[Federal Register Volume 74, Number 236 (Thursday, December 10, 2009)]
[Proposed Rules]
[Pages 65500-65503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29478]



[[Page 65500]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 090206140-91419-04]
RIN 0648-AX39


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Reef Fish Fishery of the Gulf of Mexico; Amendment 29 Supplement

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 supplement the regulations 
implementing Amendment 29 to the Fishery Management Plan for Reef Fish 
Resources of the Gulf of Mexico (FMP), as prepared and submitted by the 
Gulf of Mexico Fishery Management Council (Council). Amendment 29 
established a multi-species individual fishing quota (IFQ) program for 
the grouper and tilefish component of the commercial sector of the reef 
fish fishery in the Gulf of Mexico (Gulf) exclusive economic zone. This 
proposed rule would remove several measures constraining harvest of 
shallow-water grouper species that were inadvertently not removed in 
the final rule for Amendment 29, further clarify existing criteria for 
approval of new landing locations for both the red snapper IFQ program 
and grouper and tilefish IFQ program, and provide a definition of 
``offloading'' in the codified text for IFQ participants. This proposed 
rule also discusses two options considered by the Council. NMFS is 
seeking comment on one of these options, which would give IFQ fishermen 
the option to provide a headcount of the fish on board at the time of 
landing. The intent of this proposed rule is to enhance IFQ program 
enforcement capabilities, reduce confusion for IFQ participants 
offloading their fish, and allow for more efficient functioning of the 
IFQ programs for red snapper and groupers and tilefishes.

DATES:  Written comments on this proposed rule must be received no 
later than 5 p.m., eastern time, on January 11, 2010.

ADDRESSES:  You may submit comments, identified by ``0648-AX39,'' by 
any one 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, Attn: Susan Gerhart.
     Mail: Susan Gerhart, Southeast Regional Office, NMFS, 263 
13th Avenue South, St. Petersburg, FL 33701
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. 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-2008-0223'' in the keyword 
search, then select ``Send a Comment or Submission.'' 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 in 
Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
    Copies of Amendment 29, which includes a final environmental impact 
statement (FEIS), an initial regulatory flexibility analysis, and a 
regulatory impact review (RIR) 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 
website at http://www.gulfcouncil.org/.
    Copies of the final regulatory flexibility analysis (FRFA), and 
record of decision may be obtained from Susan Gerhart, Southeast 
Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
    Written comments regarding the burden-hour estimate or other 
aspects of the collection-of-information requirement contained in this 
proposed rule may be submitted to Richard Malinowski, Southeast 
Regional Office, NMFS, and by e-mail to [email protected], or 
by fax to 202-395-7285.

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

SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico 
is 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

    On July 2, 2009, NMFS approved Amendment 29. Amendment 29 created 
an IFQ program for the grouper and tilefish component of the commercial 
sector of the Gulf reef fish fishery. A final rule implementing the 
amendment published on August 31, 2009 (74 FR 44732). This proposed 
rule includes three administrative measures that were not included in 
the final rule for Amendment 29. These administrative measures would 
allow for more efficient functioning of the grouper and tilefish IFQ 
program, reduce confusion among IFQ participants that are offloading 
their fish, and further enhance enforcement capabilities of the red 
snapper IFQ program and the IFQ program for groupers and tilefishes, as 
intended by the Council. This proposed rule also discusses two options 
considered by the Council at the October 2009 Council meeting. NMFS 
specifically invites comments in this proposed rulemaking on one of 
these options, namely a provision that would allow fishermen to provide 
a headcount of the fish on board at the time of landing.

