[Federal Register Volume 76, Number 35 (Tuesday, February 22, 2011)]
[Proposed Rules]
[Pages 9735-9739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3735]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 110207101-1097-01]
RIN 0648-BA54
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Reef Fish Fishery of the Gulf of Mexico; Red Snapper Management
Measures
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 that would implement a
regulatory amendment to the Fishery Management Plan for the Reef Fish
Resources of the Gulf of Mexico (FMP) prepared by the Gulf of Mexico
Fishery Management Council (Council). This proposed rule would increase
the commercial and recreational quotas for red snapper in the Gulf of
Mexico (Gulf) reef fish fishery for the 2011 fishing year, provided
that NMFS determines the total allowable catch (TAC) was not exceeded
in the 2010 fishing year. This rule also proposes minor revisions to
codified text, including revisions to the definition of ``actual ex-
vessel value,'' extending the maintenance window for the Gulf
individual fishing quota (IFQ) programs, and removing obsolete codified
text for Gulf grouper. The intended effect of this proposed rule is to
help achieve optimum yield (OY) for Gulf red snapper without increasing
the risk of the red snapper resource experiencing overfishing, allow
for better functioning and enforcement of the Gulf IFQ programs, and to
implement a technical correction to the regulations.
DATES: Written comments must be received on or before March 24, 2011.
ADDRESSES: You may submit comments on the proposed rule, identified by
0648-BA54, by any of the following methods:
Electronic submissions: Submit electronic comments via the
Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Mail: Rich Malinowski, 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.
To submit comments through the Federal e-rulemaking portal http://www.regulations.gov, enter ``NOAA-NMFS-2011-0018'' in the keyword
search, then check the box labeled ``Select to find documents accepting
comments or submissions,'' then select ``Send a comment or
submission.'' NMFS will accept anonymous comments (enter N/A in the
required field if you wish to remain anonymous). You may submit
attachments to electronic comments in Microsoft Word, Excel,
WordPerfect, or Adobe PDF file formats only.
Comments received through means not specified in this proposed rule
will not be considered.
Copies of the regulatory amendment, which includes an environmental
assessment and a regulatory impact review, may be obtained from the
Gulf of Mexico Fishery Management Council, 2203 North Lois Avenue,
Suite 1100, Tampa, FL 33607; telephone 813-348-1630; fax 813-348-1711;
e-mail [email protected]; or may be downloaded from the
Council's Web site at http://www.gulfcouncil.org/.
FOR FURTHER INFORMATION CONTACT: Rich Malinowski, 727-824-5308.
SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico
is
[[Page 9736]]
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
The Southeast Data, Assessment, and Review (SEDAR) update
assessment for Gulf red snapper was conducted in August 2009 (SEDAR 9),
with the objective of updating the SEDAR 7 benchmark assessment
conducted in 2005 (SEDAR 7). To accomplish this goal, the 2009 SEDAR
assessment updated, reviewed, and incorporated into the model all data
included in SEDAR 7. The 2009 SEDAR update assessment projected that
overfishing had ended for the red snapper stock, and therefore, TAC for
this species may be increased. The stock, however, is still overfished
and under a rebuilding plan.
The rebuilding plan for Gulf red snapper was outlined in Amendment
22 to the FMP, and implemented through regulations in 2005. The final
rule implementing Amendment 22 to the FMP became effective on July 5,
2005 (70 FR 32266, June 2, 2005). Actions taken through Joint Amendment
27 to the FMP and Amendment 14 to the FMP for the Shrimp Fishery of the
Gulf of Mexico (implemented February 28, 2008, 73 FR 5117, published
January 29, 2008) revised the red snapper rebuilding strategy with the
intent to end overfishing by 2009 or 2010, and to rebuild red snapper
by 2032 to the biomass levels that can support harvest of the maximum
sustainable yield (MSY). The revised rebuilding plan outlined that
after 2010, TAC would be increased consistent with a fishing mortality
rate that produces MSY.
In response to the rebuilding plan, the Council's Scientific and
Statistical Committee (SSC) recommended 3 years of increasing
acceptable biological catch (ABC) levels from 2010 through 2012. The
ABC level for red snapper set by the SSC is 25-percent below the
overfishing limit, which is also the rebuilding yield, to account for
scientific uncertainty in the numbers. This buffer further increases
the likelihood that red snapper will be rebuilt by 2032. In 2010,
however, the Council and NMFS raised the TAC for 2010 only.
