        At this time, NMFS has not determined whether Amendment 18A, which this proposed rule would implement, is consistent with the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment periods on this amendment and on this proposed rule.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        NMFS prepared an IRFA, 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 description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. 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. The proposed rule would: (1) Continue allowing vessels to possess both commercial and for-hire vessel permits but disallow retention of reef fish species caught under recreational size and possession limits when the vessel has commercial harvests of any reef fish species aboard; (2) allow a charter vessel/headboat with a USCG COI to increase its crew size but not in excess of its minimum manning requirements outlined in its COI when fishing for reef fish under its commercial fishing license; (3) prohibit the use of any species in the reef fish management unit or parts thereof as bait, with certain exceptions; (4) require the use of VMS systems Gulf-wide for all commercially permitted reef fish vessels, including charter vessels with commercial reef fish permits; and (5) require vessels with commercial and/or charter vessel/headboat reef fish permits to comply with sea turtle and smalltooth sawfish release protocols, possess a set of release gear required by the NMFS' Office of Protected Resources (OPR), and comply with specific guidelines for the proper care of incidentally caught sawfish.
        The main objectives of the proposed rule are to resolve certain issues related to monitoring and enforcement of existing regulations and reduce bycatch mortality of incidentally caught endangered sea turtles and smalltooth sawfish.
        The proposed rule would impact three types of businesses in the Gulf reef fish fishery, namely, commercial fishing vessels, recreational for-hire vessels, and fish dealers. At present, the commercial reef fish permits are under a license limitation program, and for-hire reef fish permits are under a moratorium, which is proposed to be converted into a license limitation under a separate amendment. Hence, no new commercial or for-hire reef fish permits will be issued when Amendment 18A is implemented. Currently, there are 1,145 commercial and 1,574 for-hire active vessel permits for the Gulf reef fish fishery. Of these permittees, 237 vessels have both commercial and for-hire vessel permits. Reef fish dealers in the Gulf are required to obtain permits to handle reef fish caught in the Gulf. There are currently 227 dealers permitted to buy and sell reef fish caught in the Gulf. The proposed rule is expected to affect these commercial vessels, for-hire vessels, and fish dealers. The direct effects on dealers would mainly come from the restriction of bait use and only to the extent that dealers supply bait to some fishermen. Data are not available to quantify the extent of this impact.
        Average annual gross receipts of commercial reef fish vessels in the Gulf range from $24,095 for low-volume vertical line vessels to $116,989 for high-volume longline vessels. The corresponding annual net incomes range from $4,479 for low-volume vertical line vessels to $28,466 for high-volume vertical line vessels. Permit records indicate that the maximum number of commercial reef fish permits owned by any single entity is six, so at the maximum this entity would generate a total of $701,934 in gross receipts. For the for-hire vessels, gross annual receipts range from $76,960 for charter vessels to $404,172 for headboats. The corresponding annual operating profits range from $36,758 for charter vessels to $338,209 for headboats. Permit records indicate a maximum of 12 permits held by any single entity. At a maximum, this entity would generate a total of $4,850,064 in gross receipts. A fishing business is considered a small entity if it is independently owned and operated and not dominant in its field of operation, and if it has annual receipts not in excess of $4.0 million in the case of commercial harvesting entities or $6.5 million in the case of for-hire entities. Relative to these thresholds, both the commercial vessel and for-hire vessel entities affected by the proposed rule are determined to be small business entities.

