[Federal Register Volume 75, Number 195 (Friday, October 8, 2010)]
[Rules and Regulations]
[Pages 62326-62329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25437]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 100330171-0388-02]
RIN 0648-AY79
Magnuson-Stevens Act Provisions; Fishing Capacity Reduction
Framework
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS amends the framework regulations specifying procedures
for implementing fishing capacity reduction programs (reduction
programs) in accordance with the Magnuson-Stevens Fishery Conservation
and Management (Magnuson-Stevens) Reauthorization Act of 2007. A
reduction program pays harvesters in a fishery that has more vessels
than capacity either to surrender their fishing permits including
relevant fishing histories for that fishery, or surrender all their
fishing permits and cancel their fishing vessels' fishing endorsements
by permanently withdrawing the vessel from all fisheries. The cost of
the program can be paid by post-reduction harvesters, taxpayers, or
others. The intent of a program is to decrease the number of harvesters
in the fishery, increase the economic efficiency of harvesting, and
facilitate the conservation and management of fishery resources in each
fishery in which NMFS conducts a reduction program.
DATES: This final rule is effective November 8, 2010.
ADDRESSES: Copies of the Regulatory Impact Review prepared for this
action may be obtained from Michael A. Sturtevant, Financial Services
Division, NMFS-MB5, 1315 East-West Highway, Silver Spring, MD 20910.
Send comments regarding the burden-hour estimates or other aspects
of the collection-of-information requirements contained in this rule to
Michael A. Sturtevant at the above address and also to the Office of
Information and Regulatory Affairs, Office of Management and Budget
(OMB), Washington, DC 20503 (Attention: NOAA Desk Officer) or e-mail to
[email protected], or fax to (202) 395-7825.
FOR FURTHER INFORMATION CONTACT: Michael A. Sturtevant at 301-713-2390
or [email protected].
SUPPLEMENTARY INFORMATION:
Electronic Access
This Federal Register document is also accessible via the Internet
at http://www.gpoaccess.gov/fr.
I. Statutory and Regulatory Background
Many U.S. fisheries have excess fishing capacity. Excess fishing
capacity decreases earnings, complicates management, and imperils
conservation. To provide for fishing capacity reduction programs, in
1996 Congress amended the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act) by adding section 312(b)-(e) (16
U.S.C. 1861a(b)-(e)). The framework regulations to conduct these
reduction programs were published as an interim final rule on May 18,
2000 (65 FR 31430) and codified as subpart L to 50 CFR part 600. To
finance reduction costs, Congress amended Title XI of the Merchant
Marine Act, 1936 (Title XI), by adding new sections 1111 and 1112. The
Title XI provisions involving
[[Page 62327]]
fishing capacity reduction loans have been codified at 46 U.S.C. Sec.
53735.
This action amends subpart L to 50 CFR part 600 to implement the
Magnuson-Stevens Fishery Conservation and Management Reauthorization
Act (Pub. L. 109-479) amendments for requesting and conducting fishing
capacity reduction programs.
II. Magnuson-Stevens Reauthorization Act Changes
The Magnuson-Stevens Reauthorization Act requires several
modifications to the framework regulations.
First, the Magnuson-Stevens Reauthorization Act contained a
provision that states that, in addition to the appropriate fishery
management Council or Governor of a State, a majority of permit holders
in the fishery may request a buyback program. Such a program may be
conducted if the Secretary determines that the program is necessary to
prevent or end overfishing, rebuild stocks of fish, or achieve
measurable and significant improvements in the conservation and
management of the fishery. As a result of this change, NMFS is amending
the definition of ``Requester'' and the regulations outlining the
process for submission requests to allow permit holders, if they
constitute a majority, to request a buyback program.
Second, the Magnuson-Stevens Reauthorization Act clarified that a
permit holder relinquishes any future limited access system claims
associated with the permit or vessel participating in a reduction
program and that (if not scrapped) the vessel will be effectively
prevented from fishing in Federal or state waters, or fishing on the
high seas or in the waters of a foreign nation. The Magnuson-Stevens
Reauthorization Act revised section 312(b)(2)(A) to recognize that the
owner of a fishing vessel may be different from the permit holder. As a
result of this change, NMFS is amending the regulations to require
that, along with surrendering the permit authorizing the participation
of the vessel in the fishery, for permanent revocation, both the vessel
owner and the permit holder, if different from the vessel owner,
relinquish any claim associated with the vessel or permit that could
qualify such owner or permit holder for any present or future limited
access system permit in the fishery for which the program is
established or in any other fishery.
Third, the Magnuson-Stevens Reauthorization Act added Section
312(b)(5) regarding payment conditions stating that if a vessel is not
scrapped, the Secretary of Commerce (Secretary) must certify that the
vessel will not be used for fishing in the waters of a foreign nation
or fishing on the high seas. As a result of this change, NMFS is
amending the regulations so that the Secretary must make such
certification before making payment. Because each program is different,
and would need to include fishery-specific information and
requirements, NMFS is not proposing at this time specific details that
must be included in the certification plans, but will provide the
requirements for the certification process on a case-by-case basis for
each reduction fishery program when the regulations for that program is
published in the Federal Register.