In February 2010, the Council submitted a regulatory amendment to
set the red snapper TAC for 2010 at 6.945 million lb (3.150 million
kg), which was the ABC recommended by the SSC. The Council chose not to
set TACs beyond 2010 because of scientific uncertainty about future
levels of red snapper stock, and concern regarding the likelihood of
the recreational sector to overrun the quota. NMFS published a final
rule on May 3, 2010 (75 FR 23186), implementing the February 2010
regulatory amendment. That rule set the commercial quota for Gulf red
snapper at 3.542 million lb (1.607 million kg), and the recreational
quota at 3.403 million lb (1.544 million kg). The final rule also
included a closure date for the 2010 recreational sector based on
estimates of when the recreational quota was projected to be caught.
NMFS projected that the recreational sector quota for red snapper would
be met after a 53-day fishing season, and on July 24, 2010, NMFS closed
the recreational sector for red snapper. The Magnuson-Stevens Act
requires NMFS to close the recreational red snapper sector in Federal
waters when the quota is met or projected to be met.
Although NMFS had already projected a recreational season for red
snapper for the 2010 fishing year, an unforeseen event occurred in
April 2010 that contributed to the recreational quota not being met by
the closure date. On April 20, 2010, the Deepwater Horizon MC252 deep-
sea drilling rig exploded and sank off the coast of Louisiana. Because
of the resulting oil spill, approximately one-third of the Gulf was
closed to fishing for much of the summer. The direct loss of fishing
opportunities due to the closure, plus the reduction in tourism
throughout the Gulf coast, resulted in a much lower catch than had been
projected. In a report dated August 13, 2009 (http://sero.nmfs.noaa.gov/sf/pdfs/2010_Recreational_Red_Snapper_Quota_Closure_Analysis_Fall_Reopening.pdf), NMFS estimated 2.3 million lb
(1.1 million kg) of the 3.4 million lb (1.5 million kg) recreational
quota remained unharvested. Consequently, on October 1, 2010, the
Council and NMFS reopened the recreational red snapper season for 24
more fishing days (eight consecutive weekends--Fridays, Saturdays, and
Sundays--through November 21, 2010). The reopening of the recreational
red snapper season was intended to provide fishermen the opportunity to
harvest the recreational red snapper quota and achieve the OY for the
fishery.
At present, there is no evidence that the oil spill has adversely
impacted the adult stock of red snapper, and the fishing mortality rate
of red snapper remains below the overfishing threshold. The next SEDAR
benchmark stock assessment currently scheduled for Gulf red snapper is
in 2014.
Management Measures Contained in This Proposed Rule
This Gulf red snapper regulatory amendment would set the TAC for
2011 and subsequent fishing years at 7.185 million lb (3.259 million
kg), provided that the 2010 TAC has not been exceeded. Based on the
current commercial and recreational allocations (51-percent commercial
and 49-percent recreational), the TAC would be implemented through this
proposed rule by setting the Gulf red snapper commercial quota at 3.664
million lb (1.662 million kg), and the recreational quota at 3.521
million lb (1.544 million kg). However, if NMFS determines the combined
commercial and recreational quota from 2010 was exceeded, NMFS will
maintain the quota from 2010 in the 2011 fishing year. If this is the
case, the Assistant Administrator will file a notification with the
Office of the Federal Register to announce the commercial and
recreational quotas will remain at the quotas of the 2010 fishing year.
The Magnuson-Stevens Act requires NMFS to close the recreational
red snapper sector in Federal waters when the quota is met or projected
to be met. NMFS will set the recreational season length for 2011 after
finalized 2010 recreational landings data are available and before the
season opens on June 1, 2011. NMFS may announce the recreational red
snapper season in the final rule associated with this action.
The red snapper management measures contained in this proposed rule
would achieve the goal of National Standard 1 of the Magnuson-Stevens
Act, which states that conservation and management measures shall
prevent overfishing while achieving, on a continuing basis, the optimum
yield for the fishery.
Additional Measures Contained in This Proposed Rule
IFQ Program Changes
In Sec. 622.2 of the current regulations, ``actual ex-vessel
value'' is defined as the total monetary sale amount a fisherman
receives from IFQ landings from a registered IFQ dealer. Many Gulf reef
fish IFQ dealers, however, are reporting very low ex-vessel prices for
IFQ fish because trip expenses and transferred (leased) allocation are
deducted from the price paid by the dealer. Through this rulemaking,
NMFS proposes to revise the definition of ``actual ex-vessel value'' in
Sec. 622.2 of the regulations, so that actual ex-vessel value
represents the price paid per pound of fish before any deductions are
made for transferred (leased) allocation and goods and
[[Page 9737]]
services (e.g., bait, ice, fuel, repairs, machinery replacement, etc.).