        According to a survey of reef fish processors, employment (both part and full time) by all reef fish processors in the Southeast totaled 700 individuals. There is no information regarding employment by fish dealers, although it is safe to assume that dealers employ fewer individuals than processors. A seafood processor (fish dealer) is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 (100) or fewer persons on a full-time, part-time, temporary, or other basis. Given the employment information, it is very unlikely for any processor that holds a reef fish dealer permit to employ 500 or more persons. Although there are no actual data on employment by fish dealers, between 1997 and 2000, on average, in excess of 100 reef fish dealers operated in the Gulf. It is assumed that all processors must be dealers, yet a dealer need not be a processor. Total dealer employment, therefore, is expected to be slightly more than 700 individuals. Given the number of reef fish dealers and estimates of dealer employment, it is unlikely any dealer employs more than 100 persons.
        Based on earnings information, the commercial and recreational fishing business entities affected by the proposed rule are determined to be small business entities. It is also very likely that most, if not all, permitted fish dealers affected by the proposed rule are also small business entities. However, as previously noted, this proposed rule's direct effects on dealers would mainly come from the restriction of bait use and only to the extent that dealers supply bait to some fishermen. Data are not available to quantify the extent of this impact. Allowing vessels to be dually permitted (commercial and for-hire) would enable some 227 vessels to continue their usual operations. Disallowing these vessels to possess recreationally caught reef fish when commercial quantities of reef fish are aboard would improve enforcement without significantly impacting the operations of these dually permitted vessels. Allowing a for-hire vessel to increase its crew size but not in excess of its minimum manning requirements outlined in its COI affords flexibility in operation and helps to assure safety at sea of the crew, particularly for vessels using spearfish gear. This would also eliminate the discrepancy between current fishing rules and USCG requirements with respect to crew size of for-hire vessels. The prohibition on the use of reef fish, except sand perch and dwarf sand perch, as bait reinforces the current ban on cutting up reef fish at sea and regulations on bait. The economic impact of this provision on commercial and for-hire vessels cannot be estimated but is expected to be relatively small. The VMS requirement is expected to improve the efficacy of enforcement efforts and the effectiveness and timeliness of at-sea rescue efforts. One-time and recurring costs would be incurred by all commercial reef fish vessels, including for-hire vessels with commercial reef fish permits. First-year compliance costs range from $2,032 to $3,651 per vessel. These costs could be substantial, particularly relative to the profits of small-time vessel operations. The various requirements addressing the bycatch issue relative to sea turtles and smalltooth sawfish would affect all commercial and for-hire vessels in the reef fish fishery. Out-of-pocket expenses are estimated between $267 and $459 per vessel. These are mainly costs for equipping vessels with the required gear. Because some of the gear would last for some time, costs would in effect be spread over a number of years.
        The proposed rule would alter some reporting, record-keeping, and other compliance requirements. The VMS requirement would affect all vessels with commercial and/or for-hire reef fish permits. Including installation by a qualified marine electrician, equipment costs range from $1,600 to $2,900 per vessel. In addition, yearly communication costs range from $432 to $751 per vessel. The proposed rule also contains changes to the application process for renewal of permits. However, the new requirement for yearly application is not expected to alter burden time or costs to respondents. The availability of the permit renewal application as an on-line document, as well as the reduced burden time attributable to the changes of the income qualification affidavit, should offset any increases in burden hours generated by the yearly renewal. Permit applications would cost half of their previous amount, but would be required twice as often, thereby off-setting any changes in overall cost. Compliance with sea turtle and smalltooth sawfish release protocols would also affect all vessels with commercial and/or for-hire reef fish permits. Costs range from $267 to $459 per vessel.
        Other than the provision on vessel manning requirements, which removes the conflict between NMFS and USCG regulations, no other Federal rules have been identified that would duplicate, overlap, or conflict with the proposed rule.
        The proposed rule is expected to affect a substantial number of small entities. A total of 908 commercial vessels only, 1,337 for-hire vessels only, and 237 commercial/for-hire vessels would be affected. Since practically all entities affected by the proposed rule are small entities, the issue of disproportional effects on small versus large entities does not arise. Mainly because of the VMS requirement, for which compliance costs range from $1,600 to $2,900 per vessel, and the sea turtle and smalltooth sawfish release protocols, for which compliance costs range from $267 to $459 per vessel, the proposed rule would have substantial adverse impacts on the profitability of affected vessels, particularly the smaller and marginal operations.

        This amendment considered several alternatives to the proposed rule. For vessels with both commercial and for-hire reef fish permits (dual-permitted vessels), two other alternatives have been considered. Alternative 1 (status quo) continues to allow vessels to be dually permitted, but it does not resolve the problem of identifying whether caught fish are saleable (commercial trip) or not (charter trip). Alternative 3, which would preclude a vessel from being dual-permitted, would adversely affect the fishing operations of dual-permitted vessels by forcing them to divest of either the commercial or for-hire permit. Regarding crew size of for-hire vessels fishing under their commercial permits, four other alternatives have been considered. Alternative 1 (status quo), which limits for-hire vessel crew size to 3 persons, would not be compatible with minimum USCG manning requirements. Alternative 3, which is similar to the proposed rule except for spearfishing vessels, would benefit the spearfishing vessels but at the same time make the crew size for these vessels incompatible with USCG manning requirements. Alternative 4, which allows a maximum crew size of 4 persons, would also be incompatible with USCG manning requirements. Alternative 5, which removes the maximum crew size requirements for dual-permitted vessels, creates the same enforcement problem as the status quo and also allows a potential increase in fishing effort. Regarding use of reef fish as bait, two other alternatives (with various sub-alternatives) have been considered. Alternative 1 (status quo), which allows whole reef fish that meet the specified requirements for bait or cut-up reef fish purchased at shore for bait, complicates the enforcement of the ban on cutting up reef fish at sea and potentially increases the mortality of certain reef fish species. Alternative 3, which effectively requires enforcement officials to identify reef fish species used as bait before assessing any potential violation, would tend to complicate enforcement. For the VMS requirement, two other alternatives have been considered. Alternative 1 (status quo), which does not require VMS, is the least costly to small entities, but it does not address vital enforcement and rescue-at-sea issues. Similar to the proposed rule, Alternative 3 requires VMS, but vessel owners would shoulder only the yearly communication costs. If government resources are available, this alternative would be better for the industry than the proposed rule. Regarding sea turtle and smalltooth sawfish bycatch, five other alternatives have been considered. Alternative 1 (status quo) is the least costly of all alternatives to small entities, but it would not address the bycatch of sea turtles and smalltooth sawfish in commercial and for-hire reef fish vessels. Alternative 2, which requires commercial vessels to abide by the release protocols in effect in the HMS bottom longline fishery, would impose a compliance cost ranging from $202 to $380. Alternative 3, which requires the commercial reef fish fleet to comply with the more stringent requirement in place in the HMS pelagic longline fishery, would carry a compliance cost of $712 to $1,282 per vessel. Alternative 4 requires for-hire reef fish vessels to comply with either the less stringent release protocol as in Alternative 2 or the more stringent release protocol as in Alternative 3. The corresponding compliance costs per vessel would be similar to those in Alternative 2 or 3. Alternative 5, which requires commercial and for-hire reef fish vessels to comply with the sea turtle release protocols in place for the Atlantic HMS bottom longline vessels, would impose a compliance cost of $202 to $380 per vessel.