Fourth, the Magnuson-Stevens Reauthorization Act also changed the
approval threshold for the capacity reduction referendum. The
reauthorized Act now states that a fee system shall be considered
approved if the referendum votes which are cast in favor of the
proposed system constitute ``at least a majority of the permit holders
in the fishery, or 50 percent of the permitted allocation of the
fishery, who participate in the fishery''. Previously, a referendum was
approved with a two-thirds majority of the participating voters. As a
result of this amendment, NOAA amends the referendum procedure
accordingly.
On June 14, 2010, NMFS published proposed regulations in the
Federal Register (75 FR 33570) to implement the program's industry fee
system. This final rule implements the changes as originally proposed
and will be effective on November 8, 2010.
III. Summary of Comments and Responses
NMFS received four comments in response to the proposed rule. Three
were from individuals and one from the U.S. Department of the Interior
(DOI). DOI reviewed the proposed rule and acknowledged that because it
addresses the framework process it would not have any immediate effect
on National Park Service fishery resources.
Comment 1: The commenter expressed concern about the potential
Southeast Alaska Purse Seine Salmon Buyback Program, specifically that
future comment periods be open when stakeholders are available to
participate.
Response: This action affects the framework buyback rule. Each
specific buyback program undergoes a separate rulemaking process. NMFS
strives to get the most public input possible. Thus, for an individual
fishery program with a finite season, NMFS would attempt to avoid
holding open public comment periods solely while the fleet is fishing.
Comment 2: The commenter expressed concern about charter boat
participation in a buyback program.
Response: This rule implements changes to the existing buyback
framework rule. The framework rule establishes parameters for
developing a buyback program for commercial fisheries. It does not
apply to the charter fishing industry.
Comment 3: The commenter expressed concern about future rule making
and claimed that many of the vessels in question were built using tax
payer money and implied that the government paying to scrap them was
inefficient. The commenter also expressed concern about the
implications of this action on small fishing entities and harbor based
communities.
Response: NMFS notes that this rule implements changes to the
existing buyback framework rule. The framework provides a process to
implement fishing capacity reduction programs which remove fishing
permits and may or may not remove fishing vessels. This action does not
directly remove any fishing permits or vessels. Specific rulemaking for
each fishery would be necessary before a program could be implemented.
NMFS would consider any impacts on such fishing at that time.
Comment 4: The commenter expressed concern about the environmental
impacts of fishing trawlers and other gear upon the ocean bottom and
suggested that fishing capacity reduction programs be restricted to
certain gear types.
Response: This action only addresses the buyback framework rule
process. This comment may be appropriate and relevant to the
development of a specific fishing capacity reduction program in an
individual fishery and would be considered when such programs are
developed.
Comment 5: The commenter expressed concern that fishing capacity
reduction programs could increase the proliferation of fish farms which
would cause negative environmental impacts.
Response: This action affects the framework buyback rule and will
not directly impact any fishery. Each specific buyback program
undergoes a separate rulemaking process and consideration of
environmental impacts at that time, which may include the impacts of
aquaculture.
Comment 6: The commenter expressed concerns that the Regulatory
Flexibility Act considerations were insufficient and that small
entities would be adversely affected.
[[Page 62328]]
Response: NMFS disagrees. The framework modifications implemented
by this rule impact only the process under which fishery capacity
reduction programs are created and implemented, and would not directly
implement changes to specific fisheries. Each program will be
individually evaluated and analyzed at the appropriate time including
its impact on small businesses. The Chief Counsel for Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this will not have a significant
economic impact on a substantial number of small entities.
IV. Summary of Revisions
NMFS revises the following sections of the regulations of subpart L
to 50 CFR part 600:
(1) Section 600.1000. This section is revised to amend the
definition of ``Requester'' to include the majority of permit holders
in a fishery.
(2) Section 600.1001(a). This section is amended to provide for
authority that a majority of permit holders in the fishery may initiate
a voluntary fishing capacity reduction program.
(3) Section 600.1002(c). This new provision states the Secretary
may not make a fishing capacity reduction program payment with respect
to a reduction vessel that will not be scrapped unless the Secretary
certifies that the vessel will not be used for fishing in the waters of
the U.S., a foreign nation, or on the high seas.
(4) Section 600.1009(a)(5)(ii). This section is revised to clarify
title restrictions on any reduction vessel that is not scrapped.
(5) Section 600.1010(a). This section is revised to reflect the new
industry fee system approval threshold to at least a majority of the
permit holders in the fishery who participated in the fishery.
V. Classification
The Administrator for Fisheries, NMFS, determined that this rule is
consistent with the Magnuson-Stevens Act, the Magnuson-Stevens
Reauthorization Act (Pub. L. 109-479), and other applicable laws.
The revisions to the framework regulations do not propose any major
new programs. The framework modifications implemented by this rule
impact only the process under which fishery capacity reduction programs
are created and implemented, and would not directly implement changes
to specific fisheries. Therefore, the rulemaking does not lend itself
to quantitative or qualitative analysis. For example, the analysis of
impacts on vessels, vessel revenues, port revenues, fish stock impacts,
etc. are not possible in the absence of identifying specific fisheries
and buyback program fishery components. Each individual program will be
implemented through the rulemaking process in accordance with 5 U.S.C.
