[Federal Register Volume 70, Number 105 (Thursday, June 2, 2005)]
[Rules and Regulations]
[Pages 32266-32272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10986]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 040804277-5143-02; I.D. 072604A]
RIN 0648-AP02


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Red Snapper Rebuilding Plan

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement Amendment 22 to the 
Fishery Management Plan (FMP) for the Reef Fish Resources of the Gulf 
of Mexico (Amendment 22) prepared by the Gulf of Mexico Fishery 
Management Council (Council). This final rule provides the regulatory 
authority to implement a mandatory observer program for selected 
commercial and for-hire (charter vessel/headboat) vessels in the Gulf 
of Mexico reef fish fishery. In addition, consistent with the 
requirements of the Magnuson-Stevens Act, Amendment 22 establishes a 
stock rebuilding plan, biological reference points, and stock status 
determination criteria for red snapper in the Gulf of Mexico. The 
intended effect of this final rule is to contribute to ending 
overfishing and rebuilding the red snapper resource. Finally, NMFS 
informs the public of the approval by the Office of Management and 
Budget (OMB) of the collection-of-information requirements contained in 
this final rule and publishes the OMB control numbers for those 
collections.

DATES: This final rule is effective July 5, 2005.

ADDRESSES: Copies of the Regulatory Impact Review (RIR), Final 
Regulatory Flexibility Analyses (FRFA), Final Supplemental 
Environmental Impact Statement (FSEIS), and Record of Decision (ROD) 
may be obtained from Peter Hood, Southeast Regional Office, NMFS, 9721 
Executive Center Drive N., St. Petersburg, FL 33702; telephone 727-570-
5305; fax 727-570-5583; e-mail [email protected].
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule must be submitted to Robert Sadler, Southeast Region, NMFS, at the 
above address, and by e-mail to [email protected], or 202-395-
7285 (fax).

FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone: 727-570-5305, 
fax: 727-570-5583, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The reef fish fishery in the exclusive 
economic zone (EEZ) of the Gulf of Mexico is managed under the FMP. The 
FMP was prepared by the Council and is implemented under the authority 
of the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act) by regulations at 50 CFR part 622.
    On August 3, 2004, NMFS published a notice of availability of 
Amendment 22 (69 FR 46518) and requested public comment on Amendment 
22. On November 23, 2004, NMFS published the proposed rule to implement 
Amendment 22 (69 FR 68119) and requested public comment on the proposed 
rule. NMFS approved Amendment 22 on October 27, 2004. The rationale for 
the measures in Amendment 22 is provided in the amendment and in the 
preamble to the proposed rule and is not repeated here.

Comments and Responses

    This section presents a summary of comments received on Amendment 
22 and the associated proposed rule along with NMFS' responses. In 
addition, please see the section entitled Discussion of Potential 
Future Action which follows this section and addresses new preliminary 
information received after the approval of Amendment 22; the types of 
additional measures that may be required; and the procedures, 
consistent with the red snapper stock rebuilding plan, for 
consideration and future implementation of such measures as 
appropriate.
    Comment 1: Placing observers on for-hire vessels could be a problem 
if carrying an observer would cause the number of persons on the vessel 
to exceed the passenger limits defined by the applicable United States 
Coast Guard (USCG) issued license for the vessel and operator. Unless 
one paying customer is denied a trip to make room for the observer, the 
vessel could be out of compliance with USCG regulations. This could 
cause economic harm.
    Response: Amendment 22 directs NMFS to develop and manage an 
observer program for the commercial and for-hire reef fish fishery. 
When selecting vessels to carry observers, NMFS will consider 
appropriate factors, such as the suitability of vessels for

[[Page 32267]]