        This proposed rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA)--namely, requirements for: (1) VMS installation; (2) completion and submission of certification of VMS installation and activation; (3) transmission of position reports; (4) fishing activity reports; (5) annual maintenance of VMS; (6) submission of requests for power down exemptions; and (7) annual renewal of all permits. These requirements have been submitted to OMB for approval. The public reporting burdens per response for these collections of information are estimated to average 4 hours, 15 minutes, 24 seconds, 1 minute, 2 hours, 10 minutes, and 15 minutes respectively. These estimates of the public reporting burdens include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collections of information. Public comment is sought regarding: Whether these proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have 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 collections 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 to OMB (see ADDRESSES) and by e-mail to David_Rostker@omb.eop.gov or fax to 202-395-7285.
        Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

          List of Subjects

        50 CFR Part 622
        Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.
        50 CFR Part 635
        Endangered and threatened species, Fisheries, Fishing, Fishing vessels, Foreign relations, Intergovernmental relations, Penalties, Statistics, Treaties.

          Dated: May 12, 2006.
          John Oliver,
          Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR parts 622 and 635 are 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 definitions of “Charter vessel” and “Headboat” are revised in alphabetical order to read as follows:

          § 622.2
          Definitions and acronyms.

            Charter vessel means a vessel less than 100 gross tons (90.8 mt) that is subject to the requirements of the USCG to carry six or fewer passengers for hire and that engages in charter fishing at any time during the calendar year. A charter vessel with a commercial permit, as required under § 622.4(a)(2), is considered to be operating as a charter vessel when it carries a passenger who pays a fee or when there are more than three persons aboard, including operator and crew. However, a charter vessel that has a charter vessel permit for Gulf reef fish, a commercial vessel permit for Gulf reef fish, and a valid Certificate of Inspection (COI) issued by the USCG to carry passengers for hire will not be considered to be operating as a charter vessel provided—
          (1) It is not carrying a passenger who pays a fee; and
          (2) When underway for more than 12 hours, that vessel meets, but does not exceed the minimum manning requirements outlined in its COI for vessels underway over 12 hours; or when underway for not more than 12 hours, that vessel meets the minimum manning requirements outlined in its COI for vessels underway for not more than 12-hours (if any), and does not exceed the minimum manning requirements outlined in its COI for vessels that are underway for more than 12 hours.

            Headboat means a vessel that holds a valid Certificate of Inspection (COI) issued by the USCG to carry more than six passengers for hire.
          (1) A headboat with a commercial vessel permit, as required under § 622.4(a)(2), is considered to be operating as a headboat when it carries a passenger who pays a fee or—
          (i) In the case of persons aboard fishing for or possessing South Atlantic snapper-grouper, when there are more persons aboard than the number of crew specified in the vessel's COI; or
          (ii) In the case of persons aboard fishing for or possessing coastal migratory pelagic fish, when there are more than three persons aboard, including operator and crew.
          (2)However a vessel that has a headboat permit for Gulf reef fish, a commercial vessel permit for Gulf reef fish, and a valid COI issued by the USCG to carry passengers for hire will not be considered to be operating as a headboat provided—
          (i) It is not carrying a passenger who pays a fee; and

          (ii) When underway for more than 12 hours, that vessel meets, but does not exceed the minimum manning requirements outlined in its COI for vessels underway over 12 hours; or when underway for not more than 12 hours, that vessel meets the minimum manning requirements outlined in its COI for vessels underway for not more than 12-hours (if any), and does not exceed the minimum manning requirements outlined in its COI for vessels that are underway for more than 12 hours.

