[Federal Register Volume 77, Number 175 (Monday, September 10, 2012)]
[Proposed Rules]
[Pages 55448-55450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-22221]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 622

[Docket No. 120718253-2367-01]
RIN 0648-BC30


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Snapper-Grouper Fishery off the Southern Atlantic States; 
Transferability of Black Sea Bass Pot Endorsements

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 proposes regulations to implement a revision of a 
disapproved action from Amendment 18A (the Resubmittal) to the Fishery 
Management Plan (FMP) for the Snapper-Grouper Fishery of the South 
Atlantic Region (Amendment 18A), as prepared and submitted by the South 
Atlantic Fishery Management Council (Council). If implemented, this 
rule would allow black sea bass pot endorsements to be transferred 
under specific conditions. The intent of this rule is to implement the 
transferability action originally submitted in Amendment 18A, as 
clarified in the Resubmittal.

DATES: Written comments must be received on or before September 25, 
2012.

ADDRESSES: You may submit comments on the proposed rule identified by 
``NOAA-NMFS-2012-0128'' by any of the following methods:
     Electronic Submissions: Submit electronic comments via the 
Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
     Mail: Kate Michie, Southeast Regional Office, NMFS, 263 
13th Avenue South, St. Petersburg, FL 33701.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    To submit comments through the Federal e-Rulemaking Portal: http://www.regulations.gov, enter ``NOAA-NMFS-2012-0128'' in the search field 
and click on ``search''. After you located the proposed rule, click on 
``Submit a Comment'' link in that row. This will display the comment 
web form. You can enter your submitter information (unless you prefer 
to remain anonymous), and type your comment on the web form. You can 
also attach additional files (up to 10MB) in Microsoft Word, Excel, 
WordPerfect, or Adobe PDF file formats only.
    Comments received through means not specified in this rule will not 
be considered.
    For further assistance with submitting a comment, see the 
``Commenting'' section at http://www.regulations.gov/#!faqs or the Help 
section at http://www.regulations.gov.
    Electronic copies of Amendment 18A and the Resubmittal may be 
obtained from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov/sf/SASnapperGrouperHomepage.htm. Amendment 18A 
includes an Environmental Impact Statement (EIS), an Initial Regulatory 
Flexibility Act Analysis (IRFA), a Regulatory Impact Review, and a 
Fishery Impact Statement. The Resubmittal includes a RIR and a FIS.

FOR FURTHER INFORMATION CONTACT: Kate Michie, 727-824-5305.

SUPPLEMENTARY INFORMATION: The snapper-grouper fishery of the South 
Atlantic 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

    Amendment 18A, implemented through final rulemaking on July 1, 
2012, (77 FR 32408, June 1, 2012), includes a provision to limit 
participation in the black sea bass pot segment of the snapper-grouper 
fishery through the establishment of an endorsement program. In order 
to qualify for a black sea bass pot endorsement, an entity must have 
held a valid South Atlantic snapper-grouper unlimited permit on the 
effective date of the final rule implementing Amendment 18A (or July 1, 
2012). In addition to this requirement, qualifying permit holders must 
have had average annual black sea bass landings of at least 2,500 lb 
(1,134 kg), round weight, using black sea bass pot gear between January 
1, 1999 and December 31, 2010. Those permit holders with no reported 
commercial landings of black sea bass using black sea bass pot gear 
between January 1, 2008, and December 31, 2010, did not qualify for an 
endorsement. The number of South Atlantic snapper-grouper unlimited 
permit holders that meet these criteria as of September 10, 2012 is 32, 
and more endorsements could be issued after the appeals process 
finalizes. Only those vessels associated with a valid endorsement can 
legally fish for black sea bass in the South Atlantic using black sea 
bass pot gear.
    Amendment 18A also contained an action to allow for the transfer of 
black sea bass pot endorsements. However, NMFS disapproved this action 
because Amendment 18A and the supporting EIS incorrectly described the 
preferred alternative as allowing transfer of landings history without 
transfer of the permit. However, the following analysis of alternatives 
applied a correct understanding of what the preferred alternative was, 
i.e. that landings history would not be transferred independently of 
the permit. Therefore, NMFS disapproved that measure, and the Council 
revised and resubmitted the action addressing transferability of black 
sea bass pot endorsements in an amendment (the Resubmittal). All 
reasonable alternatives for the transferability action were correctly 
characterized in the supporting analysis in Amendment 18A pursuant to 
the National Environmental Policy Act, including biological, economic, 
social,

