        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 223 and 224
        [Docket No. 121204680-3387-01]
        RIN 0648-XC387
        Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List the Humphead Wrasse as Threatened or Endangered Under the Endangered Species Act

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

          ACTION:
          Notice of 90-day petition finding, request for information.

          SUMMARY:

          We (NMFS) announce a 90-day finding on a petition to list the humphead wrasse (Cheilinus undulatus) as threatened or endangered and designate critical habitat under the Endangered Species Act (ESA). We find that the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. Accordingly, we will conduct a review of the status of this species to determine if the petitioned action is warranted. To ensure that the status review is comprehensive, for 60 days we are soliciting information pertaining to this species from any interested party.

          DATES:
          Information and comments on the subject action must be received by April 29, 2013.

          ADDRESSES:
          You may submit information, identified by the code NOAA-NMFS-2013-0001, by any of the following methods:
          • Electronic Submissions: Submit all electronic information via the Federal eRulemaking Portal http://www.regulations.gov. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0001, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: NMFS, Pacific Islands Regional Office, Regulatory Branch Chief, 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814.
          • Hand delivery: You may hand deliver written information to our office during normal business hours at the street address given above.

            Instructions: All information received is a part of the public record and may be posted to http://www.regulations.gov without change. All personally identifiable information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. We will accept anonymous submissions. Attachments to electronic comments will be accepted in Microsoft Word, Excel, Corel WordPerfect, or Adobe PDF file formats only.

          FOR FURTHER INFORMATION CONTACT:
          Krista Graham, NMFS Pacific Islands Regional Office, 808-944-2238; or Lisa Manning, NMFS Office of Protected Resources, 301-427-8466.

        SUPPLEMENTARY INFORMATION:

        Background

        On October 31, 2012, we received a petition from the WildEarth Guardians to list the humphead wrasse (Cheilinus undulatus) as threatened or endangered under the ESA and to designate critical habitat concurrent with the listing under the ESA. Copies of this petition are available from us (see ADDRESSES, above).
        ESA Statutory and Regulatory Provisions and Evaluation Framework

        Section 4(b)(3)(A) of the ESA of 1973, as amended (U.S.C. 1531 et seq.), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary of Commerce make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish the finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we find that substantial scientific or commercial information in a petition indicates the petitioned action may be warranted (a “positive 90-day finding”), we are required to promptly commence a review of the status of the species concerned, which includes conducting a comprehensive review of the best available scientific and commercial information. Within 12 months of receiving the petition, we must conclude the review with a finding as to whether, in fact, the petitioned action is warranted. Because the finding at the 12-month stage is based on a significantly more thorough review of the available information, a “may be warranted” finding at the 90-day stage does not prejudge the outcome of the status review.
        Under the ESA, a listing determination may address a “species,” which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). A joint NOAA-U.S. Fish and Wildlife Service (USFWS) policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (“DPS Policy”; 61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively; 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, the determination of whether a species is threatened or endangered shall be based on any one or a combination of the following five section 4(a)(1) factors: the present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
        ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(b)) define “substantial information” in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. When evaluating whether substantial information is contained in a petition, we must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).
        At the 90-day stage, we evaluate the petitioner's request based upon the information in the petition including its references, and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioner's sources and characterizations of the information presented, if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude that it supports the petitioner's assertions. Conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone negates a positive 90-day finding, if a reasonable person would conclude that the unknown information itself suggests an extinction risk of concern for the species at issue.
        To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species at issue faces extinction risk that is cause for concern; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species at issue (e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate the potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1).
        Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion, then we assess the potential significance of that negative response.
        Humphead Wrasse Species Description

        The humphead wrasse is a large, long-lived, slow growing, and naturally rare species of the Indo-West Pacific. Known by several other common names, including Napoleon wrasse, giant wrasse, and Maori wrasse, it is the largest species within its family, Labridae; and one of the largest of all reef fishes (Donaldson and Sadovy, 2001). Humphead wrasse are thought to reach sizes of over 200 cm; however, records of fish greater than 150 cm (fork length) are apparently lacking (Choat et al., 2006). Humphead wrasse reach sexual maturity at 5-7 years and 35-85 cm total length (TL), and can live at least 30 years (Sadovy de Mitcheson et al., 2010; Sadovy et al., 2003; Donaldson and Sadovy, 2001). The humphead wrasse is a carnivorous predator with a diet that includes a variety of reef-associated animals, including molluscs, crustaceans, sea urchins, fishes, and starfishes—including the toxic crown-of-thorns starfish (Donaldson and Sadovy, 2001). They are generally solitary, but can occur in small groups and are known to congregate to form spawning aggregations. Spawning activity is tidally influenced and, depending on location, occurs during multiple months or every month of the year (Colin, 2010; Sadovy et al., 2003).

        Humphead wrasse undergo changes in body form, color, and sex as they grow and mature. Small juveniles are pale with black markings; larger juveniles become pale green with black markings. Adults are a striking blue/green with large scales, intricate markings around the eyes, and a yellow margin on the caudal fin. Large adults also develop a large bump on their forehead and thickened, prominent lips. As with other wrasses and some other reef fish species, humphead wrasse are protogynous hermaphrodites, meaning males start out as females and undergo a sexual transition (Choat et al., 2006; Sadovy et al., 2003).