Management Measures Contained in This Proposed Rule

Remove measures that constrain commercial harvest

    Amendment 29 states, ``Approval and implementation of the IFQ 
program will result in the elimination of existing management measures 
intended to constrain commercial harvest, such as grouper trip 
limits.'' However, the trip limit and accountability measures (AMs) 
implemented in May 2009, through the final rule for Amendment 30B to 
the FMP (74 FR 17603, April 18, 2009), were inadvertently not removed 
in the final rule for Amendment 29. This proposed rule would remove the 
trip limit and AMs implemented through Amendment 30B to the FMP that 
constrain commercial harvest.
    IFQ programs are intended to eliminate the need for trip limits so 
fishermen have the flexibility to fish when and where they want, 
thereby promoting safety at sea and reducing economic hardship. In the 
current regulations, the trip limit is defined as follows: if 80 
percent of either the gag or the red grouper quota is reached, and 100 
percent of the quota is projected to be reached prior to the end of the 
fishing year, a 200-lb (90.7-kg) trip limit will be implemented for the

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applicable species. This proposed rule would remove this trip limit as 
it is no longer needed to constrain commercial harvest with the 
implementation of the grouper and tilefish IFQ program. Under the IFQ 
program, the rate of harvest would be controlled by the availability of 
individual fishing quotas.
    The Magnuson-Stevens Act, re-authorized in 2006, requires that 
annual catch limits (ACLs) and AMs for stocks that are undergoing 
overfishing or are overfished be implemented by the end of 2010. The 
National Standard 1 guidelines define AMs as management controls to 
prevent ACLs, including sector ACLs, from being exceeded, and to 
correct or mitigate overages of the ACL if they occur. The AMs 
implemented through Amendment 30B that constrain commercial harvest 
state: if 100 percent of any one of the three quotas (gag, red grouper, 
or shallow-water grouper) is reached, the entire shallow-water grouper 
sector of the commercial fishery will close for the remainder of the 
fishing year. The grouper and tilefish IFQ program was designed to act 
as an AM, in and of itself, by constraining harvest to individual 
fishing quotas. The IFQ program also requires any overage (as much as 
10 percent of allocation remaining on the shareholder's last trip) to 
be deducted from the shareholder's allocation the subsequent fishing 
year. This provision acts as an AM by mitigating overages after they 
occur. Because the IFQ program itself acts as an AM and there are other 
AMs inherent in the IFQ program, the AMs included in Amendment 30B that 
constrain commercial harvest would be removed through this rulemaking.
    The FEIS, FRFA, and RIR conducted for Amendment 29 adequately 
analyzed the impacts of the management measures proposed in this rule. 
Regulatory provisions in this rule were either inadvertently not 
included in the proposed and final rules for Amendment 29, or they 
provide greater specificity for provisions previously implemented 
through Amendment 29. The supporting regulatory analyses for Amendment 
29 either specifically addressed the impacts of these measures, or 
analyzed associated impacts assuming these measures would also be 
implemented. Because no additional analysis is necessary to support the 
measures currently proposed, no such analysis was prepared.

Clarify landing location criteria

    NMFS Office for Law Enforcement must approve landing locations 
prior to landing or offloading red snapper, groupers, or tilefishes. 
Proposed landing locations may be submitted at any time; however, new 
landing locations are approved only at the end of each calendar-year 
quarter. To have a landing location approved by the end of the 
calendar-year quarter, it must be submitted at least 45 days before the 
end of the calendar-year quarter. Current regulations state that 
landing locations must be publicly accessible by land and water, and a 
street address must be provided for a landing location. If there is no 
street address on record, then Global Positioning System coordinates 
must be provided.
    To assist law enforcement in determining eligibility of landing 
locations submitted for review, more specific criteria would be 
established to provide greater clarification for the requirement that 
landing locations must be publicly accessible. These criteria would 
include, but are not limited to the following: the site must be 
accessible for vehicles via public roads; the site must be accessible 
for vessels via navigable waters; and no other condition may impede 
free and immediate access to the landing location, such as locked 
gates, guard dogs, or any other physical barrier. Any participant 
submitting a landing location request would be required to fill out a 
form on the IFQ website at ifq.sero.nmfs.noaa.gov. The form would 
include a series of questions regarding the landing location and its 
accessability. NMFS Office for Law Enforcement would include this form 
in their review to approve or disapprove proposed sites. Approved 
landing locations are posted on the IFQ website listed above.

Define offloading

    The current regulations define ``landing'' specifically for the red 
snapper IFQ program and the IFQ program for groupers and tilefishes, 
however, ``offloading'' has not yet been defined in the regulations for 
IFQ participants. For the purposes of the red snapper IFQ program and 
the IFQ program for groupers and tilefishes, ``landing'' is defined as 
arriving at a dock, berth, beach, seawall, or ramp. This proposed rule 
would provide a definition of ``offloading'' for IFQ participants in 
the codified text. For the purposes of the red snapper IFQ program and 
the IFQ program for groupers and tilefishes, ``offloading'' would be 
defined as removing IFQ fish from a vessel.

