[Federal Register: September 4, 2008 (Volume 73, Number 172)]
[Proposed Rules]
[Page 51617-51620]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04se08-17]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 0808051052-81144-01]
RIN 0648-AW85
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Reef Fish Fishery of the Gulf of Mexico; Referendum Procedures for a
Potential Gulf of Mexico Grouper and Tilefish Individual Fishing Quota
Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS issues this proposed rule to provide potential
participants information concerning a referendum for an individual
fishing quota (IFQ) program for the Gulf of Mexico (Gulf) commercial
grouper and tilefish fisheries. This rule informs the potential
participants of the procedures, schedule, and eligibility requirements
that NMFS would use in conducting the referendum. If the IFQ program,
as developed by the Gulf of Mexico Fishery Management Council
(Council), is approved through the referendum process, the Council may
choose to submit the IFQ program to the Secretary of Commerce
(Secretary) for review, approval, and implementation. The intended
effect of this proposed rule is to implement the referendum consistent
with the requirements of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act).
DATES: Written comments must be received on or before October 6, 2008.
ADDRESSES: You may submit comments on the proposed rule, identified by
``0648-AW85'', by any of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal e-Rulemaking Portal: http://
www.regulations.gov.
Fax: 727-824-5308; Attention: Susan Gerhart.
Mail: Susan Gerhart, Southeast Regional Office, NMFS, 263
13th Avenue South, St. Petersburg, FL 33701.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information.
NMFS will accept anonymous comments (enter N/A in the required
fields, if you wish to remain anonymous). You may submit attachments to
electronic comments. Attachments will be accepted in Microsoft Word,
Excel, WordPerfect, or Adobe PDF file formats only.
Copies of supporting documentation for this proposed rule, which
includes a regulatory impact review (RIR) and a Regulatory Flexibility
Act Analysis (RFAA), are available from NMFS at the address above.
FOR FURTHER INFORMATION CONTACT: Susan Gerhart, 727-824-5305.
SUPPLEMENTARY INFORMATION: The reef fish fishery in the exclusive
economic
[[Page 51618]]
zone (EEZ) of the Gulf is managed under the Fishery Management Plan for
the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was
prepared by the Council and is implemented under the authority of the
Magnuson-Stevens Act by regulations at 50 CFR part 622.
Background
The Council first considered an IFQ program for the Gulf grouper
fishery in 2004. At that time, the Council anticipated future action
was needed to further control effort in the Gulf grouper fishery. At
its October 2004 meeting, the Council requested NMFS publish a control
date to discourage speculative participation in the grouper fishery for
the purpose of developing a catch history. The Council chose October
15, 2004, as the control date. NMFS published the control date in the
Federal Register on November 16, 2004 (69 FR 67106) and requested
public comment.
The Council is currently developing Amendment 29 to the FMP, which
includes a multi-species IFQ program as the preferred management
approach to address overcapacity issues and to rationalize effort in
the Gulf commercial grouper and tilefish fisheries.
Section 303A of the Magnuson-Stevens Act specifies general
requirements for limited access privilege (LAP) programs implemented in
U.S. marine fisheries. A LAP is defined as a Federal limited access
permit that provides a person the exclusive privilege to harvest a
specific portion of a fishery's total allowable catch. This definition
includes exclusive harvesting privileges allocated to participants
under IFQ programs.
Section 303A(c)(6)(D) of the Magnuson-Stevens Act outlines specific
requirements for IFQ program proposals developed by the Council. The
Magnuson-Stevens Act requires such program proposals, as ultimately
developed, be approved through referenda before they may be submitted
for review and implementation by the Secretary. The Magnuson-Stevens
Act also mandates the Secretary publish referendum guidelines to
determine procedures for initiating, conducting, and deciding IFQ
program referenda, as well as voting eligibility requirements. These
procedures and guidelines are intended to ensure referenda conducted on
IFQ program proposals are fair and equitable and will provide the
Council the flexibility to define IFQ program referenda voting
eligibility requirements on a fishery-specific basis, yet within the
constraints of the Magnuson-Stevens Act and other applicable law. NMFS
published proposed guidelines in the Federal Register on April 23, 2008
(73 FR 21893) and requested public comment.