carrying observers, and adequately sampling the universe of vessels 
representative of all statistical sub-zones in the Gulf.
    The cost of carrying an observer should be minimal for fishermen. 
Based on discussions with USCG personnel, vessel owners would not need 
to deny a customer a trip to make room for an observer unless carrying 
an observer would cause the total number of persons onboard the vessel 
to exceed the limit of persons the USCG has determined for that vessel. 
While the cost to NMFS of the proposed observer program is high (up to 
5.98 million dollars per year based on a per day cost of 1,200 dollars 
for an observer), the cost to vessel owners or operators is relatively 
low and would only require them to provide the costs of food and 
accommodations while on a selected fishing trip. Additionally, the 
probability of being selected for a trip would likely be at or less 
than one percent for charter vessels and at or less than four percent 
of headboat trips.
    Of course failure or refusal to carry observers in accordance with 
this process could lead to a vessel's reef fish permit not being 
renewed. Thus, non-compliance could result in an additional economic 
impact on the industry.
    Comment 2: One commenter expressed concern that extra trips might 
be necessary in the for-hire fishery to satisfy the sampling 
requirements of the observer program.
    Response: The purpose of the reef fish observer program is to 
better monitor bycatch in the commercial and for-hire reef fish 
fisheries. Vessels will be randomly selected to carry observers 
ensuring the universe of vessels included is representative of all 
statistical sub-zones in the Gulf. Vessel selection will be done in a 
manner best capturing the behaviors of the respective reef fish 
fisheries. Forcing owners or operators of reef fish vessels to take 
additional trips would alter the behavior of the fishery and bias the 
information collected through the program, and nothing in the program 
requires additional trips.
    Comment 3: One commenter expressed concern that observers might 
ally themselves with commercial fishermen and not report data 
accurately.
    Response: To ensure observers collecting fishery information are 
qualified, NMFS, through its National Observer Program, contracts with 
or certifies private observer provider companies to recruit, hire, and 
deploy observers. Existing guidelines for observer candidates include a 
bachelor's degree from an accredited college or university with a major 
in one of the natural sciences, or a combination of marine science and 
fisheries course work with specialized experience. Observer candidates 
must complete required training by passing written and/or oral tests, 
demonstrate their potential to collect accurate field data, and 
demonstrate their ability to react to unfamiliar situations at sea in a 
professional manner. Data collected by observers are reviewed for 
accuracy.
    Comment 4: Twelve comments were received in support of a mandatory 
observer program for commercial and for-hire reef fish fisheries. They 
indicated these programs would provide bycatch information improving 
future stock assessments and resulting management measures.
    Response: The Magnuson-Stevens Act requires the agency to establish 
a standardized methodology to assess the amount and type of bycatch 
occurring in the fishery. An observer program will improve the bycatch 
information being collected through on-the-water observations. 
Additionally, this information could be used for ground-truthing data 
collected through current and future reef fish logbook reporting 
programs.
    Comment 5: Relying only on potential reductions in shrimp trawl 
bycatch of juvenile red snapper through bycatch reduction devices (BRD) 
or from future downsizing of the shrimp fleet due to changing economic 
conditions, is not sufficient to end overfishing and help rebuild this 
species in the Gulf of Mexico. Other management measures must be 
included, like reducing directed catch and minimizing bycatch from all 
sources, including related recreational and commercial reef fish 
fisheries. New information from fishermen and other sources has emerged 
indicating bycatch from various sources can contribute to red snapper 
depletion and should be considered.
    Response: The shrimp trawl fishery accounts for over 90 percent of 
the total red snapper bycatch. Based on the most recent peer-reviewed 
stock assessment conducted in 1999, the red snapper stock cannot 
rebuild to the stock biomass capable of producing the maximum 
sustainable yield (BMSY) unless some bycatch reduction from 
the shrimp fishery occurs, even if harvest is prohibited for the 
directed fishery. Using the 1999 stock assessment and estimates of 
shrimp bycatch reductions from BRDs (40 percent) and a predicted 
contraction of the shrimp fleet of 30-50 percent, it was determined the 
stock had a greater than 50 percent chance of rebuilding if total 
allowable catch (TAC) was held constant at the current 9.12 million-lb 
(4.14 million-kg) level. Based on that assessment and the best 
scientific information available at the time, no additional management 
measures would be required to rebuild the stock. However, a preliminary 
new assessment report is now undergoing scientific review. This 
assessment may show that additional management measures are required. 
Once finalized, that report will be reviewed by NMFS and the Council in 
developing an appropriate action. Such action could include: changing 
bag, size, or trip limits; creating areas closed to reef fish or shrimp 
fishing; creating bycatch quotas; or changing seasonal closures.
    Comment 6: Eleven commenters suggested rebuilding the stock could 
be accomplished by reducing TAC from the current 9.12 million lb (4.14 
million kg).
    Response: According to the best scientific information available at 
the time Amendment 22 was approved, given the significance of shrimp 
trawl bycatch to the ability of the red snapper stock to rebuild, 
changes in TAC do very little towards rebuilding the stock. If TAC is 
reduced to 6 million lb (2.7 million kg), the stock is estimated to 
reach BMSY only 1 to 3 years sooner than if TAC is 
maintained at 9.12 million lb (4.14 million kg) over the 31-year 
rebuilding period. However, ending overfishing sooner through 
reductions in TAC could adversely affect the recreational and 
commercial fisheries, and coastal fishing communities dependent on 
them, due to this forgone yield. Economic analyses suggest these losses 
could be as great as 84 million dollars from 2005-2009 for the 
commercial and for-hire fisheries.
    In choosing the preferred alternative, the Council weighed 
rebuilding the stock within NMFS's technical guidance and the economic 
harm the directed fishery would incur from reductions in TAC. The 
decision to maintain TAC at 9.12 million lb (4,14 million kg) is 
consistent with the Council's rebuilding obligations and the national 
standards.
    Comment 7: The amendment contains an impermissibly narrow range of 
management choices and does not consider the use of various measures 
identified and supported during scoping and other comment periods, 
including reductions in bag or trip limits, compatible seasons for 
species caught together, and area closures.
    Response: Initially, a variety of rebuilding time frames and 
rebuilding plans were developed and are detailed in Appendix 1 of 
Amendment 22. However, it became evident the rebuilding times proposed 
could not be achieved unless there were large