        The humphead wrasse ranges throughout the tropical and sub-tropical Indo-Pacific, from Egypt, the eastern coast of Africa, and Madagascar, throughout all of Southeast Asia; north to southern Japan; south to northern Australia; and eastward to Fiji, the Marshall Islands, and the Cook Islands (Russell, 2004; Sadovy et al., 2003). Within U.S. waters, humphead wrasse occur in American Samoa, Guam, Commonwealth of the Northern Mariana Islands (CNMI), and the Line Islands (Russell, 2004; Sadovy et al., 2003). Within this range, distribution of the fish is patchy.

        Humphead wrasses are typically associated with well-developed coral reefs. Adult humphead wrasse are thought to prefer steep outer reef edges, channels, and lagoon reef slopes at about 2-60 m depth (Sadovy et al., 2003; Donaldson and Sadovy, 2001). Small, post-settled humphead wrasse have been observed in branching hard and soft corals, coral rubble, and seagrasses (Tupper, 2007; Sadovy et al., 2003). Juveniles are more cryptic than adults and are often associated with denser coral reefs and thickets, coral rubble, bushy macroalgae, and seagrasses (Tupper, 2007; Sadovy et al., 2003). Juveniles typically occur inshore, while larger fish are more common in deeper, outer reefs or lagoons (Sadovy et al., 2003).
        Analysis of the Petition
        The petition contains a detailed narrative justification for the recommended measure and provides information on the species' taxonomy, geographic distribution, habitat characteristics, population status and trends, and threats. The petition is accompanied by appropriate supporting documentation. Below is a synopsis of our analysis of the information provided in the petition and readily available in our files.
        Humphead Wrasse Status

        The petitioner acknowledges that data on total numbers, globally or nationally, are not available for this species; however, humphead wrasse densities are provided by several studies cited in the petition. In general, these studies indicate that densities of humphead wrasse are low (less than 20 per 10,000 square meters), even within preferred habitats (Gillet, 2010; Sadovy et al., 2003). Biennial surveys conducted by NOAA's Pacific Islands Fisheries Science Center (PIFSC) during 2002-2012 at 32 U.S. Pacific islands indicate that the species is not common at any of the survey sites (PIFSC, unpublished data). The exception is Wake Atoll, where humphead wrasse are more abundant and more frequently encountered in surveys (PIFSC, unpublished data; NOAA, 2009). Wake Atoll is very isolated, relatively pristine and, as of 2009, part of the Pacific Remote Islands Marine National Monument, where commercial fishing is banned out to 50 nautical miles.

        The petitioner cites studies that show humphead wrasse densities are lower in areas that are fished, and very low or zero in areas with high fishing pressure and/or large human populations (Gillet, 2010; Sadovy et al., 2003). Results of 24 underwater visual census surveys from 11 range states were reviewed by Sadovy et al. (2003) and show that there is a decline in both density and body size of humphead wrasse in areas of higher fishing pressure. Landings data are limited, but severe declines in humphead wrasse landings have been reported from some locations, such as Borneo and Malaysia, over relatively short time scales (Scales et al., 2007; Sadovy et al., 2003). Interviews conducted in various locations throughout the species' range, including CNMI, Philippines, Australia, Malaysia and Fiji, indicate widely shared perceptions among elder fishers that abundance of humphead wrasse has declined and that this decline is largely attributed to fishing pressure (CNMI Final Grant Report, 2010; Sadovy et al., 2003). Humphead wrasse are also considered extirpated or nearly extirpated from some locations at the edge of its range, including parts of Fiji, southwestern Indian Ocean and the South China Sea (Sadovy et al., 2003).
        Threats to Humphead Wrasse
        The petition identifies overutilization and inadequate protections as major threats to this species. Other threats identified in the petition but not explicitly linked to humphead wrasse status include destruction and degradation of coral reef habitat, human population growth, climate change, and ocean acidification. The petitioner also cites natural rarity as a factor contributing to the species' risk of extinction.

        The humphead wrasse is highly prized within the Indo-Pacific region as a luxury food fish, primarily in Hong Kong, Taiwan, and Singapore (Sadovy et al., 2003; Erdmann and Pet-Soede, 1997), and garners the highest price of all fishes in the live reef fish food trade (Sadovy de Micheson et al., 2010). Demand for this fish is expected to remain high, and fishing efforts are likely to continually extend into new areas as local populations are fished out (Sadovy et al., 2003; Burke et al., 2002; Barber and Pratt, 1997).

        The petitioner provides references that suggest this species is vulnerable to fishing pressure. For example, Scales et al. (2007) documented exponential declines in relative abundance of humphead wrasse in under a decade in northern Borneo and suggest that serial depletion is occurring. Additionally, the humphead wrasse has been noted to experience a greater than 50 percent decline over the last three generations in locations where data are available (Russell, 2004). This decline is predicted to continue or even accelerate with the expected growth of the live reef fish food trade (Russell, 2004). Also, the international live-fish fishery appears to be largely focused on juveniles (fish under 500 mm TL), which are then held in cages until they grow to market size (Sadovy de Micheson et al., 2010). This practice exacerbates the potential for overexploitation because fish are removed from the wild prior to reproducing.

