[Federal Register Volume 73, Number 211 (Thursday, October 30, 2008)]
[Rules and Regulations]
[Pages 64562-64565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25938]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 0808051052-81365-02]
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: Final rule; statement of procedure.

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SUMMARY: NMFS issues this final rule to provide information concerning 
the procedures, schedule, and eligibility requirements NMFS will use in

[[Page 64563]]

conducting a referendum for an individual fishing quota (IFQ) program 
for the Gulf of Mexico (Gulf) commercial grouper and tilefish 
fisheries. 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 rule is to implement the 
referendum consistent with the requirements of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act).

DATES: This final rule is effective December 1, 2008.

ADDRESSES: Copies of supporting documentation for this final rule, 
which includes a regulatory impact review (RIR) and a Regulatory 
Flexibility Act Analysis (RFAA), are available from Susan Gerhart, 
NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, 
FL 33701.

FOR FURTHER INFORMATION CONTACT: Susan Gerhart, 727-824-5305.

SUPPLEMENTARY INFORMATION: The reef fish fishery in the exclusive 
economic 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. A Public Hearing 
Draft of Amendment 29 is available on the Council's website at http://www.gulfcouncil.org.
    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.
    On September 4, 2008, NMFS published a proposed rule to implement 
the referendum procedures for a potential Gulf commercial grouper and 
tilefish IFQ program and requested public comment through October 6, 
2008 (73 FR 51617, September 4, 2008).

Comments and Responses

    NMFS received eleven individual comment letters and one letter 
signed by 42 individuals, with comments falling into three general 
categories. Several comments were in favor of the referendum, some 
comments opposed the eligibility criteria for voting in the Gulf 
grouper and tilefish referendum, and other comments opposed a potential 
IFQ program. Those comments that expressed opposition to the IFQ 
program itself fall outside the scope of this rulemaking. The purpose 
of this rulemaking is to establish the procedures, schedule, and 
eligibility requirements to conduct a referendum for a potential IFQ 
program. Opportunities for public comment on the IFQ program proposal 
contained in Amendment 29 will be available during the proposed rule 
stage if the referendum is approved. Following is a summary of the 
comments NMFS received and NMFS' respective responses.
    Comment 1: The eligibility criteria and procedures for conducting 
the referendum are fair and equitable and meet other mandates of the 
Magnuson-Stevens Act. NMFS is urged to conduct the referendum in 
December so that an implementation date of no later than January 1, 
2010, can be accomplished.
    Response: NMFS determined the criteria for conducting the 
referendum were fair and equitable. In making this determination, NMFS 
concluded that: 1) The Council's referendum criteria are rationally 
connected to and further the objectives of 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, 3) the criteria enable validating a participants 
eligibility, and 4) the referendum can be administered in a fair and 
equitable manner within a reasonable time period.
    NMFS' proposed timeline to conduct the referendum is consistent 
with the guidelines. NMFS will mail referendum ballots to eligible 
voters as soon as practicable after the final referendum rule is 
published. Eligible voters must 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 will tally the votes and 
post the results within 60 days of receiving the ballots. If the 
referendum is approved, the Council may submit the IFQ program proposal 
contained in Amendment 29 to the FMP to NMFS for review, approval, and 
implementation. If Amendment 29 is approved by the Secretary, the 
expected implementation date would be January 1, 2010.
    Comment 2: The proposed minimum landing requirement of 8,000 lb 
(3,629 kg) average is unfair, and all individuals who fish for grouper 
should be eligible to vote. Every permit holder should be entitled to 
vote, even if no grouper or tilefish were landed during the qualifying 
time period. Those poised to benefit from the IFQ program would be the 
only people allowed to vote. This heavily skews the outcome.
    Response: Section 303A(c)(6)(D) of the Magnuson-Stevens Act states, 
``For multi-species permits in the Gulf of Mexico, only those 
participants who have substantially fished the species proposed to be 
included in the individual fishing quota program shall be eligible to 
vote in such a referendum.'' The Council interprets

[[Page 64564]]

``substantially fished'' to mean a substantial contribution to overall 
fishery production in total harvest. The Council indicated in its 
referendum initiation request letter that a potential participant's 
annual harvest, in combination with maintaining a high level of harvest 
during the qualifying time period, is the most straight-forward, 
readily accessible, and accurate means of identifying whether a 
participant has substantially fished for grouper or tilefish species. 
Under the 8,000-lb (3,629-kg) criterion, individuals eligible to vote 
in the referendum account for 89 percent of grouper and tilefish 
landings during the qualifying time period.

Purpose of this Final 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 Amendment 29, as ultimately 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 final rule is to notify 
potential participants in the referendum, and members of the public, of 
the procedures, schedule, and eligibility requirements that NMFS will 
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 and public 
comment on any proposed rule.

Referendum Process

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 referendum will be conducted in a 
fair and equitable manner and is 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 referendum criteria are consistent with the 
guidelines.

Who Will 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 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 will be eligible to 
vote in the referendum. The Council's referendum initiation request 
letter defined ``substantially fished'' as ``only those commercial reef 
fish permit holders, with active or renewable permits (within 1 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 lb (3,629 kg) (per permit).'' 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 
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.

Will Votes Be Weighted?

    The Council is 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 Will Votes Be Conducted?

    On or about December 1, 2008, NMFS will mail eligible voters a 
ballot for each permit associated with qualifying landings from the 
years 1999 through 2004. NMFS will 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 Avenue 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 will not be considered in 
determining the outcome of the referendum. Although it will not be 
required, voters may want to consider submitting their ballots by 
registered mail.

How Will the Outcome of the Referendum Be Determined?

    Vote counting will be conducted by NMFS. Approval or disapproval of 
the referendum will be determined by a majority (i.e., a number greater 
than half of a total) of the votes cast. NMFS will prepare a media 
release announcing the results of the referendum and will 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 will 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 will present the results of the referendum at the April 13-17, 
2009, Council meeting. If the referendum fails to approve the proposed 
IFQ program, the Council may consider an alternative management 
approach to control effort in the Gulf commercial grouper and tilefish 
fisheries, or the Council may modify the proposed IFQ program and 
request a new referendum. According to the guidelines, any request from 
the Council to initiate a new referendum in the same fishery must 
include an explanation of the substantive changes to the proposed IFQ 
program or the changes in the fishery that would warrant initiation of 
an additional referendum.
    If the referendum is approved, the Council is authorized, if it so 
decides, to submit Amendment 29 and proposed 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 would have additional 
opportunities to comment during public comment periods on Amendment 29 
and the proposed regulations.

[[Page 64565]]

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. Actions in Amendment 29 include: Initial eligibility for 
participation 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, a procedure to accommodate adjustments 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 to the 
Secretary for review and possible approval and implementation. More 
information on Amendment 29, including Frequently Asked Questions about 
the proposed IFQ program, may be found on NMFS' Southeast Regional 
Office's website at http://sero.nmfs.noaa.gov/sf/Amendment29.htm.

Classification

    The Administrator, Southeast Region, NMFS, determined that this 
action is consistent with the Magnuson-Stevens Act and other applicable 
laws.
    This final 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 during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for this certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, no initial or final 
regulatory flexibility analysis is required and none has been 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: October 24, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E8-25938 Filed 10-29-08; 8:45 am]
BILLING CODE 3510-22-S