[[Page 32268]]

reductions in red snapper bycatch in the shrimp fishery. A closure of 
both the red snapper and shrimp fisheries was considered but rejected 
because it would close down two fisheries important to the United 
States' economy. Even with a prohibition of harvest for the directed 
fishery, projections indicated the red snapper stock could not recover 
to BMSY unless bycatch reductions of greater than the 
current 40 percent could be achieved. Therefore, rebuilding the stock 
in less than the maximum 31 years, would require even greater 
reductions in shrimp bycatch. With a recent economic downturn in the 
domestic shrimp fleet, further restrictions on shrimp harvest could 
have severe social and economic consequences. In light of these social 
and economic impacts, the 31-year rebuilding schedule was deemed the 
most practicable and was incorporated into the rebuilding plans.
    Because projections of shrimp fishery effort showed needed 
reductions in shrimp bycatch mortality could be achieved via existing 
regulations without the need to impose further regulations on the 
directed red snapper fishery, other management measures such as closed 
areas were considered but rejected. Additional measures to reduce 
bycatch in the shrimp fishery such as bycatch quotas and time/area 
closures were not considered in Amendment 22 to the Reef Fish FMP. The 
Council determined these would be more appropriately considered in the 
Shrimp FMP.
    As the red snapper stock increases in size, the catchability of 
this species is likely to increase. This may mean future regulations 
would be needed to constrain recreational and commercial harvests to 
levels consistent with the rebuilding plan. Currently, an individual 
fishing quota (IFQ) system is being developed by the Council to give 
commercial fishermen more flexibility in how they harvest red snapper 
and to reduce the need for regulations. However, for the recreational 
fishery, the necessary effort reductions could be more difficult to 
address. Fishing seasons may need to be shortened, or other measures 
such as more restrictive bag limits may need to be put in place. 
Moreover, these restrictions would increase in severity over time to 
keep catches within the TAC limit as the stock abundance increased. Any 
new regulations would be based on future stock assessments, including 
the aforementioned assessment currently being finalized.
    Comment 8: Preferred rebuilding plan alternative 2 in Amendment 22 
does not end overfishing or rebuild the Gulf red snapper population as 
soon as possible.
    Response: Magnuson-Stevens Act Sec.  304(e)(4)(A)(i) states ``For a 
fishery that is overfished, any fishery management plan, amendment, or 
proposed regulations prepared pursuant to paragraph (3) or paragraph 
(5) for such fishery shall specify a time period for ending overfishing 
and rebuilding the fishery that shall be as short as possible, taking 
into account the status and biology of any overfished stocks of fish, 
the needs of fishing communities, recommendations by international 
organizations in which the United States participates, and the 
interaction of the overfished stock of fish within the marine 
ecosystem.''
    As discussed in Comment 7, other alternatives that would shorten 
the rebuilding period for red snapper or end overfishing sooner would 
require a decrease in TAC for the directed fishery or additional 
reductions in shrimp trawl bycatch. However, these alternatives were 
not selected because they would have a severe socioeconomic effect on 
the fishery. For example, it was estimated a reduction in TAC from 9.12 
million lb (4.14 million kg) to 6 million lb (2.7 million kg) would 
result in losses of 84 million dollars for just the 5-year period of 
2005-2009 alone.
    Comment 9: Amendment 22 ignores the best available science.
    Response: Amendment 22 is based on a 1999 stock assessment which 
was certified by the Southeast Fisheries Science Center as representing 
the best available scientific information.
    The commenter is correct that new data have become available on 
issues such as release mortality and regulatory discards; however, the 
peer review process for that information is not yet complete. Stock 
assessments are based on complex models that take in a variety of 
fishery information, integrating estimates of stock abundance with 
fishing effort to project how many fish may be caught for various time 
periods. It is extremely difficult to evaluate accurately the effects 
of new information without conducting a new assessment. The new data 
the commenter refers to are currently being reviewed and used in a new 
stock assessment in the SEDAR process. The results of this assessment 
will be presented to the Council and NMFS later in 2005, and based on 
the assessment outcome, could lead to the development of new management 
measures. A description of how the Council and NMFS would review and 
adjust the rebuilding plan, either through a plan amendment, regulatory 
amendment, interim rule, or emergency action is contained in the 
amendment.
    Comment 10: There are no provisions to address potential overages 
in the recreational sector.
    Response: Unlike the commercial fishery where landings are reported 
through dealers who can provide real-time landings, recreational 
landings are estimated using Marine Recreational Fishery Statistics 
Survey (MRFSS) data for 2-month intervals called waves. Because survey 
information needs to be tabulated, there is a delay of several months 
between when a wave ends and the landings for that wave can be 
estimated. Therefore, NMFS and the Council have tried to constrain the 
recreational harvest on average to the quota by using measures such as 
bag limits, size limits, and seasonal closures rather than attempt to 
directly monitor the quota.
    Since the 1999 assessment upon which current fishing regulations 
are based, the recreational harvest has fluctuated around the quota. In 
2000, the recreational harvest was well below the quota, while the 
harvest was well above the quota in 2002. For 2001 and 2003, the 
harvest was very close to the quota, only exceeding it by less than 3 
percent for each year. The cumulative catch during 1999-2003 was less 
than the cumulative quota for that period. Thus, current constraints on 
the fishing mortality rate appear to be limiting the recreational 
harvest to near the quota. However, should harvest levels increase, or 
should new information provided through a stock assessment indicate 
these measures are inadequate, the Council and NMFS would need to 
develop and implement new rules.
    Comment 11: Amendment 22 does not adequately address bycatch.
    Response: Amendment 22 evaluates in detail the practicability of 
additional management measures to reduce bycatch and bycatch mortality. 
The practicability analysis conducted in the amendment indicates it 
would not be practical to further reduce bycatch in the directed red 
snapper fishery due to the high levels of red snapper bycatch in the 
shrimp fishery. Based on the 1999 assessment, the shrimp fishery is 
estimated to account for 99.5 percent of the red snapper bycatch. The 
practicability analysis also determined bycatch reduction from the 
shrimp fishery would be more appropriately addressed through an 
amendment to the Shrimp FMP rather than the Reef Fish FMP.
    Although the peer review process is not yet complete, the red 
snapper stock was assessed through the SEDAR process and that 
assessment