        The petition discusses how, in addition to other general threats to coral reefs, humphead wrasse fishing practices are posing a threat to humphead wrasse habitat. Stunning and capturing humphead wrasse by applying sodium cyanide to reefs, a common method of live-capture, damages corals and other reef organisms (Bryant et al., 1998; Barber and Pratt, 1997). This practice is prohibited in many areas but is still used in some areas for collecting humphead wrasse for the live reef fish food trade (Sadovy et al, 2003; Bryant et al., 1998; Barber and Pratt, 1997).

        The petition proposes that exploitation threats to this species are not being addressed, a result of the lack of protective measures in most countries and the inadequacy of regulatory mechanisms where they do exist. Although this species receives some protections through local fishing restrictions, Sadovy et al. (2003) indicates that, with few exceptions, protective legislation is largely ineffective due to the lack of enforcement or permitted exemptions. Additionally, despite international trade concerns and protections granted with the species' listing in Appendix II of the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES), there is a body of evidence indicating illegal, unregulated, and unreported fishing and trade of the humpback wrasse (CITES Workshop Report, 2010).
        Petition Finding
        After reviewing the petitioner's information and the information in our files, we have determined there is substantial information indicating that the petitioned action may be warranted. The low natural densities and other life history characteristics of humphead wrasse, coupled with evidence of declines in abundance, overutilization, and apparent inadequacy of existing regulatory mechanisms and protections for this species and its coral reef habitat are cause for concern. Because we have found that substantial information was presented on the above factors, we will commence a status review of the species. During our status review, we will fully address all five of the factors set out in section 4(a)(1) of the ESA. At the conclusion of the status review, we will determine whether the petitioned action is warranted. As previously noted, a “may be warranted” finding does not prejudge the outcome of the status review.
        Information Solicited
        As required by section 4(b)(3)(B) of the ESA and NMFS' implementing regulations (50 CFR 424.14(b)(2)), we are to commence a review of the status of the species and make a determination within 12 months of receiving the petition as to whether the petitioned action is warranted. We intend that any final action resulting from this review be as accurate and as effective as possible. Therefore, we are opening a 60-day public comment period to solicit information from the public, government agencies, the scientific community, industry, and any other interested parties on the status of humphead wrasse throughout its range including: (1) Historical and current abundance, distribution, and population trends; (2) biological information (life history, population genetics, population connectivity, etc.); (3) status of historical and current habitat, including spawning aggregation sites; (4) regulatory mechanisms and management measures, including enforcement thereof, designed to manage fishing or protect habitats; (5) any current or planned activities that may adversely impact the species; and (6) ongoing or planned efforts to protect and restore the species and their habitats. We request that all information be accompanied by: (1) supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents. Section 4(b)(1)(A) of the ESA and NMFS' implementing regulations (50 CFR 424.11(b)) require that a listing determination be made solely on the basis of the best scientific and commercial data, without consideration of possible economic or other impacts of the determination. During the 60-day public comment period we are seeking information related to the status of humphead wrasse throughout its range.
        Peer Review

        On July 1, 1994, NMFS, jointly with the USFWS, published a series of policies regarding listings under the ESA, including a policy for peer review of scientific data (59 FR 34270). The intent of the peer review policy is to ensure listings are based on the best scientific and commercial data available. The Office of Management and Budget issued its Final Information Quality Bulletin for Peer Review on December 16, 2004. The Bulletin went into effect June 16, 2005, and generally requires that all “influential scientific information” and “highly influential scientific information” disseminated on or after that date be peer reviewed. Because the information used to evaluate this petition may be considered “influential scientific information,” we solicit the names of recognized experts in the field that could take part in the peer review process for this status review (see ADDRESSES). Independent peer reviewers will be selected from the academic and scientific community, tribal and other native groups, Federal and state agencies, the private sector, and public interest groups.
        References Cited

        A complete list of references is available upon request from the Pacific Islands Regional Office, Protected Resource Division (see ADDRESSES).

          Authority:

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

          Dated: February 22, 2013.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2013-04718 Filed 2-27-13; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [Docket No. 031017264-3317-02; I.D. 100103C]
        RIN 0648-AR48
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Referendum Procedures for a Potential Gulf of Mexico Red Snapper Individual Fishing Quota Program

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

          ACTION:
          Proposed rule; revision and request for comments.

          SUMMARY:
          NMFS issues this proposed rule to provide information about the schedule, procedures, and eligibility requirements for participating in referendums to determine whether an individual fishing quota (IFQ) program for the Gulf of Mexico commercial red snapper fishery should be prepared and, if so, whether it should subsequently be submitted to the Secretary of Commerce (Secretary) for review. This proposed rule revises a previously published proposed rule based on public comments that were received on the initial proposed rule. In response to those public comments, this proposed rule includes additional options regarding the procedure for weighting votes by eligible participants. NMFS is soliciting additional public comment on this proposed rule and, particularly, comments on the vote-weighting options. The intended effect of this proposed rule is to implement the referendums consistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

          DATES:
          Comments must be received no later than 5 p.m., eastern time, on January 20, 2004.