Purpose of the Proposed Rule and the Referendum
NMFS, in accordance with the provisions of section 303A(c)(6)(D) of
the Magnuson-Stevens Act, will conduct a referendum to determine
whether the plan amendment for an IFQ program for the Gulf commercial
grouper and tilefish fisheries, as developed by the Council, should be
submitted to the Secretary for review, and possible approval and
implementation. The determination will be based on a majority vote of
eligible voters. The primary purpose of this proposed rule is to notify
potential participants in the referendum, and members of the public, of
the procedures, schedule, and eligibility requirements that NMFS would
use in conducting the referendum. The procedures and eligibility
criteria used for the purposes of conducting the referendum are
independent of the procedures and eligibility requirements in the
proposed IFQ program for the Gulf commercial grouper and tilefish
fisheries contained in Amendment 29 to the FMP. The proposed IFQ
program is being developed by the Council through the normal plan
amendment and rulemaking processes and involves extensive opportunities
for public review and comment during Council meetings, public hearings,
and public comment on any proposed rule.
Referendum Process
How Would the Referendum Be Initiated?
According to the guidelines, a Council must have held public
hearings on an IFQ program proposal, considered public comment on the
proposal, and selected preferred alternatives for the proposed IFQ
program, before submitting an initiation request letter to NMFS. The
initiation request letter would allow NMFS to initiate the referendum
process. As the above requirements have been fulfilled, the Council
submitted an initiation request letter to NMFS on August 18, 2008.
The referendum initiation request letter must include recommended
eligibility criteria for voting in the referendum, rationale for the
recommendation, any alternatives to the recommendation, and supporting
analyses for the recommendation. For a fishery managed with multi-
species permits, the initiation request letter must also include
recommended criteria for defining those permit holders who have
substantially fished the species to be included in the referendum
process.
If the referendum fails to approve the proposed IFQ program, any
request from the Council for a new referendum in the same fishery must
include an explanation of the substantive changes to the proposed IFQ
program or the changes of circumstances in the fishery that would
warrant initiation of an additional referendum.
Who Would Be Eligible to Vote in the Referendum?
Section 303A(c)(6)(D) of the Magnuson-Stevens Act establishes
criteria regarding eligibility of persons who may vote in the
referendum. For referenda conducted in New England fisheries, section
303A(c)(6)(D)(v) of the Magnuson-Stevens Act includes using income-
dependent criteria when determining voter eligibility, i.e. crew
members who derive a significant percentage of their total income from
the fishery under the proposed IFQ program would be eligible to vote in
the referendum. However, for Gulf fisheries managed with multi-species
permits, such as the Gulf commercial grouper and tilefish fisheries,
the Magnuson-Stevens Act states that those participants who have
substantially fished the species considered for the IFQ program, would
be eligible to vote in the referendum. The Council and NMFS interpret
``substantially fished'' to represent substantial contribution to the
overall fishery production in total harvest. Therefore, the Council has
established voter eligibility criteria in terms of annual grouper and
tilefish landings thresholds. The decision to identify participants in
terms of average annual harvest does not consider dependency on the
fishery. A fishery participant may not meet the average annual grouper
and tilefish landings threshold, but still be dependent on the fishery
as a source of income.
In the Council's referendum initiation request letter, the
definition of ``substantially fished'' states, ``Only commercial reef
fish permit holders, with active or renewable permits (within one year
of the grace period immediately following expiration), who have
combined average annual grouper and tilefish landings from logbooks
during the qualifying years of at least 8,000 pounds (per permit) be
considered as having substantially fished.'' The qualifying years
selected by the Council are 1999 through 2004, with an allowance for
dropping one year. Therefore, NMFS will use landings data from logbooks
submitted to and received by the Science and Research
[[Page 51619]]
Director, Southeast Fisheries Science Center by December 31, 2006, for
the years 1999 through 2004, with the allowance for dropping one year,
as the sole basis to determine those permit holders that meet the
Council's eligibility criterion and will be eligible to vote in the
referendum.
Would Votes Be Weighted?
The Council has proposed assigning one vote for each permit
associated with qualifying landings from the years 1999 through 2004,
with no additional vote weighting based on catch history.
How Would Votes Be Conducted?
On or about December 1, 2008, NMFS would mail eligible voters a
ballot for each permit associated with qualifying landings from the
years 1999 through 2004. NMFS would mail the ballots and associated
explanatory information, via certified mail return receipt requested,
to the address of record indicated in NMFS' permit database for
eligible permit holders. The completed ballot must be mailed to Susan
Gerhart, Southeast Regional Office, NMFS, 263 13th Ave South, St.