[[Page 32269]]

incorporated new information. This information included 5 years of 
observer data on shrimp trawl bycatch, fishery-dependent data on 
observed changes in lengths of harvested fish, better characterizations 
of discard mortality rates, and estimates of changes in age one 
recruitment from scientific surveys. The information, combined with 4 
years of data on the fishery under the same management regulations, is 
expected to provide a better understanding of the impacts of BRDs, the 
regulations on the directed fishery, and the effects of new 
regulations. NMFS and the Council plan to use the results of this 
assessment to develop logical and defensible measures to reduce shrimp 
trawl bycatch and/or directed fishery discards as necessary and 
practicable. Shrimp trawl bycatch would be addressed in an amendment to 
the Shrimp FMP. Additional measures to reduce bycatch in the directed 
red snapper fishery would be evaluated in future reef fish actions if 
deemed necessary.
    Comment 12: The anticipated long-term drop in shrimping effort and 
juvenile snapper bycatch - described in the plan as the most important 
contribution to red snapper recovery - is exaggerated.
    Response: The commenter bases this statement on a non-peer reviewed 
study suggesting the contribution to the total fishing mortality rate 
by the shrimp fishery is lower than the rate assumed in the 1999 stock 
assessment. However, the projections based on the 1999 stock assessment 
for the rebuilding plan were constructed using the best available data 
and underwent extensive peer review. This assessment predicts red 
snapper will rebuild within the time frame specified by NMFS' technical 
guidance if TAC is held at 9.12 million lb (4.14 million kg) and 
bycatch from the shrimp fleet is reduced sufficiently. This prediction 
relies on some assumptions about anticipated changes in the shrimp 
fishery, but those assumptions are based on current economic 
circumstances and thus are neutral with respect to the biology of red 
snapper.
    Amendment 22 provides a detailed summary of past, current, and 
future economic conditions in the shrimp fishery and is based on peer-
reviewed economic analyses. These analyses indicate the conditions for 
the shrimp fishery took an abrupt change in the latter half of 2001 
when imports surged and macroeconomic conditions deteriorated. The 
industry was also hit by sharply declining prices and higher insurance 
premiums. At least for the large vessel sector, where most of the red 
snapper bycatch occurs, profits turned into losses by the end of 2001. 
The deteriorating trend appears to have continued through 2002 and 
2003, exacerbated by increased fuel prices of over 20 percent beginning 
in the latter part of 2002 and continuing through 2005. As a 
consequence of these changes, red snapper bycatch from the shrimp 
fishery is anticipated to be reduced sufficiently for the stock to 
rebuild within the allowable time frame.
    However, the Council is aware that better information is needed on 
the shrimp fishery. Amendment 13 to the Shrimp FMP has alternatives 
that establish bycatch reporting methodologies and improve collection 
of shrimping effort data in the exclusive economic zone through the use 
of logbooks, electronic logbooks, and observers; require the completion 
of a Gulf Shrimp Vessel and Gear Characterization Form; and require 
reporting and certification of landings during a moratorium to control 
effort by the shrimp fishery. This moratorium, also being developed in 
Amendment 13, would establish a moratorium on the issuance of 
commercial shrimp vessel permits as a way to begin comprehensively 
addressing shrimp effort.
    Comment 13: The high level of red snapper bycatch mortality from 
minimum size limit and closed season regulations is not addressed.
    Response: Projections from the 1999 red snapper stock assessment 
indicate the stock could be rebuilt to BMSY under the 
current regulations. Also, the practicability analysis contained in the 
amendment reviewed the best available scientific information available 
on bycatch in the fishery and concluded that it is currently being 
reduced to the extent practicable in the directed fishery. Therefore, 
there is no need to address minimum size limits or closed seasons at 
this time. However, an assessment of the red snapper stock through the 
SEDAR process is currently in the peer review process. This assessment 
will evaluate and use new information detailed above. Should the 
results of this assessment indicate different regulatory measures are 
needed to better manage this fishery, the Council and NMFS will address 
these changes in the appropriate management vehicle.

Discussion of Potential Future Action

    Amendment 22 clearly stated that the rebuilding plan would be 
subject to periodic reviews of the actual progress made toward 
rebuilding the stock, and pursuant to such reviews relevant management 
measures would be adjusted as necessary to accommodate new scientific 
information and ensure stock recovery. Also, the amendment noted that a 
new assessment was scheduled to begin in 2004, which would likely lead 
to improved scientific information and the need for adjustments related 
to red snapper rebuilding.
    The SEDAR process has produced a preliminary assessment report for 
the red snapper stock in the Gulf of Mexico. While the report has yet 
to complete the full peer review process, the results of this 
assessment process in conjunction with other new scientific 
information, highlight the potential need for adjustments to related 
management measures, just as envisioned in Amendment 22. Precisely 
which management measures should be adjusted and the appropriate extent 
of potential changes, have yet to be determined by the Gulf Council and 
NMFS, but it is clear that some adjustment may be appropriate.
    Initially, it is possible that reductions in the TAC for the 
fishery may be considered necessary. This could result in reductions 
for both the commercial and recreational sectors of the fishery. 
However, the need for such a reduction in TAC will depend on the 
appropriateness and effectiveness of other potential measures intended 
to benefit red snapper.
    Much of the new information and measures critical to red snapper 
rebuilding relate to bycatch reduction in the Gulf shrimp fishery. New 
scientific information indicates the bycatch reduction achieved under 
actual fishing conditions with currently approved BRDs is less than 
estimated in the previous assessment upon which Amendment 22 was based. 
As a result, BRD performance will need to be addressed. This issue may 
be addressed a number of ways, including decertifying existing BRDs, 
facilitating the development and approval of more effective BRDs 
through changes to the testing protocol, achieving increased bycatch 
reduction via other measures, or more accurately accounting for the 
current levels of bycatch in adjusting other associated management 
measures.
    Given the obvious implications for overall levels of shrimp trawl 
bycatch, accurately assessing potential reductions in shrimping effort 
in the Gulf has been a source of debate for red snapper rebuilding. New 
scientific information as to observed reductions in effort will be 
incorporated into new management measures to more accurately account 
for the related benefits to the red snapper stock.
    Estimating the stock level that would produce maximum sustainable 
yield is extremely difficult given the poor