          ADDRESSES:
          Written comments on the proposed rule must be sent to Phil Steele, Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702. Comments also may be sent via fax to 727-570-5583. Comments will not be accepted if submitted via e-mail or Internet.
          Copies of supporting documentation for this proposed rule, which includes a regulatory impact review (RIR) and a Regulatory Flexibility Act Analysis (RFAA) are available from NMFS at the address above.

          FOR FURTHER INFORMATION CONTACT:

          Phil Steele, telephone: 727-570-5305, fax: 727-570-5583, e-mail: phil.steele@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        The reef fish fishery in the exclusive economic zone (EEZ) of the Gulf of Mexico is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council (Council) and is implemented under the authority of the Magnuson-Stevens Act by regulations at 50 CFR part 622.
        The following is a restatement of the material contained in the original proposed rule, with minor changes regarding: Scheduling; date and location of the Council meeting where results of the initial referendum, if approved, would be presented; and clarification of an example stated in the original proposed rule regarding the landings categories (poundage ranges) to be used. See “Additional Alternatives for a Vote-Weighting Formula,” which follows this restatement of the original proposed rule, for a description of other vote-weighting alternatives that are under consideration and are provided for public comment.  Restatement of the Original Proposed Rule Material.
        Background
        During the early to mid-1990s, the Council began development of an IFQ program for the commercial red snapper fishery in the Gulf of Mexico. Development of this program involved extensive interaction with the fishing industry, other stakeholders, and the public through numerous workshops, public hearings, and Council meetings. The program was approved by NMFS and was scheduled for implementation in 1996. However, Congressional action in late 1995 prohibited implementation of any new IFQ programs in any U.S. fishery, including the Gulf of Mexico red snapper fishery, before October 2000. Subsequent Congressional action, passage of HR5666, incorporated this prohibition and related provisions into the 1996 amendments to the Magnuson-Stevens Act and ultimately extended the prohibition until October 1, 2002. However, HR5666 also provided authority to the Council to develop a profile for any fishery under its jurisdiction that may be considered for a quota management system.

        Under Section 407(c) of the Magnuson-Stevens Act, the Council is authorized to prepare and submit a plan amendment and regulations to implement an IFQ program for the commercial red snapper fishery, but only if certain conditions are met. First, the preparation of such a plan amendment and regulations must be approved in a referendum. If the result of the referendum is approval, the Council would be responsible for preparing any such plan amendment and regulations through the normal Council and rulemaking processes that would involve extensive opportunities for industry and public review and input at various Council meetings, public hearings, and during public comment periods on the plan amendment and regulations. Second, the submission of the plan amendment and regulations to the Secretary for review and approval or disapproval must be approved in a subsequent referendum. Both referendums must be conducted in accordance with Section 407(c)(2). Section 407(c)(2) also specifies that, “Prior to each referendum, the Secretary, in consultation with the Council, shall: (A) identify and notify all such persons holding permits with red snapper endorsements and all such vessel captains; and (B) make available to all such persons and vessel captains information about the schedule, procedures, and eligibility requirements for the referendum and the proposed individual fishing quota program.”
        Purpose of This Proposed Rule and the Referendums
        NMFS, in accordance with the provisions of Section 407(c) of the Magnuson-Stevens Act, will conduct referendums to determine, based on the majority vote of eligible voters, whether a plan amendment and regulations to implement an IFQ program for the Gulf of Mexico commercial red snapper fishery should be prepared and, if so, whether any subsequently prepared plan amendment and regulations should be submitted to the Secretary for review and approval or disapproval. The primary purpose of this proposed rule is to notify potential participants in the referendums, and members of the public, of the procedures, schedule, and eligibility requirements that NMFS would use in conducting the referendums. The procedures and eligibility criteria used for purposes of conducting the referendums have no bearing on the procedures and eligibility requirements that might be applied in any future IFQ program that may be developed by the Council. The provisions of any proposed IFQ program would be developed independently by the Council through the normal plan amendment and rulemaking processes that would involve extensive opportunities for public review and comment during Council meetings, public hearings, and public comment on any proposed rule. There is no relation between eligibility to vote in the referendums, as described in this proposed rule, and any eligibility regarding a subsequent IFQ program.
        Referendum Processes
        Who Would Be Eligible to Vote in the Referendums?
        Section 407(c)(2) of the Magnuson-Stevens Act establishes criteria regarding eligibility of persons to vote in the referendums. Those criteria are subject to various interpretations. After careful consideration of those criteria and the practicality and fairness of several possible interpretations, NMFS has determined that the following persons would be eligible to vote in the referendums.
        (I) For the initial referendum:

        (A) A person who according to NMFS permit records has continuously held their Gulf red snapper endorsement/Class I license from September 1, 1996, through the date of publication in the Federal Register of the final rule implementing these referendum procedures;

        (B) In the case of a Class 1 license that has been transferred through sale since September 1, 1996, the person that according to NMFS' permit records holds such Class 1 license as of the date of publication in the Federal Register of the final rule implementing these referendum procedures;