Options considered by the Council

Provide a headcount as a means to estimate the IFQ fish onboard

    Some fishermen who operate in the red snapper IFQ program and the 
IFQ program for groupers and tilefishes trailer their fish to the 
dealer. When IFQ fish are offloaded to a vehicle for transportation to 
a dealer or are trailered to a dealer, a transaction approval code must 
accompany those fish. The implementing regulations for Amendment 29 
specify that an accurate weight must be submitted to complete a landing 
transaction to determine that the fisherman has sufficient allocation 
to cover the amount of fish landed. Therefore, the fishermen must have 
on-site capability to weigh their fish and connect electronically to 
the online IFQ system to complete the transaction and obtain a 
transaction approval code to transport these fish. At the October 2009 
Council meeting, the Council voted to seek public comment on a 
provision that would give fishermen the option to provide a headcount 
of the fish on board at the time of landing, in lieu of reporting the 
weight. Reporting the weight of IFQ fish landed is considered to be an 
important component of monitoring the IFQ program and preventing 
overages. NMFS' preliminary determination is that providing a headcount 
instead of the weight at the time of landing would not allow for 
adequate monitoring and enforcement of the IFQ program. If fishermen 
were to provide a headcount at the time of landing, they would still 
need to connect electronically to the online IFQ system and obtain a 
transaction approval code (using the headcount) to transport those fish 
to the dealer. When they offload their fish at the dealer location, the 
accurate weight would then need to be updated under the same 
transaction approval code (replacing the headcount) to complete that 
transaction. NMFS invites comments on this option, particularly whether 
fishermen would find this option to provide a headcount at the time of 
landing beneficial to their business plans.

Extend the offloading window

    The current allowable time period to offload red snapper, groupers, 
and tilefishes is from 6 a.m. to 6 p.m. At the October 2009 Council 
meeting, the Council voted to consider an option that would extend the 
allowable time period to offload fish by four hours. Therefore, the 
offloading window would be between 6 a.m. and 10 p.m. Extending the 
offloading window could potentially give fishermen greater flexibility 
for when they may offload their fish.

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However, Amendment 29 specifically states that the allowable time 
period to offload IFQ fish is between 6 a.m. and 6 p.m. Therefore, the 
Council would need to address this option in a plan amendment if it is 
to be implemented in the future.

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 Amendment 29, 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.
    NMFS prepared an FEIS for Amendment 29. A notice of availability 
for the FEIS was published on May 8, 2009 (74 FR 21684).
    NMFS prepared a FRFA, as required by section 604 of the Regulatory 
Flexibility Act, for Amendment 29. A copy of the full analysis is 
available from NMFS (see ADDRESSES). Two of the measures contained in 
this proposed rule, namely the measure to remove the trip limit and AMs 
that constrain commercial harvest and the measure to clarify existing 
landing location criteria, are measures inherent in an IFQ program. 
Providing a definition of the term ``offloading'' for IFQ participants 
is further clarification of an existing IFQ component. Because the FRFA 
prepared for Amendment 29 analyzed the economic conditions that would 
exist assuming these measures were already included in the IFQ program 
for Gulf groupers and tilefishes, no new economic analysis has been 
conducted for those measures in this proposed rule.
    This proposed rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA). This requirement has been 
submitted to the Office of Management and Budget (OMB) for approval. 
Public reporting burden for the ``Landing Location Criteria Form'' 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.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments 
regarding the burden estimate or any other aspect of the collection-of-
information requirement, including suggestions for reducing the burden, 
to NMFS and to the OMB (see ADDRESSES).
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall a person be subject to a penalty for failure 
to comply with, a collection of information subject to the requirements 
of the PRA unless that collection of information displays a currently 
valid OMB control number.

List of Subjects in 50 CFR Part 622

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

    Dated: December 4, 2009.
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.  622.16, a sentence is added after the heading in 
paragraph (c)(3)(ii) and paragraphs (c)(3)(v)(A) and (B) are revised to 
read as follows:


Sec.  622.16  Gulf red snapper individual fishing quota (IFQ) program.