553, and thus, each program will be individually evaluated and
appropriately analyzed under NEPA at the appropriate time. This action
is categorically excluded from the requirement to prepare an
environmental assessment in accordance with NOAA Administrative Order
(NAO) 216-6.
The Office of Management and Budget determined that this proposal
is not significant pursuant to Executive Order 12866. NMFS prepared a
Regulatory Impact Review which is available upon request (see
ADDRESSES).
Section 605 of the Regulatory Flexibility Act (RFA) provides that
if an agency determines that a rule will not have a significant impact
on a substantial number of small entities, it may certify that finding
to the Small Business Administration in lieu of preparing an analysis.
Although one commenter expressed concern that the RFA considerations
were insufficient and small entities would be adversely affected, NMFS
disagrees. The framework modifications implemented by this rule impact
only the process under which fishery capacity reduction programs are
created and implemented, and would not directly implement changes to
specific fisheries. Each program will be individually evaluated and
analyzed at the appropriate time including its impact on small
businesses. The Chief Counsel for Regulation of the Department of
Commerce certified to the Chief Counsel for Advocacy of the Small
Business Administration that this will not have a significant economic
impact on a substantial number of small entities.
This final rule does not contain any new collection of information
requirements subject to the PRA. The estimates of the public reporting
burden that have been previously approved by OMB, under OMB Control No.
0648-0376 remain valid. Send comments regarding the collection of
information requirements contained in this final rule, including the
burden hour estimates, and suggestions for reducing the burdens to NMFS
(see ADDRESSES) and to OMB (see ADDRESSES).
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person 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.
List of Subjects in 50 CFR Part 600
Fisheries, Fishing capacity reduction, Fishing permits, Fishing
vessels, Intergovernmental relations, Loan programs--business,
Reporting and recordkeeping requirements.
Dated: October 5, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, NMFS amends 50 CFR part 600 as
follows:
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
0
1. The authority citation for 50 CFR part 600 continues to read as
follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
0
2. In Sec. 600.1000, the definition of ``Requester'' is revised to
read as follows:
Sec. 600.1000 Definitions.
* * * * *
Requester means a Council for a fishery identified in Sec.
600.1001(c) or a state governor for a fishery identified in Sec.
600.1001(d), or a majority of permit holders in the fishery.
* * * * *
0
3. In Sec. 600.1001, paragraph (a) is revised to read as follows:
Sec. 600.1001 Requests.
(a) A Council, the Governor of a State under whose authority a
proposed reduction fishery is subject, or a majority of permit holders
in the fishery may request that NMFS conduct a program in that fishery.
Each request shall be in writing. Each request shall satisfy the
requirements of Sec. 600.1003 or Sec. 600.1005, as applicable, and
enable NMFS to make the determinations required by Sec. 600.1004 or
Sec. 600.1006, as applicable.
* * * * *
0
4. In Sec. 600.1002, paragraph (c) is added to read as follows:
Sec. 600.1002 General requirements.
* * * * *
(c) The Secretary may not make a fishing capacity reduction program
payment with respect to a reduction vessel that will not be scrapped
unless the Secretary certifies that the vessel will not be used for
fishing in the waters of the U.S., a foreign nation, or on the high
seas.
[[Page 62329]]
0
5. In Sec. 600.1009, paragraph (a)(5)(ii) is revised to read as
follows:
Sec. 600.1009 Bids.
(a) * * *
(5) * * *
(ii) Where the program also involves the withdrawal of reduction
vessels from fishing:
(A) Title restrictions imposed by the U.S. Coast Guard on any
reduction vessel that is Federally documented to forever prohibit and
effectively prevent any future use of the reduction vessel for fishing:
(1) In any area subject to the jurisdiction of the United States,
or any state, territory, commonwealth, or possession of the United
States, or
(2) On the high seas, or
(3) In the waters of a foreign nation; or
(B) Scrapping of all reduction vessels involved in a fishing
capacity reduction program, unless the reduction program vessel has
been certified by the Secretary, and the requirements established under
Sec. 600.1002(c) are met. Where reduction vessel scrapping is involved
and the reduction vessel's owner does not comply with the owner's
obligation under the reduction contract to scrap the reduction vessel,
the Secretary may take such measures as necessary to cause the
reduction vessel's prompt scrapping. The scrapping will be at the
reduction vessel owner's risk and expense. Upon completion of
scrapping, NMFS will take such action as may be necessary to recover
from the reduction vessel owner any cost, damages, or other expense
NMFS incurred in the scrapping of the reduction vessel.
* * * * *
0
6. In Sec. 600.1010 paragraph (a) is revised to read as follows:
Sec. 600.1010 Referenda.
(a) Referendum success. A referendum is successful if at least a
majority of the permit holders in the fishery who participate in the
fishery cast ballots in favor of an industry fee system.
* * * * *
[FR Doc. 2010-25437 Filed 10-7-10; 8:45 am]
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