        (C) In the case of a Class 1 license that has been transferred through lease since September 1, 1996, both the final lessor and final lessee as of the date of publication in the Federal Register of the final rule implementing these referendum procedures, as determined by NMFS' permit records; and
        (D) A vessel captain who harvested red snapper under a red snapper endorsement in each red snapper commercial fishing season occurring between January 1, 1993, and September 1, 1996.
        (II) For the second referendum:

        (A) A person who according to NMFS permit records has continuously held their Gulf red snapper endorsement/Class I license from September 1, 1996 through the date of publication in the Federal Register of a subsequent notice announcing the second referendum;

        (B) In the case of a Class 1 license that has been transferred through sale since September 1, 1996, the person that according to NMFS' permit records holds such Class 1 license as of the date of publication in the Federal Register of a subsequent notice announcing the second referendum;

        (C) In the case of a Class 1 license that has been transferred through lease since September 1, 1996, both the final lessor and final lessee as of the date of publication in the Federal Register of a subsequent notice announcing the second referendum, as determined by NMFS' permit records; and
        (D) A vessel captain who harvested red snapper under a red snapper endorsement in each red snapper commercial fishing season occurring between January 1, 1993, and September 1, 1996.

        A person would only receive voting eligibility under one of the eligibility criteria, i.e., a person would not receive dual voting eligibility by being both a qualifying vessel captain and a qualifying holder of an endorsement/Class I license.
        NMFS will have sufficient information in the Southeast Regional Office fisheries permit database to identify those persons who would be eligible to vote in the referendums based on their having held a red snapper endorsement/Class 1 license during the required periods. However, NMFS did not have sufficient information to identify vessel captains whose eligibility would be based on the harvest of red snapper under a red snapper endorsement in each red snapper commercial fishing season occurring between January 1, 1993, and September 1, 1996. To obtain that information, NMFS prepared and distributed a fishery bulletin that described the general referendum procedures and provided a 20-day period (ending August 18, 2003) for submittal of detailed information by those vessel captains. That fishery bulletin was widely distributed to all Gulf reef fish permitees, including dealers, and to major fishing organizations, state fisheries directors, and others. Information received from that solicitation would be used to identify vessel captains whose eligibility to vote in the referendums is based on the red snapper harvest criterion.
        How Would Votes Be Weighted?
        Section 407(c)(2) of the Magnuson-Stevens Act requires that NMFS develop a formula to weight votes based on the proportional harvests under each eligible endorsement and by each eligible captain between the period January 1, 1993, and September 1, 1996. NMFS would obtain applicable red snapper landings data from the Southeast Fisheries Science Center reef fish logbook database. Information from NMFS' Southeast Regional Office permit database would be used to assign total applicable landings to each eligible voter (red snapper endorsement/Class 1 license holder, lessee/lessor, or vessel captain).

        The weighting procedure is complicated somewhat by requirements to protect the confidentiality of landings data, when the applicable landings history involves landings by different entities. To address confidentiality concerns, NMFS would establish a series of categories (ranges) of red snapper landings based on 5,000-lb (2,268-kg) intervals, e.g., 0-5,000 lb (0-2,268 kg); 5,001-10,000 lb (2,268-4,536 kg); etc., concluding with the interval that includes the highest documented landings. Each eligible voter's total landings between the period January 1, 1993, and September 1, 1996, would be attributed to the appropriate category. The overall average landings attributed to each category would be determined. That average number of pounds would be the vote-weighting factor, i.e., one vote for each such pound, for each eligible voter whose landings fall within that category. For example, if the overall average number of pounds attributed to the 5,001-10,000-lb (2,268-4,536-kg) category is 8,150 lb (3,697 kg), each eligible voter within that category would receive 8,150 votes.
        How Would the Vote Be Conducted?

        On or about January 23, 2004, NMFS would mail each eligible voter a ballot that would specify the number of votes (weighting) that that voter is assigned. NMFS would mail the ballots and associated explanatory information, via certified mail return receipt requested, to the address of record indicated in NMFS' permit database for endorsement/Class I license holders and, for vessel captains, to the address provided to NMFS by the captains during the prior information solicitation that ended August 18, 2003. All votes assigned to an eligible voter must be cast for the same decision, i.e., either all to approve or all to disapprove the applicable referendum question. The ballot must be signed by the eligible voter. Ballots must be mailed to Phil Steele, Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg, FL 33702. Ballots for the initial referendum must be received at that address by 4:30 p.m., eastern time, February 27, 2004; ballots received after that deadline would not be considered in determining the outcome of the initial referendum. Although it would not be required, voters may want to consider submitting their ballots by registered mail.
        How Would the Outcome of the Referendums Be Determined?

        Vote counting would be conducted by NMFS. Approval or disapproval of the referendums would be determined by a majority (i.e., a number greater than half of a total) of the votes cast. NMFS would prepare a fishery bulletin announcing the results of each referendum that is conducted and would distribute the bulletin to all Gulf reef fish permitees, including dealers, and to other interested parties. The results would also be posted on NMFS' Southeast Regional Office's Web site at http://caldera.sero.nmfs.gov.

        What Would Happen After the Initial Referendum?