        3. In § 622.4, paragraph (h)(1) is revised, and a sentence is added at the end of paragraph (m)(1) to read as follows:

          § 622.4
          Permits and fees.

          (h) * * *
          (1) Vessel permits, licenses, and endorsements and dealer permits. A vessel owner or dealer who has been issued a permit, license, or endorsement under this section must renew such permit, license, or endorsement on an annual basis. The RA will mail a vessel owner or dealer whose permit, license, or endorsement is expiring an application for renewal approximately 2 months prior to the expiration date. A vessel owner or dealer who does not receive a renewal application from the RA by 45 days prior to the expiration date of the permit, license, or endorsement must contact the RA and request a renewal application. The applicant must submit a completed renewal application form and all required supporting documents to the RA prior to the applicable deadline for renewal of the permit, license, or endorsement and at least 30 days prior to the date on which the applicant desires to have the permit made effective. If the RA receives an incomplete application, the RA will notify the applicant of the deficiency. If the applicant fails to correct the deficiency within 30 days of the date of the RA's letter of notification, the application will be considered abandoned. A permit, license, or endorsement that is not renewed within the applicable deadline will not be reissued.

          (m) * * *
          (1) * * * An application for renewal or transfer of a commercial vessel permit for Gulf reef fish will not be considered complete until proof of purchase, installation, activation, and operational status of an approved VMS for the vessel receiving the permit has been verified by NMFS VMS personnel.

        4. In § 622.7, paragraph (ff) is added to read as follows:

          § 622.7
          Prohibitions.

          (ff) Fail to comply with the protected species conservation measures as specified in § 622.10.

        5. Section 622.9 is revised to read as follows:

          § 622.9
          Vessel monitoring systems (VMSs).
          (a) Requirements for use of a VMS—(1) South Atlantic rock shrimp. An owner or operator of a vessel that has been issued a limited access endorsement for South Atlantic rock shrimp must ensure that such vessel has an operating VMS approved by NMFS for use in the South Atlantic rock shrimp fishery on board when on a trip in the South Atlantic. An operating VMS includes an operating mobile transmitting unit on the vessel and a functioning communication link between the unit and NMFS as provided by a NMFS-approved communication service provider.
          (2) Gulf reef fish. An owner or operator of a vessel that has been issued a commercial vessel permit for Gulf reef fish, including a charter vessel/headboat issued such a permit even when under charter, must ensure that such vessel has an operating VMS approved by NMFS for use in the Gulf reef fish fishery on board at all times whether or not the vessel is underway, unless exempted by NMFS under the power down exemption of the NOAA Enforcement Draft Vessel Monitoring System Requirements as included in Appendix E to Final Amendment 18A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. The NOAA Enforcement Draft Vessel Monitoring System Requirements document is available from NMFS, Office of Enforcement, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701; phone: 800-758-4833. An operating VMS includes an operating mobile transmitting unit on the vessel and a functioning communication link between the unit and NMFS as provided by a NMFS-approved communication service provider. Unless exempted under the power down exemption, a VMS must transmit a signal indicating the vessel's accurate position at least once an hour, 24 hours a day every day. Prior to departure for each trip, a vessel owner or operator must report to NMFS any fishery the vessel will participate in on that trip and the specific type(s) of fishing gear, using NMFS-defined gear codes, that will be on board the vessel. This information may be reported to NMFS using the toll-free number, 888-219-9228, or via an attached VMS terminal. The VMS requirements of this paragraph apply throughout the Gulf of Mexico. An owner or operator of a vessel that has been issued a commercial vessel permit for Gulf reef fish with a fish trap endorsement and that fishes exclusively with fish traps is exempt from the VMS requirements of this paragraph through February 7, 2007.
          (b) Installation and activation of a VMS. Only a VMS that has been approved by NMFS for the applicable fishery may be used, and the VMS must be installed by a qualified marine electrician. When installing and activating the NMFS-approved VMS, or when reinstalling and reactivating such VMS, the vessel owner or operator must—
          (1) Follow procedures indicated on a NMFS-approved installation and activation checklist for the applicable fishery, which is available from NMFS, Office of Enforcement, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701; phone: 800-758-4833; and
          (2) Submit to NMFS, Office of Enforcement, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, a statement certifying compliance with the checklist, as prescribed on the checklist.
          (3) Submit to NMFS, Office of Enforcement, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, a vendor-completed installation certification checklist, which is available from NMFS, Office of Enforcement, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701; phone: 800-758-4833.
          (c) Interference with the VMS. No person may interfere with, tamper with, alter, damage, disable, or impede the operation of the VMS, or attempt any of the same.
          (d) Interruption of operation of the VMS. When a vessel's VMS is not operating properly, the owner or operator must immediately contact NMFS, Office of Enforcement, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, phone: 800-758-4833, and follow instructions from that office. If notified by NMFS that a vessel's VMS is not operating properly, the owner and operator must follow instructions from that office. In either event, such instructions may include, but are not limited to, manually communicating to a location designated by NMFS the vessel's positions or returning to port until the VMS is operable.
          (e) Access to position data. As a condition of authorized fishing for or possession of fish in a fishery subject to VMS requirements in this section, a vessel owner or operator subject to the requirements for a VMS in this section must allow NMFS, the USCG, and their authorized officers and designees access to the vessel's position data obtained from the VMS.