Petersburg, FL 33701. A referendum ballot must be received at that
address by 4:30 p.m., eastern time, no later than 30 days after the
postmark date on the envelope containing the ballots provided by NMFS;
ballots received after that deadline would not be considered in
determining the outcome of the referendum. Although it would not be
required, voters may want to consider submitting their ballots by
registered mail.
How Would the Outcome of the Referendum Be Determined?
Vote counting would be conducted by NMFS. Approval or disapproval
of the referendum would be determined by a majority (i.e., a number
greater than half of a total) of the votes cast. NMFS would prepare a
media release announcing the results of the referendum and would
distribute the release to all Gulf reef fish permitees, including
dealers, and other interested parties within 60 days of the deadline
for receiving the ballots from eligible voters. The results would also
be posted on NMFS' Southeast Regional Office's website at http://
sero.nmfs.noaa.gov.
What Will Happen After the Referendum is Conducted?
NMFS would present the results of the referendum at the April 13-
17, 2009, Council meeting. If the referendum fails, the Council cannot
proceed with submission of Amendment 29 and regulations to implement an
IFQ program for the Gulf commercial grouper and tilefish fisheries. If
the referendum is approved, the Council would be authorized, if it so
decides, to submit Amendment 29 and regulations to NMFS for review and
possible approval and implementation of an IFQ program for the Gulf
commercial grouper and tilefish fisheries. The proposed IFQ program was
developed through the normal Council process that involved extensive
opportunities for industry and public review and input at various
Council meetings. The public will have additional opportunities to
comment during public comment periods on the plan amendment and the
proposed regulations.
Will the Referendum Be Conducted in a Fair and Equitable Manner?
The Magnuson-Stevens Act requires the Secretary to conduct
referenda for potential IFQ programs in a fair and equitable manner.
NMFS' referendum guidelines outline criteria that NMFS must consider
when reviewing the Council's referendum initiation request letter and
supporting analyses to ensure the referenda will be conducted in a fair
and equitable manner and are consistent with the national standards and
other provisions of the Magnuson-Stevens Act, and other applicable law.
NMFS has reviewed these documents from the Council and has concluded
that the proposed referendum criteria are consistent with the
guidelines. NMFS has preliminarily concluded that:
1. The Council's referendum criteria are rationally connected to
and further the objectives of the proposed IFQ program. The Council's
definition of ``substantially fished'' includes those permit holders
with both past and present participation in the grouper and tilefish
fisheries and allows those who account for the majority of grouper and
tilefish landings to vote in the referendum. The definition includes
use of catch histories from a qualifying time period that would also be
used for initial apportionment of IFQ shares in the proposed IFQ
program.
2. Referendum voting eligibility requirements are designed to
prevent any one person or single entity from obtaining an excessive
share of the voting privileges. The Council has proposed assigning one
vote for each permit associated with qualifying landings from the years
1999 through 2004, instead of weighting the votes.
3. The voter eligibility criteria enable validating a participant's
eligibility. Landings data from logbooks submitted to NMFS and NMFS
permit history records will be used to validate participants'
eligibility to vote in the referendum.
4. The time period and format proposed to conduct the referendum is
consistent with the referendum guidelines and provides for a fair and
equitable process. NMFS would mail referendum ballots to eligible
voters as soon as practicable after the final referendum rule is
published. Eligible voters would have to submit their ballots to be
received by NMFS no later than 30 days from the postmark date on the
envelope containing the ballots provided by NMFS. NMFS would tally the
votes and post the results within 60 days of receiving the ballots.
Summary Information About the Potential IFQ Program
The current management of Gulf commercial grouper and tilefish
fisheries is based on a traditional command and control approach. This
management approach has resulted in overcapitalization of the
commercial grouper and tilefish fisheries which has caused increased
derby fishing conditions and in some years has led to closures of these
fisheries prior to the end of the fishing year. The purpose of
implementing an IFQ program for the commercial grouper and tilefish
fisheries is to rationalize effort and reduce overcapacity in the
fleet. Amendment 29 to the FMP includes several management programs
that would be capable of achieving these management goals, an IFQ
program being the Council's preferred approach. The actions included in
Amendment 29 include: Initial eligibility in the IFQ program, initial
apportionment of IFQ shares, IFQ share categories, multi-use allocation
and trip allowances, transfer eligibility requirements, IFQ share
ownership caps, IFQ allocation ownership caps, adjustment to the
commercial quota, establishment and structure of an appeals process, a
``use it or lose it'' policy for IFQ shares, a cost recovery plan, and
approval of landing sites. The Council has selected its preferred
alternatives for each of these actions through the normal Council
process. If the referendum is approved, the Council, if it so decides,
may continue with the submission of Amendment 29 for review, approval,
and implementation.