        NMFS would present the results of the initial referendum at the March 8-11, 2004, Council meeting in Mobile, AL. If the initial referendum fails, the Council cannot proceed with preparation of a plan amendment and regulations to implement an IFQ program for the commercial red snapper fishery in the Gulf of Mexico. If the initial referendum is approved, the Council would be authorized, if it so decides, to proceed with development of a plan amendment and regulations to implement an IFQ program for the commercial red snapper fishery in the Gulf of Mexico. The proposed IFQ program would be developed through the normal Council and rulemaking processes that would involve extensive opportunities for industry and public review and input at various Council meetings, public hearings, and during public comment periods on the plan amendment and regulations. The plan amendment and regulations could only be submitted to the Secretary for review and approval or disapproval if in a second referendum approval of the submission was passed by a majority of the votes cast by the eligible voters as described in this proposed rule. NMFS would announce any required second referendum by publishing a notice in the Federal Register that would provide all pertinent information regarding the referendum. Any second referendum would be conducted in conformance with Section 407(c)(2) of the Magnuson-Stevens Act and the provisions outlined in this proposed rule.
        Background Information About a Potential IFQ Program

        In anticipation of the October 2002 expiration of the Congressional moratorium on development of IFQ programs, and recognizing that HR5666 provided the Council the authority to develop a profile for any fishery that may be considered for a quota management system, some members of the commercial red snapper fishery requested that the Council develop an IFQ profile for the fishery. Based on that request, the Council convened an Ad Hoc Red Snapper Advisory Panel (AHRSAP), comprised of participants in the commercial red snapper fishery and other individuals knowledgeable about the fishery and/or IFQ programs, to develop a profile. This profile, later referred to as an Individual Transferable Quota (ITQ) Options Paper for the Problems Identified in the Gulf of Mexico Red Snapper Fishery, provides background information about historical management of the red snapper fishery, problems in the fishery, management goals, and issues and management alternatives associated with a potential IFQ/ITQ program. The profile addresses such issues as: ITQ units of measurement (percentage of quota or pounds of red snapper), duration of ITQ rights, set-aside for non-ITQ catches under current commercial quota, actions to be taken if the quota increases or decreases, types of ITQ share certificates, initial allocation of ITQ shares and annual coupons (including eligibility, apportionment, transferability of landings histories, etc.), possible controls on ownership and transfer of ITQ shares, whether to include a “use it or lose it” provision, disposition of unused or sanctioned ITQ shares and coupons, possible landings restrictions, monitoring of ITQ share certificates and annual coupons, quota tracking, an appeals process, and size limit changes.
        This profile represents an outline of an IFQ program as envisioned by the AHRSAP, with input from the Council—it does not reflect any final decisions by the Council regarding the structure of a proposed IFQ program for the red snapper commercial fishery. The Council may consider the options in the profile, and perhaps a variety of other options, if it chooses to pursue development of an IFQ program for the fishery. However, for purposes of the initial referendum, the Council intentionally refrained from adopting the profile. Any subsequent development of a proposed IFQ program for the red snapper commercial fishery would be conducted through the normal Council and Federal rulemaking processes that ensure numerous opportunities for review and comment by industry participants and members of the public.
        Additional Alternatives for a Vote-Weighting Formula
        On October 27, 2003, NMFS published a proposed rule that described procedures and eligibility requirements for participating in referendums regarding a potential individual fishing quota (IFQ) program for the Gulf of Mexico commercial red snapper fishery; comments were requested through November 12, 2003 (68 FR 61178). Public comment received on that October 27, 2003, proposed rule expressed concern about the vote-weighting procedure, and specifically objected to allowing both a qualified lessor and qualified lessee fully weighted votes, resulting in double counting. In response to those public comments, NMFS is issuing a second proposed rule to include a broader range of potential options for weighting votes. NMFS is seeking public input regarding these or other options.

        NMFS evaluated several additional alternatives for a vote-weighting formula for the IFQ referendums. In addition to the one vote per-participant-per-pound approach specified in the initial proposed rule (68 FR 61178) each alternative below is based on varying the vote-per-pound weighting by specified eligible voting class based on their respective involvement in the fishery.
        NMFS is expressly seeking comments as to alternative approaches for weighting votes, whether they focus on the following or propose entirely new alternatives not addressed below.
        The following alternatives are not necessarily mutually exclusive and were considered individually and in combinations. For the purpose of these alternatives, the term “license” refers to a Class I license and/or endorsement, consistent with the context of Section 407(c)(2) of the Magnuson-Stevens Act.
        (1) Allocating one half (or some other fraction) of a vote per qualifying pound to the qualifying historical vessel captain. Section 407(c)(2) of the Magnuson-Stevens Act specifically identifies such vessel captains as eligible to vote in the referendums; thus, implicitly it acknowledges the need for some level of multiple counting, unless all current license holders, whose license was previously fished by a qualifying historical captain, are subject to the same pound to vote ratio (see alternative 5 below). Fractionalizing historical captains' pound to vote ratio would reduce the impact of weighting multiple votes by the pounds from a single license's landings history, but this option alone would not eliminate such multiple counting of landings associated with a single license;
        (2) Allocating one half vote (or some other fraction) per qualifying pound to both the lessor and lessee license holders to avoid double counting of the associated poundage. As is the case with historical captains, using this option alone would not eliminate the multiple counting of poundage associated with a single license. However, in combination with some fractionalization of historical captain weighting and associated reductions in lessor/lessee proportional votes, it would eliminate such multiple counting (see alternative 5);