        6. In subpart A, § 622.10 is added to read as follows:

          § 622.10
          Conservation measures for protected resources.
          (a) Atlantic dolphin and wahoo pelagic longliners. The owner or operator of a vessel for which a commercial permit for Atlantic dolphin and wahoo has been issued, as required under § 622.4(a)(2)(xii), and that has on board a pelagic longline must post inside the wheelhouse the sea turtle handling and release guidelines provided by NMFS. Such owner or operator must also comply with the sea turtle bycatch mitigation measures, including gear requirements and sea turtle handling requirements, as specified in § 635.21(c)(5)(i) and (ii) of this chapter, respectively. For the purpose of this paragraph, a vessel is considered to have pelagic longline gear on board when a power-operated longline hauler, a mainline, floats capable of supporting the mainline, and leaders (gangions) with hooks are on board. Removal of any one of these elements constitutes removal of pelagic longline gear.
          (b) Gulf reef fish commercial vessels and charter vessels/headboats—(1) Sea turtle conservation measures. The owner or operator of a vessel for which a commercial vessel permit for Gulf reef fish or a charter vessel/headboat permit for Gulf reef fish has been issued, as required under §§ 622.4(a)(2)(v) and 622.4(a)(1)(i), respectively, must post inside the wheelhouse, or within a waterproof case if no wheelhouse, a copy of the document provided by NMFS titled, “Careful Release Protocols for Sea Turtle Release With Minimal Injury,” and must post inside the wheelhouse, or in an easily viewable area if no wheelhouse, the sea turtle handling and release guidelines provided by NMFS. Those permitted vessels with a freeboard height of 4 ft (1.2 m) or less must have on board a dipnet, short-handled dehooker, long-nose or needle-nose pliers, bolt cutters, monofilament line cutters, and at least two types of mouth openers/mouth gags. This equipment must meet the specifications described in 50 CFR 635.21(c)(5)(i)(E-L) with the following modifications: the dipnet handle can be of variable length, only one NMFS approved short-handled dehooker is required (i.e., CFR 635.21(c)(5)(i)(G or H)); and life rings, seat cushions, life jackets, and life vests may be used as alternatives to tires for cushioned surfaces as specified in 50 CFR 635.21(c)(5)(i)(F). Those permitted vessels with a freeboard height of greater than 4 ft (1.2 m) must have on board a dipnet, long-handled line clipper, a short-handled and a long-handled dehooker, long-nose or needle-nose pliers, bolt cutters, monofilament line cutters, and at least two types of mouth openers/mouth gags. This equipment must meet the specifications described in 50 CFR 635.21(c)(5)(i) (A-L) with the following modifications: only one NMFS approved long-handled dehooker (50 CFR 635.21(c)(5)(i)(B or C)) and one NMFS-approved short-handled dehooker (50 CFR 635.21(c)(5)(i)(G or H)) are required; and life rings, seat cushions, life jackets, and life vests may be used as alternatives to tires for cushioned surfaces as specified in 50 CFR 635.21(c)(5)(i)(F).
          (2) Smalltooth sawfish conservation measures. The owner or operator of a vessel for which a commercial vessel permit for Gulf reef fish or a charter vessel/headboat permit for Gulf reef fish has been issued, as required under §§ 622.4(a)(2)(v) and 622.4(a)(1)(i), respectively, that incidentally catches a smalltooth sawfish must--
          (i) Keep the sawfish in the water at all times;
          (ii) If it can be done safely, untangle the line if it is wrapped around the saw;
          (iii) Cut the line as close to the hook as possible; and
          (iv) Not handle the animal or attempt to remove any hooks on the saw, except for with a long-handled dehooker.

        7. In § 622.31, paragraph (n) is added to read as follows:

          § 622.31
          Prohibited gear and methods.

          (n) Gulf reef fish other than sand perch or dwarf sand perch may not be used as bait in any fishery, except that, when purchased from a fish processor, the filleted carcasses and offal of Gulf reef fish may be used as bait in trap fisheries for blue crab, stone crab, deep-water crab, and spiny lobster.

        8. In § 622.34, a sentence is added at the end of paragraph (l) to read as follows:

          § 622.34
          Gulf EEZ seasonal and/or area closures.

