Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Tilefish; Amendment 1, 42580-42604 [E9-20207]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 162 (Monday, August 24, 2009)]
[Rules and Regulations]
[Pages 42580-42604]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-20207]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 648

[Docket No. 071220873-91153-02]
RIN 0648-AS25


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Tilefish; 
Amendment 1

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS is implementing approved measures contained in Amendment 
1 to the Tilefish Fishery Management Plan (FMP), developed by the Mid-
Atlantic Fishery Management Council (Council). The approved measures 
address issues and problems that have been identified since the FMP was 
first implemented. These measures are intended to achieve the 
management objectives of the FMP, and implement an Individual Fishing 
Quota (IFQ) program.

DATES: Effective November 1, 2009, except for the amendments to 15 CFR 
902.1(b), and 50 CFR 648.290 and 648.291, which are effective August 
24, 2009.

ADDRESSES: A Final Environmental Impact Statement (FEIS) was prepared 
for Amendment 1 that describes the action and other alternatives 
considered and provides a thorough analysis of the impacts of the 
approved measures and alternatives. Copies of supporting documents, 
including the Regulatory Impact Review (RIR) and Initial Regulatory 
Flexibility Analysis (IRFA) are available from Daniel Furlong, 
Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, 
Federal Building, 300 South New Street, Dover, DE 19904-6790. A copy of 
the RIR/IRFA is accessible via the Internet at https://www.nero.noaa.gov/.
    Written comments regarding the burden-hour estimate or other 
aspects of the collection-of-information requirement contained in this 
proposed rule should be submitted to the Regional Administrator at 55 
Great Republic Drive, Gloucester, MA 01930, and by e-mail to David_Rostker@omb.eop.gov, or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Timothy A. Cardiasmenos, Fishery 
Policy Analyst, 978-281-9204.

SUPPLEMENTARY INFORMATION:

Background

    In March 2004, the Mid-Atlantic Fishery Management Council 
(Council) began development of Amendment 1 to the FMP to evaluate 
alternatives for a limited access privilege program (LAPP) and other 
measures for limited access tilefish vessels. The Council held 17 
public meetings on Amendment 1 between March 2004 and April 2008. After 
considering a wide range of issues, alternatives, and public input, the 
Council submitted a Draft Environmental Impact Statement (DEIS) for 
Amendment 1 to NMFS. The Notice

[[Page 42581]]

of Availability (NOA) for the DEIS published in the Federal Register on 
December 28, 2007 (72 FR 73798). Following the public comment period 
that ended February 11, 2008, the Council adopted Amendment 1 on April 
10, 2008. The NOA for Amendment 1 was published on May 4, 2009 (74 FR 
20448), with a comment period ending on July 6, 2009. A proposed rule 
for Amendment 1 was published on May 18, 2009 (74 FR 23147), with a 
comment period ending on July 2, 2009. On July 31, 2009, NMFS approved 
Amendment 1 on behalf of the Secretary of Commerce.
    Amendment 1 was developed and adopted by the Council consistent 
with the requirements of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) and other applicable law. 
Amendment 1 management measures were developed by the Council to: (1) 
Implement an IFQ program; (2) establish IFQ transferability of 
ownership; (3) establish a cap on the acquisition of IFQ allocation 
(temporary and permanent); (4) address fees and cost-recovery; (5) 
establish flexibility to revise/adjust the IFQ program; (6) establish 
IFQ reporting requirements; (7) modify the Interactive Voice Response 
(IVR) reporting requirements; (8) require Charter/Party vessel permits, 
and recreational landing limits; (9) improve monitoring of tilefish 
commercial landings; (10) expand the list of management measures that 
can be adjusted via the framework adjustment process; (11) modify the 
Essential Fish Habitat (EFH) designation; (12) modify the habitat areas 
of particular concern (HAPC) designation; and (13) implement measures 
to reduce gear impacts on EFH within the Exclusive Economic Zone (EEZ). 
The IFQ program measures are intended to reduce overcapacity in the 
commercial fishery, and to eliminate, to the extent possible, problems 
associated with a derby-style fishery. Amendment 1 also created a 
tilefish Charter/Party permit, which will require reporting from owners 
or operators of vessels that take fishermen for hire. When the original 
FMP was implemented in 2001, the recreational component of the fishery 
was thought to be small. However, anecdotal evidence suggests that, in 
recent years, the recreational component of the fishery may have grown. 
The tilefish open access Charter/Party permit will provide NMFS with 
the ability to collect landings information on this component of the 
fishery in order to properly assess the health of the stock.