Classification
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this
[[Page 51620]]
rule would not have a significant economic impact on a substantial
number of small entities. The basis for this certification follows:
The Magnuson-Stevens Act provides the statutory basis for the
proposed rule. The proposed rule would implement a referendum on a
potential IFQ program for the Gulf commercial grouper and tilefish
fisheries, consistent with the requirements of the Magnuson-Stevens
Act. The primary purpose of this proposed rule is to notify
potential participants in the referendum, and members of the public,
of the procedures, schedule, and eligibility requirements that NMFS
would use in conducting the referendum.
Participation in the Gulf commercial grouper and tilefish
fisheries requires a Federal reef fish permit. There are currently
1,080 Federal reef fish permits that are either active (non-expired)
or expired but renewable. Within this fleet, over the 2005-2006
fishing years, 895 vessels recorded landings of reef fish species,
valued at a total of approximately $46.3 million (2007 dollars), or
an average of approximately $52,000 per vessel. Some fleet activity
occurs in the reef fish fishery, such that some entities own
multiple permits and vessels. The extent of such activity is
unknown, however, and, for the purpose of this analysis, all permits
or vessels are assumed to be independent entities.
One class of small business entities would be directly affected
by the rule: Commercial fishing operations. The Small Business
Administration defines a small business that engages in commercial
fishing as a firm that is independently owned and operated, is not
dominant in its field of operation (including its affiliates), and
has combined annual receipts not in excess of $4.0 million (NAICS
code 114111, finfish fishing) for all its affiliated operations
worldwide. The proposed referendum qualifying criteria would allow
333 of the 1,080 entities with Federal reef fish permits to
participate in the referendum. Economic profiles of these entities
are not available. However, assuming all the reef fish revenues
discussed above were attributable to just the 333 qualifiers, which
is known with certainty to not be true, the average annual revenue
from reef fish sales, based on 2005-2006 harvest data, would be less
than $140,000 per qualifier. Thus, the average annual revenue per
qualifying entity is determined to be less than $140,000 and all
commercial entities that would qualify for participation in the
referendum are determined, for the purpose of this proposed rule, to
be small entities.
The proposed rule defines the procedures, schedule, and
eligibility requirements that NMFS would use in conducting the
referendum. There are no implementing regulations associated with
the proposed rule. Because there are no implementing regulations,
there would be no direct effects on current fishery participation,
effort, harvests, or other use of the grouper and tilefish
resources. All current entities can continue to participate in the
fishery in the manner in which they currently operate. Therefore,
all current harvests, costs, and profits would remain unchanged. Any
effects, adverse or otherwise, on small entities that participate in
the fishery would only occur if in the future an IFQ program is
implemented as a result of subsequent rulemaking. The final expected
impacts of the IFQ program are unknown since final approval of the
specific program has not occurred. Estimates of variable costs
savings attributable to the implementation of an IFQ system in the
Gulf commercial grouper and tilefish fisheries are between $2.1 and
$2.9 million per year, as well as unquantified reductions in fixed
costs and increased ex-vessel prices. Final estimates of expected
impacts will be identified should an IFQ program be proposed. Since
the proposed rule would not directly affect fishery participation or
harvest in any way, the rule would not reduce business profit for
any fishery participants or related businesses. Profits are,
therefore, not expected to be significantly reduced by the proposed
rule. On this basis, it is determined that the proposed rule would
not have a significant economic impact on a substantial number of
small entities.
Accordingly, an initial regulatory flexibility analysis was not
required or prepared. Copies of the RIR and RFAA are available (see
ADDRESSES).
IFQ program referenda conducted under section 303A(c)(6)(D)(iv) of
the Magnuson-Stevens Act are exempt from the Paperwork Reduction Act.
Authority: 16 U.S.C. 1801 et seq.
Dated: August 29, 2008.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. E8-20543 Filed 9-3-08; 8:45 am]
BILLING CODE 3510-22-S