[[Page 32270]]

understanding of recruitment at stock sizes that are substantially 
greater than any that have been observed. Consequently, the BMSY 
estimates that are produced by the previous stock assessment model are 
highly uncertain. Models are prone to great uncertainty when they are 
required to project beyond a range of data on which they are based. The 
red snapper stock has been assessed only at a limited range of 
abundance levels, all of which are characterized by conditions of heavy 
exploitation. As a result, estimates of BMSY that are based 
on these data indicate the stock is capable of producing a yield that 
is much higher than any observed in the past. Recruitment levels at 
much greater stock size will need to be observed to gain a better 
understanding of the true value of BMSY.
    Also, current analysis indicates that the existing minimum size 
limit may be resulting in unacceptably high bycatch and bycatch 
mortality in the directed red snapper fishery. As a result, some 
reduction or even potential elimination of the minimum size limit may 
be deemed appropriate.
    Finally, the Gulf Council is in the process of developing an IFQ 
program for the commercial red snapper fishery. While this program is 
not directly related to red snapper rebuilding, it is anticipated that 
the program will result in reductions in red snapper bycatch via the 
elimination of closed seasons. Therefore, in assessing the likely 
success of the rebuilding plan, there must be some consideration of the 
potential impacts of the impending IFQ program.
    Using the best scientific information available, the Council and 
NMFS will work together in developing the most appropriate combination 
of the above measures to ensure the timely recovery of the red snapper 
stock in the Gulf of Mexico.

Classification

    The Administrator, Southeast Region, NMFS, has determined Amendment 
22 is necessary for the conservation and management of the Gulf red 
snapper fishery and is consistent with the national standards of the 
Magnuson-Stevens Act and other applicable laws.
    The Council and NMFS prepared an FSEIS for Amendment 22. The FSEIS 
was filed with the Environmental Protection Agency on August 20, 2004. 
A notice of availability was published on August 27, 2004 (69 FR 
52668). In approving Amendment 22, on October 27, 2004, NMFS issued a 
ROD identifying the selected alternative. A copy of the ROD is 
available from NMFS (see ADDRESSES).
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a FRFA for this action. The FRFA incorporates the 
IRFA, and a summary of the analyses completed to support the action. A 
copy of the FRFA is available from NMFS (see ADDRESSES). Following is a 
summary of the analysis.
    The Magnuson-Stevens Act provides the statutory basis for this 
final rule. This final rule will provide the regulatory authority to 
establish an observer program for the reef fish fishery, with full 
implementation to be achieved upon obtaining sufficient funding. 
Additionally, consistent with the requirements of the Magnuson-Stevens 
Act, Amendment 22 will establish biological reference points and stock 
status criteria for red snapper, establish a rebuilding plan for the 
overfished red snapper stock, and develop and enhance the MRFSS through 
the inclusion of headboats in that survey.
    The objectives of this final rule are to bring management of the 
red snapper fishery into compliance with requirements of the Magnuson-
Stevens Act, to address the overfished and overfishing conditions of 
the red snapper stock, and to establish a standardized methodology to 
collect bycatch information in the fishery.
    Two issues were raised by public comments in relation to potential 