Approved Measures

    Changes in the descriptions of the management measures from the 
proposed rule's descriptions are noted below. Changes in the regulatory 
text from the proposed rule are noted under ``Changes from Proposed 
Rule to Final Rule'' in the preamble of this final rule.

Institution of an IFQ Program in the Tilefish Fishery

    Amendment 1 requires that a qualified vessel owner obtain a valid 
tilefish IFQ Allocation permit to possess or land tilefish in excess of 
an incidental catch limit of tilefish (see below). In addition, a 
vessel owner is required to possess, and carry on board, a valid 
tilefish vessel permit to fish for, possess, or land tilefish in or 
from the Tilefish Management Unit (TMU). An incidental catch of 300 lb 
(136 kg) of tilefish, per trip, can be landed by any vessel issued a 
tilefish vessel permit, other than a Charter/Party vessel permit, not 
fishing under a tilefish IFQ Allocation permit. All permits issued to 
current limited access vessels (i.e., all Full-time and Part-time 
vessels) will be automatically converted to tilefish open access 
permits and issued to the permit holder of record prior to November 1, 
2009. In addition, current holders of tilefish limited access permits 
will be issued a tilefish IFQ Allocation permit if they meet the 
Amendment 1 qualification criteria (see item B below). IFQ Allocation 
permit holders are required to declare all vessel(s) that they own, or 
lease, that will land their IFQ allocation, by providing a list to NMFS 
at the beginning of each fishing year (prior to receiving their IFQ 
Allocation permit). Although not explicitly stated in the proposed 
rule, NMFS clarifies in this final rule that IFQ Allocation permit 
holders must notify NMFS, in writing, if they wish to remove any of 
these declared vessels from the list of vessels that may possess 
tilefish under the authorization of their IFQ Allocation permit. In 
addition, an IFQ Allocation permit holder that wishes to authorize an 
additional vessel(s) to possess tilefish pursuant to the IFQ Allocation 
permit, must send written notification to NMFS that includes the vessel 
permit number, and the date on which the vessel is authorized to land 
IFQ tilefish pursuant to the IFQ Allocation permit.
A. Initial IFQ Allocation Permit Application
    NMFS will notify all vessel owners, for whom NMFS has tilefish 
landings data available, whose vessel(s) meet(s) the qualification 
criteria described below. Applications for initial tilefish IFQ 
Allocation permits must be submitted to NMFS no later than February 22, 
2010.
B. Qualifying Criteria
    Amendment 1 specifies the landings and permit history criteria that 
must be met to qualify for a tilefish IFQ Allocation permit. NMFS has 
clarified these qualifying criteria such that persons or entities who 
purchased vessels with fishing histories that include a 2005 tilefish 
limited access permit meet these initial qualifying criteria. Under 
Amendment 1, a person or entity is eligible to be issued a tilefish IFQ 
Allocation permit if he/she owns a vessel with fishing history 
indicating that the vessel was issued a valid tilefish limited access 
permit for the 2005 permit year or, if the person or entity currently 
holds a valid Confirmation of Permit History (CPH) for the fishing 
history associated with a vessel that was issued a valid tilefish 
limited access permit for the 2005 permit year (see Item C below for 
further detail regarding CPH vessels). Persons or entities that own 
fishing history for a 2005 tilefish Full-time limited access permit 
(Category A or B), are eligible to receive an IFQ allocation based on 
their average landings for the 2001 through 2005 calendar years. These 
landings will be used to assign the IFQ allocations to each vessel 
under the IFQ program by dividing a vessel's landings by the total 
landings within their respective Category for the 2001 through 2005 
calendar years (Category A (i.e., Tier 1, which is allocated 66 percent 
of the adjusted total allowable landings (TAL)) or Category B (i.e., 
Tier 2, which is allocated 15 percent of the adjusted TAL)) to derive a 
percentage. This percentage will then be applied to the adjusted TAL to 
derive an IFQ allocation percentage, which will then be converted to a 
specific number of pounds. For example, a Category A vessel that landed 
20 percent of the average landings within Category A would receive an 
IFQ allocation equal to 20 percent of 66 percent of the adjusted TAL 
(0.2 x 0.66 x 1,895,250 lb (859,671 kg) = 250,173 lb (113,476 kg)), 
which is equal to 13.2 percent of the adjusted TAL. Persons or entities 
that own fishing history for a 2005 tilefish Part-time limited access 
permit (i.e., Category C, which is allocated 19 percent of the adjusted 
TAL), are eligible to receive an equal IFQ allocation by dividing the 
percentage of the adjusted TAL allocated to Category C among those 
vessels that had landings over the 2001-2005 period to derive a 
percentage, which will also be converted to pounds. For example, if 10