          (l) * * * Also note that if commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession limits, are on board the vessel, no bag limit of Gulf reef fish may be possessed, as specified in § 622.39(a)(5).

        9. In § 622.36, a sentence is added at the end of paragraph (a) to read as follows:

          § 622.36
          Seasonal harvest limitations.
          (a) * * * Also note that if commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession limits, are on board the vessel, no bag limit of Gulf reef fish may be possessed, as specified in § 622.39(a)(5).

        10. In § 622.37, paragraph (d)(4) is added to read as follows:

          § 622.37
          Size limits.

          (d) * * *
          (4) A person aboard a vessel that has a Federal commercial vessel permit for Gulf reef fish and commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession limits, may not possess any Gulf reef fish that do not comply with the applicable commercial minimum size limit.

        11. In § 622.38, a sentence is added at the end of paragraph (d)(1) introductory text to read as follows:

          § 622.38
          Landing fish intact.

          (d) * * *
          (1) * * * See § 622.31(m) regarding a prohibition on the use of Gulf reef fish as bait.

        12. In § 622.39, paragraph (a)(2)(iii) is revised, and paragraph (a)(5) is added to read as follows:

          § 622.39
          Bag and possession limits.
          (a) * * *
          (2) * * *
          (iii) For a species/species group when its quota has been reached and closure has been effected, provided that no commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession limits, are on board as specified in § 622.39(a)(5).

          (5) A person aboard a vessel that has a Federal commercial vessel permit for Gulf reef fish and commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession limits, may not possess Gulf reef fish caught under a bag limit.

          § 622.41
          [Amended]
          13. In § 622.41, paragraph (l)(2) is removed and reserved.

        14. In § 622.43, paragraph (a)(1)(iii) is removed; the suspension of paragraph (a)(1)(i) is lifted; and paragraph (a)(1)(i) is revised to read as follows:

          § 622.43
          Closures.
          (a) * * *
          (1) * * *
          (i) Commercial quotas. The application of bag limits described in this paragraph (a)(1)(i) notwithstanding, bag limits of Gulf reef fish may not be possessed on board a vessel with commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession limits, on board, as specified in § 622.39(a)(5).
          (A) If the recreational fishery for the indicated species is open, the bag and possession limits specified in § 622.39(b) apply to all harvest or possession in or from the Gulf EEZ of the indicated species, and the sale or purchase of the indicated species taken from the Gulf EEZ is prohibited. In addition, the bag and possession limits for red snapper, when applicable, apply on board a vessel for which a commercial permit for Gulf reef fish has been issued, as required under § 622.4(a)(2)(v), without regard to where such red snapper were harvested.
          (B) If the recreational fishery for the indicated species is closed, all harvest or possession in or from the Gulf EEZ of the indicated species is prohibited.

          PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES

        15. The authority citation for part 635 continues to read as follows:

          Authority:
          16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

        16. In § 635.4, the second sentence of paragraph (m)(1) is revised to read as follows:

          § 635.4
          Permits and fees.

          (m) * * *
          (1) * * * A renewal application must be submitted to NMFS, at an address designated by NMFS, at least 30 days before a permit's expiration to avoid a lapse of permitted status. * * *

      [FR Doc. E6-7587 Filed 5-17-06; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AV52
        [FWS-R4-ES-2008-0047]
        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Louisiana Black Bear

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period, notice of availability of draft economic analysis, and amended required determinations.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the proposed designation of critical habitat for the Louisiana black bear (Ursus americanus luteolus) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of a draft economic analysis (DEA) and an amended required determinations section of the proposal. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the revised proposed rule, the associated DEA, and the amended required determinations section. If you submitted comments previously, you do not need to resubmit them because we have already incorporated them into the public record and will fully consider them in preparation of the final rule.

          DATES:
          We will consider comments received on or before December 12, 2008.

          ADDRESSES:
          You may submit comments by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R4-ES-2008-0047; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

          We will not accept e-mail or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the “Public Comments” section below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Jim Boggs, Supervisor, U.S. Fish and Wildlife Service, Louisiana Field Office, 646 Cajundome Blvd., Suite 400, Lafayette, LA 70506; telephone: 337-291-3100; facsimile: 337-291-3139. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Public Comments

        We will accept written comments and information during this reopened comment period on our proposed designation of critical habitat for the Louisiana black bear that was published in the Federal Register on May 6, 2008 (73 FR 25354), our draft economic analysis of the proposed designation, and the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

        (1) The reasons why we should or should not designate habitat as critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.).
        (2) Specific information on:
        (a) The distribution of the Louisiana black bear;
        (b) The amount and distribution of Louisiana black bear habitat; and
        (c) Which habitat contains the features essential for the conservation of the species and why.
        (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
        (4) Any foreseeable economic, national security, or other relevant impacts that may result from the proposed designation and, in particular, any impacts on small entities, and the benefits of including or excluding areas that exhibit these impacts.
        (5) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments;
        (6) Whether the benefits of excluding any particular area from critical habitat outweigh the benefits of including that area as critical habitat under section 4(b)(2) of the Act, after considering the potential impacts and benefits of the proposed critical habitat designation, and more specifically, whether U.S. Department of Agriculture (USDA) Wetland Reserve Program permanent easements on privately owned lands provide sufficient protection and management to justify their exclusion from critical habitat on that basis.
        (7) Information on the extent to which the description of economic impacts in the DEA is complete and accurate.
        (8) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the DEA, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.