        (3) Allocating one vote per pound of landings to both lessors and lessees, while allocating two votes per pound to license holders who are not involved in lease arrangements with their license. This option addresses the multiple counting of landings by allowing all poundage to be counted at least twice, which while actually increasing the quantity of pounds multiple counted would provide the same treatment for virtually all poundage. This would result in increasing the voting weight of landings associated with non-leased licenses to the same level as the landings associated with leased licenses, i.e., all pounds would be counted at least twice;
        (4) Votes could be weighted based on an individual's level of participation in the fishery, measured by length of time they held a license. This could be applied to all license holders, or some portion thereof, such as only lessors and lessees, and would prorate the respective weight of a vote based on the number of years of participation in the fishery. For example, using the 3-year time period established for historical captain eligibility, a participant could be awarded one vote per pound if they held a license for 3 or more years, two-thirds of a vote per pound if they held a license for less than 3 but at least 2 years, and one-third of a vote if they held it less than 2 years. Once again, this would not eliminate multiple counting of poundage, but would increase the weighting factor for longer-term participants in the fishery;
        (5) The total allowable weighted votes allocated to participants in each referendum could be capped by the total number of pounds harvested, which would eliminate all multiple counting of poundage. Then all participants with eligibility tied to a particular license would have their vote weighted at a ratio equal to all other participants associated with that license, so that their combined vote would be equal to one vote per one pound of landings associated with that license. For example, if a historical captain is eligible based on his landings under a specific license during the relevant time period, and that license is now held by a license holder who is not involved with lease arrangements with that license, but who is not the same historical captain, then each would get one-half of a vote per pound of landings associated with the license. In this example, should the current holder lease the same license, then each participant would have their vote weighted as one-third of a vote per pound, so that their combined vote would equal the total number of pounds associated with the license. While this option would eliminate all multiple counting, it is not directly tied to participation in the fishery.
        Classification
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The basis for this certification follows.

          The Magnuson-Stevens Act, as amended, provides the statutory basis for the proposed rule. The proposed rule would implement up to two referendums on a potential Individual Fishing Quota (IFQ) for the commercial red snapper fishery in the Gulf of Mexico, consistent with the requirements of the Magnuson-Stevens Act. The primary purpose of this proposed rule is to notify potential participants in the referendums, and members of the public, of the procedures, schedule, and eligibility requirements that NMFS would use in conducting the referendums.
          One hundred and thirty-seven entities have been identified as having a vessel permit with a red snapper Class 1 license during the specified eligibility time frame and, therefore, qualify for participation in the referendums. Approximately 37 of these licenses are currently being fished on vessels operated by other entities through lease arrangements. One additional vessel captain has been identified as a referendum qualifier. Although the number of Class 1 licenses and vessel captains is known with certainty, lease arrangements may be subject to cancellation prior to a referendum such that the total number of eligible entities due to lease arrangements is not known with certainty. Although new lease arrangements are also a possibility, such that the number of lease arrangements could increase from the current total, increased leasing is not expected since this would dilute the voting power of the Class 1 license holder, absent control over the subsequent vote by the lessee. Thus, it is expected that the number of lease qualifiers will decline by some unknown amount. Assuming, however, that all current qualifiers maintain their status, the total number of entities that qualify for participation in the referendum is 175.
          The total red snapper fishery is valued at approximately $10 million in ex-vessel revenue on an annual basis. Although participants in this fishery do not harvest red snapper exclusively, among those vessels that target red snapper (as determined by whether the revenues from red snapper on an individual trip were greater than the revenues from any other individual species), approximately 57 percent of annual revenues for these vessels came from red snapper sales. If all qualifiers target red snapper and all red snapper ex-vessel revenues are attributed to these participants, and assuming red snapper revenues equal 57 percent of total commercial revenues for these participants, the average ex-vessel revenue per entity is approximately $100,000 (($10 million/0.57)/175). If evaluated over the number of Class 1 licenses (137), the appropriate average revenue is approximately $128,000. Although it is logical to assume that the qualifiers target red snapper, these estimates are biased high since all red snapper revenues cannot be attributed to either categories of entities. Thus, the average ex-vessel revenue per entity is less than either figure.

          All referendum qualifiers that would be directly affected by the proposed rule are commercial fishing operations. The Small Business Administration defines a small business that engages in commercial fishing as a firm with receipts up to $3.5 million. Based on the revenue profile provided above, all commercial entities that would qualify for participation in the referendums are considered small entities. Since all qualifying entities would be affected by the proposed rule, it is concluded that the proposed rule would affect a substantial number of small entities.
          The outcome of “significant economic impact” can be ascertained by examining two issues: disproportionality and profitability. The disproportionality question is: Do the regulations place a substantial number of small entities at a significant competitive disadvantage to large entities? Since all the entities that would be affected by the proposed rule are considered small entities, the issue of disproportionality does not arise in the present case.
          The profitability question is: Do the regulations significantly reduce profit for a substantial number of small entities? Since the proposed rule would not directly affect fishery participation or harvest in any way, it would not reduce business profit for any fishery participants or related businesses. Profits are, therefore, not expected to be significantly reduced by the proposed action. On this basis, the proposed rule may be adjudged not to have a significant economic impact on a substantial number of small entities.