This revision will allow NMFS to more accurately analyze the total
value of the Gulf red snapper and grouper and tilefish fisheries, and
will more appropriately align the definition with the original intent
of the IFQ programs.
Sections 622.16 and 622.20 of the current regulations restrict IFQ
transactions during a 12-hour maintenance window at year-end. The
regulations state that all transactions must be completed by 6 p.m.
eastern time December 31 and may resume at 6 a.m. eastern time January
1 of the next year. This maintenance window is necessary to provide
NMFS time to reconcile IFQ accounts, adjust allocations for the
upcoming fishing year if the commercial quotas for IFQ managed species
have changed, and to update shares and allocations for the upcoming
fishing year. This maintenance window, however, is too short to
complete all of the necessary changes and updates to the IFQ program
prior to the start of the next fishing year. This rulemaking proposes
to extend the maintenance window an additional 8 hours to allow for
more time to conduct end-of-year maintenance. It also clarifies how
fishermen can submit an IFQ landing notification during the maintenance
window. This revision is not expected to have any effects on fishermen
or dealers. During the first 4 years of the Red Snapper IFQ program and
first year of the Grouper-Tilefish IFQ program, no landing transactions
were completed between 6 a.m. and 2 p.m. on January 1. Additionally,
IFQ participants may still submit an advanced notice of landing during
the maintenance window.
Removing Obsolete Regulations
In Amendment 30B to the FMP, NMFS removed the February 15-March 15
seasonal closure of the commercial sector of the Gulf reef fish fishery
for gag, red grouper, and black grouper through a final rule that
published April 16, 2009 (74 FR 17603). When the February 15-March 15
closure was effective, the sale and purchase of gag, red grouper, and
black grouper was prohibited, as specified in Sec. 622.45(c)(4).
However, NMFS inadvertently did not remove Sec. 622.45(c)(4) in the
final rule for Amendment 30B. This rulemaking proposes to remove this
obsolete paragraph.
These additional measures are unrelated to the actions contained in
the red snapper regulatory amendment.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this proposed rule is
consistent with the regulatory amendment, other provisions of the
Magnuson-Stevens Act, and other applicable law, subject to further
consideration after public comment.
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 factual basis for this determination is
as follows:
The preamble of this proposed rule provides a statement of the need
for and objectives of this rule, and it is not repeated here. The
Magnuson-Stevens Act provides the statutory basis for this proposed
rule.
This proposed rule, if implemented, would be expected to directly
affect commercial and for-hire fishing vessels that harvest red snapper
in the Gulf of Mexico and federally permitted dealers who purchase IFQ
species. Under the Regulatory Flexibility Act (RFA), an agency must
complete an Initial Regulatory Flexibility Analysis (IRFA) with a
proposed regulation if the proposed regulation is expected to have a
significant economic impact on a substantial number of small entities.
The Small Business Administration administers those provisions of the
RFA, and has established size criteria for all major industry sectors
in the U.S. including fish harvesters. A business involved in fish
harvesting is classified as a small business if it 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. For for-hire vessels, the other
qualifiers apply and the revenues threshold is $7.0 million (NAICS code
713990, recreational industries).
Based on logbook records, for the period 2007-2008, an average of
312 commercial vessels per year recorded red snapper landings in the
Gulf. The total average annual ex-vessel revenues from all logbook-
recorded harvests from all species for these vessels during this period
was approximately $28.943 million (2008 dollars), of which
approximately $9.435 million came from red snapper. The average annual
total revenue per vessel for these commercial vessels during this
period was approximately $93,000 (2008 dollars).
Some fleet activity occurs in the Gulf commercial reef fish
fishery. Based on permit data, the maximum number of permits reported
to be owned by the same entity is six, though additional permits may be
linked through other affiliations which cannot be identified with
current data. Using the average revenue per vessel provided above, the
average annual estimated maximum combined revenues for this entity
would be approximately $558,000 (2008 dollars).
The for-hire fleet in the Gulf is comprised of charter vessels,
which charge a fee on a vessel basis, and headboats, which charge a fee
on an individual angler (head) basis. A Gulf reef fish for-hire permit
is required to harvest red snapper in the Gulf. On December 17, 2010,
there were 1,355 valid or renewable Gulf reef fish for-hire permits. A
valid permit is a non-expired permit. Expired permits may not be
actively fished, but are renewable for up to one year after expiration.