        You may submit your comments and materials concerning the proposed rule or DEA by one of the methods listed in the ADDRESSES section. We will not consider comments sent by e-mail or fax or to an address not listed in the ADDRESSES section.
        If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.

        Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule and draft economic analysis, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Louisiana Field Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule and the DEA on the Internet at http://www.regulations.gov at Docket Number FWS-R4-ES-2008-0047, or by mail from the Louisiana Field Office (see FOR FURTHER INFORMATION CONTACT section).
        Background

        It is our intent to discuss only those topics directly relevant to the designation of critical habitat. For more information on previous Federal actions concerning the Louisiana black bear, refer to the proposed designation of critical habitat published in the Federal Register on May 6, 2008 (73 FR 25354). On December 2, 1993, we proposed critical habitat for the Louisiana black bear (58 FR 63560). That proposal had a 90-day comment period, ending March 2, 1994. We then reopened the public comment period from March 7, 1994 (59 FR 10607) through April 4, 1994. During that reopened comment period, we held a public hearing in New Iberia, Louisiana, on March 23, 1994. On April 1, 1994, we extended the reopened comment period through May 25, 1994, and announced two more public hearings (May 10, 1994, in West Monroe, Louisiana, and May 11, 1994, in New Iberia, Louisiana) (59 FR 15366). We never published a final rule designating critical habitat.

        On September 6, 2005, Mr. Harold Schoeffler and Louisiana Crawfish Producers Association-West filed suit in U.S. District Court for the Western District of Louisiana (Civil Action No. CV05-1573 (W.D. La.)) challenging the Service's failure to designate critical habitat for the Louisiana black bear. On June 26, 2007, the District Court ordered the Service to withdraw the December 2, 1993, proposed critical habitat rule and create a new proposed critical habitat designation by no later than 4 months from the date of the judgment and to publish a final designation by no later than 8 months from the date of the proposed or new rule. On September 5, 2007, following a settlement agreement, the Court revised its order to require the Service to: (1) Withdraw the December 2, 1993, proposed rule and submit a prudency determination and, if prudent, a new proposed critical habitat designation to the Office of the Federal Register by April 26, 2008; and (2) submit a final critical habitat determination, if applicable, to the Office of the Federal Register by February 26, 2009. On May 6, 2008, we published our proposed rule to designate critical habitat for the Louisiana black bear (73 FR 25394) in accordance with section 4(b)(2) of the Act. We concurrently withdrew the 1993 proposal and made a new prudency determination. In total, we proposed approximately 1,330,000 acres (538,894 hectares (ha)) of critical habitat located in Avoyelles, East Carroll, Catahoula, Concordia, Franklin, Iberia, Iberville, Madison, Pointe Coupee, Richland, St. Martin, St. Mary, Tensas, West Carroll, and West Feliciana Parishes, Louisiana. For more information on the threatened Louisiana black bear or its habitat, refer to the final listing rule published in the Federal Register on January 7, 1992 (57 FR 588), and to our 1995 final recovery plan for the bear, which is available online at http://www.regulations.gov (at Docket Number FWS-R4-ES-2008-0047) or from the Louisiana Field Office (see FOR FURTHER INFORMATION CONTACT).
        Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
        Draft Economic Analysis
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We have prepared a DEA of our May 6, 2008 (73 FR 25354), proposed rule to designate critical habitat for the Louisiana black bear.
        The intent of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for the Louisiana black bear. The DEA quantifies the economic impacts of all potential conservation efforts for the Louisiana black bear; some of these costs will likely be incurred regardless of whether we designate critical habitat. The economic impact of the proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we may consider in the final designation of critical habitat. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and incremental impacts likely to occur if we finalize the proposed critical habitat.
        The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for the bear over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to forecast activity levels for projects beyond a 20-year timeframe. It identifies potential incremental costs as a result of the proposed critical habitat designation; these are those costs attributed to critical habitat over and above those baseline costs attributed to listing. The DEA quantifies economic impacts of Louisiana black bear conservation efforts associated with the following categories of activity: (1) Oil and gas exploration and development; (2) species/habitat management; (3) recreational and residential development; (4) agriculture; (5) transportation; and (6) forestry. Due to uncertainty in the amount of oil and gas development over the next 20 years, cost estimates were calculated for a low scenario of oil and gas development (one-third of the historical rate) and a high scenario (continuation of the historical rate).