costs associated with the observer requirements. NMFS' responses to 
Comment 1 and Comment 2 in this rule address these concerns and explain 
the potential for increased cost to a vessel owner is quite low given 
NMFS' flexibility in structuring the vessel selection process and the 
overall small percentage of vessels that are likely to be selected for 
observer coverage. Therefore, no changes were made in the final rule as 
a result of those comments.
    This final rule will impact both the commercial and recreational 
participants in the Gulf reef fish fishery. At present, both the 
commercial and for-hire reef fish vessel permits are under a 
moratorium, and no new permits will be issued during the moratorium. 
There are 1,158 vessels with active commercial reef fish permits. Of 
these commercial permitees, 131 entities hold Class 1 licenses that 
allow a vessel trip limit of up to 2,000 lb (907 kg) of red snapper, 
and approximately 357 entities hold Class 2 licenses that allow a trip 
limit of up to 200 lb (91 kg) of red snapper. There are 1,515 for-hire 
vessels with permits for both reef fish and coastal migratory pelagics. 
Also, there are 431 dealers who purchase reef fish from various vessels 
in the Gulf of Mexico. This final rule is expected to affect all these 
reef fish commercial and for-hire vessels and dealers.
    According to a survey of commercial fishing vessels in the Gulf, 
average gross receipts ranged from $24,095 for low-volume vertical line 
vessels to $116,989 for high-volume longline vessels. Also, according 
to a survey of reef fish processors in the Southeast, employment by 
reef fish processors totaled 700 individuals, both part- and full-time. 
Given this total and the likelihood that fish dealers are generally of 
smaller size than processors, employment by any of the affected dealers 
is very likely to be less than 100 individuals. Furthermore, according 
to two surveys of for-hire vessels in the Gulf, average gross receipts 
for charterboats range from $58,000 in the eastern Gulf of Mexico to 
$81,000 in the western Gulf while gross receipts for headboats range 
from $281,000 in the eastern Gulf to $550,000 in the western Gulf. A 
fishing business is considered a small entity if it is independently 
owned and operated and is not dominant in its field of operation, and 
if it has annual receipts not in excess of $3.5 million in the case of 
commercial harvesting entities or $6.0 million in the case of for-hire 
entities, or if it has fewer than 500 employees in the case of fish 
processors, or fewer than 100 employees in the case of fish dealers. 
Given these data on earnings and employment, all of the business 
entities affected by this final rule are determined to be small 
business entities.
    Specification of sustainable fishing parameters has no economic 
impacts on small entities because it does not alter the current harvest 
or use of component stocks. The specification merely establishes 
benchmarks for fishery and resource evaluation from which future 
management actions would be based. As benchmarks, these parameters do 
not limit how, when, where, or with what frequency participants in the 
fishery engage the resource. For rebuilding the red snapper stock, a 
TAC of 9.12 million lb (4.14 million kg) is selected, and because this 
is the same as the current TAC, this measure has no impacts on small 
entities. The selected alternative in the final rule for bycatch 
reporting is an observer program for the commercial and for-hire reef 
fish fishery. An observer program would be new to the Gulf of Mexico 
reef fish fishery and is expected to potentially affect all commercial 
and for-hire vessels, although each year only a sample of these vessels 
would be selected to carry