[[Page 55449]]

administrative, and cumulative impacts of the action, and that analysis 
was incorporated by reference in the Resubmittal. The only possible 
impact not discussed was any economic impact that could result from 
assigning landings history to the endorsement or to the permit. 
However, the only condition under which the assignment of landings 
history would make a difference is if permit/endorsement holders and 
potential buyers of endorsements/permits expect the endorsement system 
to be converted to a catch share program. Amendment 18A did not 
consider a catch share program and it is too speculative to consider 
the economic effects of a catch share program at this time.
    This rule would allow transfer of a black sea bass pot endorsement 
to an individual or entity that holds or simultaneously obtains a valid 
South Atlantic snapper-grouper unlimited permit. In order to be 
transferred, a black sea bass pot endorsement must be valid or 
renewable. Black sea bass pot endorsements may be transferred 
independently from the South Atlantic snapper-grouper unlimited permit 
with which it is associated. Landings history would not be transferred 
with the endorsement. NMFS will attribute black sea bass landings to 
the associated South Atlantic snapper-grouper unlimited permit 
regardless of whether the landings occurred before or after the 
endorsement was issued. Black sea bass pot endorsements would not be 
renewed automatically with the South Atlantic snapper-grouper permit 
with which it is associated. The endorsement must be renewed separately 
from the permit on the Federal Permit Application for Vessels Fishing 
in the Exclusive Economic Zone (EEZ).

Other Changes to Codified Text

    This rule also proposes to revise codified text in Sec.  622.40, 
regarding issuance of the identification tags for black sea bass pots. 
In the final rule for Amendment 18A (77 FR 32408, June 1, 2012), the 
regulations incorrectly stated that NMFS would issue the identification 
tags for black sea bass pots and new identification tags would be 
issued each year. Endorsement holders order identification tags through 
NMFS, however, a supplier actually issues the identification tags. 
Endorsement holders must apply for new tags each permit year at the 
same time they renew their permit and endorsement. The regulations 
would be revised to clarify these points.
    This rule would also remove and reserve paragraph (a)(2) in Sec.  
622.43, because this paragraph was inadvertently not removed in the 
final rule implementing the Comprehensive Ecosystem-Based Amendment 2 
for the South Atlantic (76 FR 82183, December 30, 2011). That rule 
established an annual catch limit of zero for South Atlantic 
octocorals, thereby, eliminating the quota from the regulations and the 
need for quota closure provisions. The quota closure provisions, 
however, were inadvertently not removed in that final rule; therefore, 
this rule removes the obsolete quota closure provisions.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the FMP, the Resubmitted Amendment 18A Action 
Amendment, other provisions of the Magnuson-Stevens Act, and other 
applicable law, subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this determination is as follows:
    The purpose of this proposed rule is to allow black sea bass pot 
endorsements, created through Amendment 18A, to be transferred among 
South Atlantic snapper-grouper unlimited permit holders. The Magnuson-
Stevens Act provides the statutory basis for this proposed rule.
    NMFS expects this rule, if implemented, to directly affect 
commercial vessels that landed black sea bass because snapper-grouper 
permit holders that have fished for black sea bass in the past are the 
most likely candidates to have an endorsement transferred to them. 
During 2005-2010, an annual average of 247 vessels with valid South 
Atlantic commercial snapper-grouper unlimited permits landed black sea 
bass, generating dockside revenues of approximately $1.103 million 
(2010 dollars). Each vessel, therefore, generated an average of 
approximately $4,465 in gross revenues from black sea bass. Vessels 
that operate in the black sea bass segment of the snapper-grouper 
fishery may also operate in other segments of the snapper-grouper 
fishery, the revenues of which are not reflected in these totals.
    No other small entities that would be expected to be directly 
affected by this proposed rule have been identified.
    The Small Business Administration has established size criteria for 
all major industry sectors in the U.S. including fish harvesters. A 
business involved in fish harvesting is classified as a small business 
if it is independently owned and operated, is not dominant in its field 
of operation (including its affiliates), and has combined annual 
receipts not in excess of $4.0 million (NAICS code 114111, finfish 
fishing) for all its affiliated operations worldwide. Based on the 
average revenue estimates provided above, all commercial vessels 
expected to be directly affected by this proposed rule are determined, 
for the purpose of this analysis, to be small business entities.
    The proposed action is expected to increase individual 
profitability of those owning the endorsement because of the increased 
value of an endorsement once it becomes transferable. Also, industry 
profitability is expected to increase as more efficient operators enter 
the black sea bass commercial harvesting sector. Thirty-two 
endorsements have been issued as of September 10, 2012. Although more 
could be issued after the appeals process finalizes, there will be a 
limited number of endorsements. Thus, the overall profit increase would 
not be significant relative to the size of the black sea bass 
commercial sector and the entire commercial sector of the snapper-
grouper fishery.
    Because this proposed rule, if implemented, would not be expected 
to have a significant economic impact on any small entities, an initial 
regulatory flexibility analysis is not required and none has been 
prepared.