Although the for-hire permit does not distinguish between headboats and
charter vessels, an estimated 79 headboats and 1,276 charter vessels
operate in the Gulf. It cannot be determined with available data how
many of these for-hire vessels harvest red snapper, so all permitted
vessels are assumed to comprise the universe of potentially affected
for-hire vessels. The average charter vessel is estimated to earn
approximately $88,000 (2008 dollars) in annual revenues, while the
average headboat is estimated to earn approximately $461,000 (2008
dollars).
For seafood dealers, the SBA uses an employee threshold rather than
a receipts threshold, or 100 or fewer persons on a full-time, part-
time, temporary, or other basis, at all its affiliated operations
worldwide. On January 19, 2011, 190 dealers possessed a Federal permit
to purchase reef fish species. All dealers with a Federal reef fish
permit are eligible to obtain an account required to purchase IFQ
species, however, on January 19, 2011, only 169 dealers had an IFQ
account. No current information is available on the employment profile
of these dealers.
Based on the average revenue estimates provided above, all
commercial and for-hire vessels expected to be directly affected by
this proposed rule are determined for the purpose of this analysis to
be small business entities. Although no current information is
available on the
[[Page 9738]]
employment profile of the dealers expected to be directly affected by
this rule, if enacted, all dealers are determined for the purpose of
this analysis to be small business entities.
This proposed rule would not establish any new reporting, record-
keeping or other compliance requirements. No duplicative, overlapping,
or conflicting Federal rules have been identified. This proposed rule,
if implemented, is expected to result in an increase in commercial red
snapper harvests and a longer red snapper recreational fishing season
relative to the season that would occur without a TAC increase (the
status quo). The increase in commercial red snapper harvests would be
expected to increase commercial annual ex-vessel revenues to the whole
commercial fleet by approximately $400,000, and a longer recreational
red snapper fishing season would be expected to increase annual net
operating revenues to the whole for-hire fleet by up to $225,000.
Therefore, all of the expected direct economic impacts on small
entities of this proposed rule, if implemented, are positive. No
reduction in the revenues or profits of affected entities would be
expected.
The proposed revision to the definition of ``actual ex-vessel
value'' to mean price paid per pound of fish before any deductions are
made for transferred (leased) allocation and goods and services, would
be expected to affect fishermen and dealers who report ex-vessel prices
net of cost deductions. Because cost recovery fees are based on the ex-
vessel revenues, the proposed revision to the definition of ex-vessel
value would be expected to result in an increase in cost recovery fees,
potentially reducing revenues to both fishermen and dealers. While
dealers would be expected to pass a portion of any increased cost
recovery fees onto fishermen, thereby reducing fishing revenues, the
competitive market may require dealers to absorb some portion of these
increased fees.
The number of affected entities and the magnitude of effect cannot
be determined with certainty at this time, but would be expected to
vary by IFQ species and assumptions on the appropriate price threshold
(i.e., the baseline price for comparison). For example, based on 2010
red snapper IFQ data, if reported ex-vessel prices below the average
($3.48/lb), median ($4.00/lb), and mode ($4.25/lb) prices are adjusted
to the respective threshold, the proposed revision would result in an
increase in cost recovery fees, and total reduced revenues to all
dealers and fishermen combined, of approximately $57,000, $76,000, and
$88,000 under the respective thresholds. In 2010, assuming a threshold
price of $3.00/lb, 29 dealers and 128 vessels recorded transactions
with prices less than $3.00/lb. Comparable results for other IFQ
species are approximately $13,000 to $20,000 and 9 dealers and 9
vessels ($2.00/lb threshold price; the average reported price was
$3.14/lb) for red grouper; approximately $1,000 to $4,000 and 19
dealers and 42 vessels ($3.00/lb threshold price; the average reported
price was $4.22/lb) for gag; approximately $6,000 to $3,000 and 11
dealers and 32 vessels ($3.00/lb threshold price; the average reported
price was $3.36/lb) for deepwater grouper (the range in effects
decreases when comparing from average price to median price to mode
price for this group because the prices decline in that order, unlike
the case for most other species); approximately $1,000 to $3,000 and 29
dealers and 55 vessels ($3.00/lb threshold price; the average reported
price was $4.08/lb) for other shallow water grouper; and approximately
$1,000 to a few hundred dollars and 16 dealers and 44 vessels ($1.00/lb
threshold price; the average reported price was $1.83/lb) for tilefish.
Overlap in affected dealers and vessels would be expected, but has not
been tabulated.
Thus, the proposed revision to the definition of ``actual ex-vessel
value,'' would be expected to reduce revenues to fishermen and dealers.