        The pre-designation (1992 to 2008) impacts associated with species conservation activities for the Louisiana black bear in areas proposed as critical habitat are approximately $68.4 to $76.6 million applying a 3 percent discount rate, and $84.9 to $97.0 million applying a 7 percent discount rate. The post-designation (2009 to 2028) baseline impacts (those estimated to occur regardless of the critical habitat designation) associated with species conservation were estimated to range from $9.0 million to $19.0 million applying a 3 percent discount rate, or $6.7 million to $14 million applying a 7 percent discount rate). Under a low oil and gas development scenario, over 50 percent of post-designation baseline economic impacts are related to species management and 28 percent are related to oil and gas development. Under the high scenario, oil and gas exploration and development accounted for 65 percent of post-designation baseline economic impacts and species management accounted for 25 percent. Development and agriculture related impacts comprise approximately 20 to 11 percent of the impacts, under the low and high scenarios, respectively.
        All incremental impacts attributed to the proposed critical habitat designation are expected to be associated with oil and gas activities. The DEA estimates the post-designation incremental economic impacts for the next 20 years to range from $1.5 million to 8.6 million, applying a 3 percent discount rate, or $1.1 million to $6.3 million applying a 7 percent discount rate. The range in values of incremental costs is a result of the uncertainty in forecasting the number of new wells that are likely to be drilled in the next 20 years. Incremental impacts are not anticipated for other activities (including areas considered for exclusion) potentially affected by the critical habitat designation.
        Post-designation baseline impacts for areas proposed for exclusion were calculated separately from areas proposed as critical habitat. Those impacts are related to the purchase of Wetlands Reserve Program easements and associated habitat management practices by the USDA Natural Resources Conservation Service, and are estimated to be approximately $98.7, million applying a 3 percent discount rate, and $73.0 million, applying a 7 percent discount rate.
        Only the incremental costs that may result from the designation of critical habitat, over and above the costs associated with species protection under the Act more generally, may be considered in designating critical habitat; therefore, the methodology for distinguishing these two categories of costs is important. In the absence of critical habitat, Federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered species or threatened species—costs associated with such actions are considered baseline costs. Once an area is designated as critical habitat, proposed actions that have a Federal nexus in this area also will require consultation and potential modification to ensure that the action does not result in the destruction or adverse modification of designated critical habitat—costs associated with these actions are considered incremental costs. Incremental consultation that takes place as a result of critical habitat designation may fall into one of three categories: (1) Additional effort to address adverse modification in a new consultation; (2) re-initiation of consultation to address effects to critical habitat; and (3) incremental consultation resulting entirely from critical habitat designation (i.e., where a proposed action may affect unoccupied critical habitat). However, because no unoccupied habitat is being proposed for designation, no consultations in category 3 are projected.
        As stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusions will not result in the extinction of this species.
        Required Determinations—Amended
        In our May 6, 2008, proposed rule (73 FR 25354), we indicated that we would defer our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have now made use of the DEA data in making these determinations. In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act, the Paperwork Reduction Act, the National Environmental Policy Act, and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). However, based on the DEA data, we revise our required determination concerning the Regulatory Flexibility Act.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of our final rule making.
        According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

        To determine if the proposed designation of critical habitat for the Louisiana black bear would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as oil and gas exploration and development, species management, residential development, forestry, agriculture, and transportation. In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat affects activities conducted, funded, permitted, or authorized by Federal agencies.
        If we finalize this proposed critical habitat designation, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
        In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for the Louisiana black bear. Based on that analysis, only small business entities that rely on oil and gas exploration and development were identified as entities that could be affected by the incremental impacts from the proposed rule. Impacts described in Appendix A of the DEA are predominantly associated with crude petroleum and natural gas extraction; liquid natural gas exploration; and oil and gas well drilling activities in areas proposed for final critical habitat for the Louisiana black bear. These impacts would be expected to be borne by 45 small businesses that operate in the oil and gas exploration and development industry at the time of final critical habitat designation. The average cost to a small business over the next 20 years is estimated to range from $25,000 to $141,000, discounted at 7 percent. Please refer to our Draft Economic Analysis of the proposed critical habitat designation for a more detailed discussion of potential economic impacts.
        In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. We have identified 45 small entities that may be impacted by the proposed critical habitat designation. For the above reasons and based on currently available information, we certify that if promulgated, the proposed designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
        Authors
        The primary authors of this notice are the staff members of the Louisiana Field Office, Southeast Region, U.S. Fish and Wildlife Service.
        Authority

        The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

          Dated: October 30, 2008.
          Lyle Laverty,
          Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. E8-26733 Filed 11-10-08; 8:45 am]
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