List of Subjects in 50 CFR Part 622

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

    Dated: September 5, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the 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.


[[Page 55450]]


    2. In Sec.  622.4, the introductory paragraph in paragraph 
(a)(2)(xv) is revised, paragraph (a)(2)(xv)(D) is added, and the first 
sentence in paragraph (g)(1) is revised to read as follows:


Sec.  622.4  Permits and fees.

    (a) * * *
    (2) * * *
    (xv) South Atlantic black sea bass pot endorsement. For a person 
aboard a vessel, for which a commercial vessel permit for South 
Atlantic snapper-grouper unlimited has been issued, to use a black sea 
bass pot in the South Atlantic EEZ, a South Atlantic black sea bass pot 
endorsement must have been issued to the vessel and it must be valid 
and on board the vessel, and the commercial vessel permit for South 
Atlantic snapper-grouper unlimited must be valid and on board the 
vessel. A permit or endorsement that has expired is not valid. This 
endorsement must be renewed annually and may only be renewed if the 
associated vessel has a valid commercial vessel permit for South 
Atlantic snapper-grouper unlimited or if the endorsement and associated 
permit are being concurrently renewed. The RA will not reissue this 
endorsement if the endorsement is revoked or if the RA does not receive 
a complete application for renewal of the endorsement within 1 year 
after the endorsement's expiration date.
* * * * *
    (D) Transferability. A valid or renewable black sea bass pot 
endorsement may be transferred between any two entities that hold, or 
simultaneously obtain a valid South Atlantic snapper-grouper unlimited 
permit. Endorsements may be transferred independently from the South 
Atlantic snapper-grouper unlimited permit. NMFS will attribute black 
sea bass landings to the associated South Atlantic snapper-grouper 
unlimited permit regardless of whether the landings occurred before or 
after the endorsement was issued. Only legal landings reported in 
compliance with applicable state and Federal regulations are 
acceptable.
* * * * *
    (g) * * *
    (1) * * * A vessel permit, license, or endorsement or a dealer 
permit or endorsement issued under this section is not transferable or 
assignable, except as provided in paragraph (m) of this section for a 
commercial vessel permit for Gulf reef fish, in paragraph (o) of this 
section for a king mackerel gillnet permit, in paragraph (q) of this 
section for a commercial vessel permit for king mackerel, in paragraph 
(r) of this section for a charter vessel/headboat permit for Gulf 
coastal migratory pelagic fish or Gulf reef fish, in paragraph (s) of 
this section for a commercial vessel moratorium permit for Gulf shrimp, 
in Sec.  622.17(c) for a commercial vessel permit for golden crab, in 
Sec.  622.18(b) for a commercial vessel permit for South Atlantic 
snapper-grouper, in Sec.  622.19(b) for a commercial vessel permit for 
South Atlantic rock shrimp, in Sec.  622.4(a)(2)(xiv)(D) for an eastern 
Gulf reef fish bottom longline endorsement, and in Sec.  
622.4(a)(2)(xv)(D) for a South Atlantic black sea bass pot endorsement. 
* * *
* * * * *
    3. In Sec.  622.40, paragraph (d)(1)(i)(D) is revised to read as 
follows:


Sec.  622.40  Limitations on traps and pots.

* * * * *
    (d) * * *
    (1) * * *
    (i) * * *
    (D) A vessel that has on board a valid Federal commercial permit 
for South Atlantic snapper-grouper and a South Atlantic black sea bass 
pot endorsement that fishes in the South Atlantic EEZ on a trip with 
black sea bass pots, may possess only 35 black sea bass pots per vessel 
per permit year. Each black sea bass pot in the water or onboard a 
vessel in the South Atlantic EEZ, must have a valid identification tag 
attached. Endorsement holders must apply for new tags each permit year 
through NMFS to replace the tags from the previous year.
* * * * *


Sec.  622.43  [Amended]

    4. In Sec.  622.43, paragraph (a)(2) is removed and reserved.
[FR Doc. 2012-22221 Filed 9-7-12; 8:45 am]
BILLING CODE 3510-22-P