However, the proposed revision is consistent with the intent of the
original requirement to report ex-vessel values and remit cost recovery
fees based on said value. The proposed revision would simply result in
fishermen and dealers reporting the values and remitting the cost
recovery fees they have been expected to provide since the
implementation of the IFQ program. Therefore, none of the expected
effects constitute new direct adverse economic effects on the affected
entities.
The proposed extension of the maintenance window would not be
expected to have any adverse effects on fishermen or dealers because no
transactions have historically been completed to date during the
affected period. Finally, the proposed removal of obsolete text in the
regulations is an administrative action and would not affect any small
entities.
Because this proposed rule, if implemented, is not expected to have
any direct adverse economic impact on any small entities, an initial
regulatory flexibility analysis is not required and none has been
prepared.
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
Dated: February 14, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 622 is
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 Sec. 622.2, the definition of ``actual ex-vessel value'' is
revised to read as follows:
Sec. 622.2 Definitions and acronyms.
* * * * *
Actual ex-vessel value means the total monetary sale amount a
fisherman receives per pound of fish for IFQ landings from a registered
IFQ dealer before any deductions are made for transferred (leased)
allocation and goods and services (e.g. bait, ice, fuel, repairs,
machinery replacement, etc.).
* * * * *
3. In Sec. 622.16, paragraph (c)(5) is revised to read as follows:
Sec. 622.16 Gulf red snapper individual fishing quota (IFQ) program.
* * * * *
(c) * * *
(5) Restricted transactions during the 20-hour online maintenance
window. All electronic IFQ transactions must be completed by December
31 at 6 p.m. eastern time each year. Electronic IFQ functions will
resume again on January 1 at 2 p.m. eastern time the following fishing
year. The remaining 6 hours prior to the end of the fishing year, and
the 14 hours at the beginning of the next fishing year, are necessary
to provide NMFS time to reconcile IFQ accounts, adjust allocations for
the upcoming year if the commercial quotas for Gulf red snapper have
changed, and update shares and allocations for the upcoming fishing
year. No electronic IFQ transactions will be available during these 20
hours. An advance notice of landing may still be submitted during the
20-hour maintenance window by using the vessel's VMS unit or calling
IFQ Customer Service at 1-866-425-7627.
* * * * *
[[Page 9739]]
4. In Sec. 622.20, paragraph (c)(5) is revised to read as follows:
Sec. 622.20 Individual fishing quota (IFQ) program for Gulf groupers
and tilefishes.
* * * * *
(c) * * *
(5) Restricted transactions during the 20-hour online maintenance
window. All electronic IFQ transactions must be completed by December
31 at 6 p.m. eastern time each year. Electronic IFQ functions will
resume again on January 1 at 2 p.m. eastern time the following fishing
year. The remaining 6 hours prior to the end of the fishing year, and
the 14 hours at the beginning of the next fishing year, are necessary
to provide NMFS time to reconcile IFQ accounts, adjust allocations for
the upcoming year if the commercial quotas or catch allowances for Gulf
groupers and tilefishes have changed, and update shares and allocations
for the upcoming fishing year. No electronic IFQ transactions will be
available during these 20 hours. An advance notice of landing may still
be submitted during the 20-hour maintenance window by using the
vessel's VMS unit or calling IFQ Customer Service at 1-866-425-7627.
* * * * *
5. In Sec. 622.42, paragraphs (a)(1)(i) and (a)(2)(i) are revised
to read as follows:
Sec. 622.42 Quotas.
* * * * *
(a) * * *
(1) * * *
(i) Red snapper--(A) For fishing year 2010--3.542 million lb (1.607
million kg), round weight.
(B) For fishing year 2011--3.664 million lb (1.662 million kg),
round weight, provided that the combined commercial and recreational
quota from the prior fishing year is not exceeded. If landings, as
estimated by the SRD, indicate the combined quota is exceeded, then the
AA will file a notification with the Office of the Federal Register to
maintain the commercial quota at the quota of the prior fishing year.
* * * * *
(2) * * *
(i) Recreational quota for red snapper--(A) The 2010 recreational
quota for red snapper is 3.403 million lb (1.544 million kg), round
weight.
(B) The 2011 recreational quota for red snapper is 3.521 million lb
(1.597 million kg), round weight, provided that the combined commercial
and recreational quota from the prior fishing year is not exceeded. If
landings, as estimated by the SRD, indicate the combined quota is
exceeded, then the AA will file a notification with the Office of the
Federal Register to maintain the recreational quota at the quota of the
prior fishing year.
* * * * *
Sec. 622.45 [Amended]
6. In Sec. 622.45, paragraph (c)(4) is removed.
[FR Doc. 2011-3735 Filed 2-18-11; 8:45 am]
BILLING CODE 3510-22-P