[[Page 32271]]

observers. An observer program can lessen the reporting burden for 
bycatch to the extent that this task would be carried out by a trained 
observer. Assuming the observer program covers 8 percent of commercial 
vessel trips, 1 percent of charterboat trips, and 4 percent of headboat 
trips, total costs would be about $5.92 million annually, including the 
total costs for all observers' food and accommodations, which are 
estimated to range between $98,640 and $123,300 annually. Owners of 
vessels selected for observer coverage will be responsible only for the 
cost associated with providing food and accommodations for the 
observer. NMFS will cover the cost of providing the observer. Because 
there will be no expected reduction in harvests as a result of bycatch 
reporting, and the bycatch reporting through an observer program will 
be imposed only on vessels, dealers are not expected to be adversely 
affected by the final rule.
    Four basic alternatives were considered for the rebuilding plan; 
two are constant catch strategies and two are constant fishing 
mortality rate (F) strategies. The no action alternative is not a 
viable alternative because the Magnuson-Stevens Act requires that a 
rebuilding plan be instituted for overfished stocks such as the red 
snapper stock. Under the constant catch strategies, the selected 
alternative for the final rule will hold TAC constant at 9.12 million 
lb (4.14 million kg), while the other alternative would keep TAC 
constant at 6.0 million lb (2.7 million kg). For the constant F 
strategies, one alternative would hold the TAC at 9.12 million lb (4.14 
million kg) for a period of years and gradually increase it over time, 
while the other would hold the TAC constant at 6.0 million lb (2.7 
million kg) for a period of years and increase it over time. In 
essence, the significant alternative to the selected constant TAC of 
9.12 million lb (4.14 million kg) is a constant TAC of 6.0 million lb 
(2.7 million kg). Over the first 5 years, this lower TAC would reduce 
commercial vessel profits by $3.92 million and for-hire vessel profits 
by $18.35 million. The profit reduction for dealers cannot be 
estimated. Thus, the final rule will enable the achievement of the goal 
to rebuild the stock while minimizing the impacts on small entities.
    Five alternatives were considered to the final rule for reporting 
bycatch in the commercial and for-hire reef fish fisheries. The final 
rule will provide the regulatory authority to establish an observer 
program for randomly selected reef fish permitted vessels. Alternative 
1 is the no action alternative. Alternative 2 would require all 
permitted reef fish vessels in the Gulf of Mexico to participate in an 
electronic logbook program that includes bycatch reporting. Alternative 
3 is similar to Alternative 2, but the electronic logbook program would 
be required only for a randomly selected sample of reef fish permitted 
vessels. Alternative 5 would expand the current bycatch reporting 
program for commercial reef fish and mackerel permitted vessels to 
cover 100 percent of such vessels and all Federally permitted for-hire 
vessels. Alternative 6 would enhance the MRFSS to include the headboat 
sector using the same sampling methodology as for charter vessels.
    Among the bycatch reporting alternatives, Alternative 1 (no action) 
is the least costly since it would require no additional burden on the 
fishermen and the Federal government other than what is currently being 
incurred in generating bycatch information. The cost of Alternative 2 
would range from $0.87 million to $2.9 million, with burden time 
ranging from 3,764 to 4,053 hours for commercial vessels and from $1.16 
million to $3.88 million, with burden time of 89,240 hours for for-hire 
vessels. The cost of Alternative 3 is proportional to that of 
Alternative 2 based on sample size. Alternative 5 would affect 926 
additional commercial vessels, with burden time ranging from 3,009 to 
3,241 hours, and 1,552 for-hire vessels, with burden time of about 
89,240 hours. Alternative 6 would mainly affect headboat vessels. Using 
the same sampling technique as for charter vessels, approximately 85 
headboats would be sampled per wave (two-month period). The selected 
alternative of the final rule, Alternative 4, is estimated to cost 
$5.92 million per year, though the majority of the cost will be borne 
by the government, any additional reporting and record-keeping 
activities for the individual business entities are less likely to 
increase under an observer program since most would be conducted by the 
observer. Under the observer program, the owner of a vessel selected 
for observer coverage would be responsible only for the cost associated 
with providing food and accommodations for the observer. NMFS would 
cover the cost of providing the observer. Thus, the final rule is 
expected to best achieve the Council's objectives for bycatch reporting 
at the least possible cost to the fishery participants.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' As part of this rulemaking process, NMFS prepared a fishery 
bulletin, which also serves as a small entity compliance guide. The 
fishery bulletin will be sent to all vessel permit holders for the Gulf 
reef fish fishery.
    Notwithstanding any other provision of law, no person is required 
to respond to, and no person shall 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 a collection-of-information requirement subject 
to the PRA which has been approved by OMB under control number 0648-
0205. Public reporting burden for notification requirements for the 
purpose of accommodating observer coverage is estimated to average 5 
minutes per response, 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 these burden estimates or any other aspect of 
this data collection, including suggestions for reducing the burden, to 
NMFS (see ADDRESSES) and by e-mail to [email protected], or 
fax to 202-395-7285.