        As a result, an initial regulatory flexibility analysis was not prepared. Copies of the RIR and Regulatory Flexibility Act Analysis are available (see ADDRESSES).
        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 Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number.

        This rule contains collection-of-information requirements subject to the PRA which have been approved by OMB under control number 0648-0477. Public reporting burden is estimated to average 10 minutes for a response to an initial referendum regarding preparation of an IFQ program; 20 minutes for a response to a subsequent referendum; and 10 minutes per response for any information request regarding vessel captains, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed , and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).

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

          Dated: December 23, 2003.
          Rebecca J. Lent,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 03-32034 Filed 12-23-03; 3:17 pm]
      BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 226
        RIN 0648-AX04
        Endangered and Threatened Wildlife and Plants: Proposed Rulemaking to Designate Critical Habitat for the Threatened Southern Distinct Population Segment of North American Green Sturgeon

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

          ACTION:
          Extension of public comment period on proposed rule.

          SUMMARY:
          This notice extends for 45 days the public comment period on a proposed rule to designate critical habitat for the threatened Southern Distinct Population Segment of North American green sturgeon, as published on September 8, 2008, and corrected on October 7, 2008.

          DATES:
          The deadline for comments on the proposed rule will be extended from November 7, 2008, to December 22, 2008. Comments must be received by 5 p.m. Pacific standard time on December 22, 2008.

          ADDRESSES:
          You may submit comments on the proposed rule, identified by RIN 0648-AX04, by any of the following methods:

          • Electronic submissions: Submit all electronic public comments via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Fax: 1-562-980-4027, Attention: Melissa Neuman.
          • Mail: Submit written comments to the Chief, Protected Resources Division, Southwest Region, National Marine Fisheries Service, 650 Capitol Mall, Sacramento, CA 95814-4706.

          Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments (please enter N/A in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or PDF file formats only.

          FOR FURTHER INFORMATION CONTACT:
          Melissa Neuman, NMFS, Southwest Region (562) 980-4115, or Lisa Manning, NMFS, Office of Protected Resources (301) 713-1401.

        SUPPLEMENTARY INFORMATION:
        Background

        The Southern Distinct Population Segment of North American green sturgeon (Acipenser medirostris; hereafter, “Southern DPS”) was listed as threatened under the Endangered Species Act (ESA) on April 7, 2006 (71 FR 17757). A proposed rule to designate critical habitat for the Southern DPS of green sturgeon was published in the Federal Register on September 8, 2008 (73 FR 52084). On October 7, 2008, a notice was published in the Federal Register announcing a public workshop on October 16, 2008, and making a technical correction to the proposed rule concerning the map of proposed critical habitat for the Southern DPS in California (73 FR 58527). The areas proposed for designation include: coastal U.S. marine waters within 110 meters (m) depth from Monterey Bay, California (including Monterey Bay), north to Cape Flattery, Washington, including the Strait of Juan de Fuca, Washington, to its United States boundary; the Sacramento River, lower Feather River, and lower Yuba River in California; the Sacramento-San Joaquin Delta and Suisun, San Pablo, and San Francisco bays in California; the lower Columbia River estuary; and certain coastal bays and estuaries in California (Humboldt Bay), Oregon (Coos Bay, Winchester Bay, and Yaquina Bay), and Washington (Willapa Bay and Grays Harbor). The areas proposed for designation comprise approximately 325 miles (524 km) of freshwater river habitat, 1,058 square miles (2,739 sq km) of estuarine habitat, 11,927 square miles (30,890 sq km) of coastal marine habitat, and 136 square miles (352 sq km) of habitat within the Yolo and Sutter bypasses (Sacramento River, CA).
        Under section 7 of the ESA, Federal agencies are required to insure that any actions they carry out, authorize, or fund do not destroy or adversely modify designated critical habitat. A wide range of agency actions may be subject to the ESA section 7 consultation process including, but not limited to: the installation and operation of hydropower dams; the installation and operation of water diversions; in-water construction or alterations; dredging operations and disposal of dredge material; National Pollutant Discharge Elimination System permit activities and activities generating non-point source pollution (e.g., agricultural runoff); power plant operations; operations of liquefied natural gas projects; tidal or wave energy projects; discharges from desalination plants; commercial shipping (e.g., discharges, oil spills); aquaculture; bottom trawl fisheries; and habitat restoration activities.
        The deadline for comments on the proposed rule was November 7, 2008. This extension of the comment period until December 22, 2008, is in response to requests made by the public. We solicit additional information and comments from the public concerning this proposed rule, including information and comments on the biological basis supporting the proposed rule; the benefits of the proposed critical habitat designation to the Southern DPS of green sturgeon; and the economic, national security, and other relevant impacts of the proposed designation.

          Dated: October 28, 2008.
          James H. Lecky,
          Director, Office of Protected Resources, National Marine Fisheries Service.

      [FR Doc. E8-26155 Filed 10-31-08; 8:45 am]
      BILLING CODE 3510-22-S