* * * * *
    (c) * * *
    (3) * * *
    (ii) * * * For the purpose of this paragraph, offloading means to 
remove IFQ red snapper from a vessel. * * *
* * * * *
    (v) * * *
    (A) Landing locations must have a street address. If there is no 
street address on record for a particular landing location, global 
positioning system (GPS) coordinates for an identifiable geographic 
location must be provided.
    (B) Landing locations must be publicly accessible by land and 
water, and must satisfy the following criteria:
    (1) Vehicles must have access to the site via public roads;
    (2) Vessels must have access to the site via navigable waters;
    (3) No other condition may impede free and immediate access to the 
site by an authorized law enforcement officer. Examples of such 
conditions include, but are not limited to: a locked gate, fence, wall, 
or other barrier preventing 24-hour access to the site; a gated 
community entry point; a guard animal; a posted sign restricting access 
to the site; or any other physical deterrent.
* * * * *
    3. In Sec.  622.20, a sentence is added after the heading in 
paragraph (c)(3)(ii) and paragraphs (c)(3)(v)(A) and (B) are revised to 
read as follows:


Sec.  622.20  Individual fishing quota (IFQ) program for Gulf groupers 
and tilefishes.

* * * * *
    (c) * * *
    (3) * * *
    (ii) * * * For the purpose of this paragraph, offloading means to 
remove IFQ groupers and tilefishes from a vessel. * * *
* * * * *
    (v) * * *
    (A) Landing locations must have a street address. If there is no 
street address on record for a particular landing location, global 
positioning system (GPS) coordinates for an identifiable geographic 
location must be provided.
    (B) Landing locations must be publicly accessible by land and 
water, and must satisfy the following criteria:
    (1) Vehicles must have access to the site via public roads;
    (2) Vessels must have access to the site via navigable waters;
    (3) No other condition may impede free and immediate access to the 
site by an authorized law enforcement officer. Examples of such 
conditions include, but are not limited to: a locked gate, fence, wall, 
or other barrier preventing 24-hour access to the site; a gated 
community entry point; a guard animal; a posted sign restricting access 
to the site; or any other physical deterrent.
* * * * *

Sec.  622.44 [Amended]
    4. In Sec.  622.44, paragraph (h) is removed.
    5. In Sec.  622.49, paragraphs (a)(3)(i), (a)(4)(i), and (a)(5)(i) 
are revised to read as follows:


Sec.  622.49  Accountability measures.

    (a) * * *
    (3) * * *
    (i) Commercial fishery. If SWG commercial landings exceed the 
applicable ACL as specified in this paragraph (a)(3)(i), the AA will 
file a notification with the Office of the Federal Register, at or near 
the

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beginning of the following fishing year, to maintain the SWG commercial 
quota for that following year at the level of the prior year's quota. 
The applicable commercial ACLs for SWG, in gutted weight, are 7.99 
million lb (3.62 million kg) for 2010, and 8.04 million lb (3.65 
million kg) for 2011 and subsequent fishing years.
* * * * *
    (4) * * *
    (i) Commercial fishery. If gag commercial landings exceed the 
applicable ACL as specified in this paragraph (a)(4)(i), the AA will 
file a notification with the Office of the Federal Register, at or near 
the beginning of the following fishing year, to maintain the gag 
commercial quota for that following year at the level of the prior 
year's quota. The applicable commercial ACLs for gag, in gutted weight, 
are 1.71 million lb (0.78 million kg) for 2010, and 1.76 million lb 
(0.80 million kg) for 2011 and subsequent fishing years.
* * * * *
    (5) * * *
    (i) Commercial fishery. If red grouper commercial landings exceed 
the ACL, 5.87 million lb (2.66 million kg) gutted weight, the AA will 
file a notification with the Office of the Federal Register, at or near 
the beginning of the following fishing year, to maintain the red 
grouper commercial quota for that following year at the level of the 
prior year's quota.
* * * * *
[FR Doc. E9-29478 Filed 12-9-09; 8:45 am]
BILLING CODE 3510-22-S