List of Subjects in 50 CFR Part 622

    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.

    Dated: May 26, 2005.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 622 is amended as 
follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

0
1. The authority citation for part 622 continues to read as follows:

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

0
2. In Sec.  622.4, the second sentence of paragraph (h)(1) introductory 
text and the first sentence of paragraph (h)(1)(ii) are revised to read 
as follows:


Sec.  622.4  Permits and fees.

* * * * *

[[Page 32272]]

    (h) * * *
    (1) * * * In the interim years, renewal is automatic (without 
application) for a vessel owner or a dealer who has met the specific 
requirements for the requested permit, license, or endorsement; who has 
complied with all reporting and data collection requirements, including 
observer requirements, under the Magnuson-Stevens Act; and who is not 
subject to a sanction or denial under paragraph (j) of this section. * 
* *
* * * * *
    (ii) * * * If the RA's notification indicates that the owner's or 
dealer's permit, license, or endorsement is ineligible for automatic 
renewal, the notification will specify the reasons and, if applicable, 
will provide an opportunity for correction of any deficiencies. * * *
* * * * *

0
3. In Sec.  622.8, paragraph (a)(3) is added and paragraphs (c)(4) and 
(c)(5) are revised to read as follows:


Sec.  622.8  At-sea observer coverage.

    (a) * * *
    (3) Gulf reef fish. A vessel for which a Federal commercial vessel 
permit for Gulf reef fish or a charter vessel/headboat permit for Gulf 
reef fish has been issued must carry a NMFS-approved observer, if the 
vessel's trip is selected by the SRD for observer coverage. Vessel 
permit renewal is contingent upon compliance with this paragraph 
(a)(3).
* * * * *
    (c) * * *
    (4) Allow the observer free and unobstructed access to the vessel's 
bridge, working decks, holding bins, weight scales, holds, and any 
other space used to hold, process, weigh, or store fish.
    (5) Allow the observer to inspect and copy the vessel's log, 
communications logs, and any records associated with the catch and 
distribution of fish for that trip.
[FR Doc. 05-10986 Filed 5-27-05; 2:36 pm]
BILLING CODE 3510-22-S