[Federal Register Volume 75, Number 39 (Monday, March 1, 2010)]
[Rules and Regulations]
[Pages 9116-9119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4191]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 090206140-91414-04]
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:  Final rule.

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SUMMARY:  NMFS issues this final 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 
final rule removes several measures constraining harvest of shallow-
water grouper species that were inadvertently not removed in the final 
rule for Amendment 29, further clarifies existing criteria for approval 
of new landing locations for both the red snapper IFQ program and 
grouper and tilefish IFQ program, and provides a

[[Page 9117]]

definition of ``offloading'' in the codified text for IFQ participants. 
The intent of this final 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:  This rule is effective March 31, 2010.

ADDRESSES:  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-
5505.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted by e-mail to [email protected], or 
[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 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).
    This final rule includes administrative measures that were not 
included in the final rule for Amendment 29 (74 FR 44732). These 
measures allow for more efficient functioning of the grouper and 
tilefish IFQ program, reduce confusion among IFQ participants who are 
offloading their fish, and further enhance enforcement capabilities of 
the IFQ programs, as intended by the Council. This final rule also 
discusses two options considered by the Council at the October 2009 
Council meeting. On December 10, 2009, NMFS published a proposed rule 
to supplement the final rule for Amendment 29 and requested public 
comment (74 FR 65500). NMFS invited comments in the proposed rule on 
these options, which include extending the offloading window past 6 
p.m. and providing an option to fishermen at the time of landing to 
provide a headcount of the IFQ fish onboard. NMFS received comments on 
both of these options, which are provided along with NMFS' responses to 
these comments in the comments and responses section below.

Comments and Responses

    NMFS received seven public comments on the proposed supplemental 
rule to Amendment 29. One comment, regarding transferability of IFQ 
shares, fell outside the scope of the rule and was not addressed in 
this final rule. One comment pertained to the actions addressed in the 
proposed rule; the rest pertained to options the Council may consider 
in the future. No comments were received pertaining to the FRFA or 
economic impacts of this action. The following are NMFS' responses to 
topics in these comments.
    Comment 1: The rule should further clarify what it means for a 
landing location to be accessible by public roads.
    Response: The text states that in order for a proposed landing 
location to be considered publicly accessible, vehicles must have 
access to the site via public roads. NMFS believes that this language 
provides a sufficient description of the requirement, and further 
clarification is unnecessary.
    Comment 2: If a landing location is disapproved, documentation 
should be provided explaining the disapproval, and an appeals process 
should be created.
    Response: NMFS is working to develop a process for informing 
participants of the reasons for disapproving a landing location. This 
may include a publicly posted list of disapproved sites, or individual 
responses to participants.
    An appeals process is neither practical nor necessary for the NMFS 
disapproval of a landing location. Locations are disapproved by NMFS if 
they are not accessible or are deemed unsafe for law enforcement 
agents. If participants rectify the situation to eliminate these 
deficiencies, they can re-submit the location for another review.
    Comment 3: Fishermen with smaller vessels frequently do not have 
computers onboard and should be allowed to call dealers to receive a 
landing transaction code to transport fish.
    Response: Under current regulations, the dealer must enter all 
landing transactions through the dealer IFQ account to receive a 
landing transaction code. Thus, fishermen may call their dealer to 
electronically connect to the IFQ system if they are at a landing site 
other than the dealer facility. The fishermen must still accurately 
weigh the fish on site to complete the landing transaction before 
transporting the fish. There is no specific requirement for a computer 
to be onboard a vessel and be used as the mechanism to receive a 
landing transaction code, only that a landing transaction code be 
received by the fishermen prior to transporting fish.
    Comment 4: Allowing a headcount would help small-scale fishermen 
because weighing fish onboard is difficult, time consuming, and not 
very accurate.
    Response: The Council is considering this option for the same 
reasons expressed in the comment. NMFS' preliminary determination is 
that providing a headcount instead of the weight of the catch at the 
time of landing would not allow for adequate monitoring and enforcement 
of the IFQ program. However, if the Council chooses to proceed with 
this option, some controls would need to be applied to restrict the use 
of this option (see Comment 5).
    Comment 5: If a headcount is implemented, limitations and controls 
should be developed, such as allowing the headcount only for trailered 
vessels at public sites, creating a trip limit (e.g., 200 lb (90.7 kg)) 
for vessels using a headcount, and requiring weights if the 
shareholder's allocation is less than a minimum amount.
    Response: If the Council chooses to proceed with the headcount 
option, the suggested restrictions would be considered. These controls 
and limitations would help address NMFS' concerns about monitoring and 
enforcement. However, these changes to the regulations would need to be 
addressed in future regulatory action before regulations could be 
implemented.
    Comment 6: Extending the offloading time period past 6 p.m. would 
help fishermen who trailer their boats. Under current regulations, some 
fishermen landing after 6 p.m. must leave the boat overnight at their 
landing location and offload in the morning. Problems include: leaving 
a vessel unattended in a public area, the need to reassemble a crew for 
offloading, and restrictions on docking/parking at public sites.
    Response: The Council is considering this option for the same 
reasons expressed in the comment. Because Amendment 29 specifically 
states that the allowable time period to offload IFQ fish is between 6 
a.m. and 6 p.m. local time, the Council would need to address this 
option in a future plan amendment if it is to be implemented in the 
future.

Classification

    The Administrator, Southeast Region, NMFS has determined that the 
FMP, Amendment 29, and the final rule are consistent with the Magnuson-
Stevens Act, and other applicable laws.

[[Page 9118]]

    This final 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 final rule, namely the measure to remove the trip limit and 
accountability measures 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. 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 effects would be expected to accrue to this rule in 
addition to those described in Amendment 29 and no comments were 
received about the economic impacts of the proposed rule, therefore, no 
new economic analysis has been conducted for those measures in this 
final rule.
    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by OMB under control number (0648-0587). 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.
    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: February 23, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, 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.  622.16, 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.
* * * * *

0
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]

0
4. In Sec.  622.44, paragraph (h) is removed.

0
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 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

[[Page 9119]]

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. 2010-4191 Filed 2-26-10; 8:45 am]
BILLING CODE 3510-22-S