[[Page 42582]]

vessels from Category C qualified for an IFQ allocation, each vessel 
owner would receive an IFQ allocation equal to 19 percent of the 
adjusted TAL divided by 10 (0.19/10 = 0.019), or 1.9 percent of the 
adjusted TAL, which is equal to 36,010 lb (16,334 kg). Landings data 
are based on NMFS dealer data for calendar year 2001, and NMFS IVR data 
for calendar years 2002-2005. For additional information, see item D 
(Appeal Permit Denial). In order to qualify for an IFQ Allocation, the 
person or entity that owns fishing history for a vessel issued a valid 
limited access tilefish permit during the 2005 permit year must have 
average landings, from the 2001-2005 period, that constitute at least 
0.5 percent of the landings for the Category for which it was 
permitted. This landings requirement has been clarified from the 
proposed rule to ensure the intent of the Amendment 1 document is met.
C. CPH
    A person who does not currently own a fishing vessel, but who has 
owned a qualifying vessel that has sunk, been destroyed, or transferred 
to another person, is required to have applied for and received a CPH 
in order to be eligible for a tilefish IFQ Allocation permit. The CPH 
provides a benefit to a vessel owner by securing limited access 
eligibility through a registration system when the individual does not 
currently own a vessel for the reasons outlined above. Under Amendment 
1, a tilefish IFQ Allocation permit would be issued to a person or 
entity who owns the history of a vessel associated with a 2005 tilefish 
limited access permit, that is in CPH, and its IFQ allocation would be 
determined by the limited access permit that was placed into CPH, 
provided it meets the respective qualification criteria for that permit 
as specified in item B above. As with any IFQ allocation, IFQ 
associated with a CPH could be transferred. IFQ associated with a CPH 
would count towards an individual's overall interest held in an IFQ 
allocation, and is constrained by the 49-percent cap on the acquisition 
of IFQ.
D. Appeal of a Permit Denial
    Amendment 1 specifies an appeals process for applicants who have 
been denied a tilefish IFQ Allocation permit. Such applicants are able 
to appeal in writing to the NMFS Northeast Regional Administrator (RA). 
Under this amendment, appeals must be based on the grounds that the 
information used by the RA in denying the permit was incorrect. The 
only items subject to appeal under this IFQ program are the initial 
eligibility for IFQ allocations based on ownership of a tilefish 
limited access permit, the accuracy of the amount of landings, and the 
correct assignment of landings to the permit holder. The RA will 
review, evaluate, and render final decisions on appeals. Appeals must 
be submitted to the RA postmarked no later than 30 days after a denial 
of an initial IFQ Allocation permit application. The appeal must be in 
writing, must state the specific grounds for the appeal, and must 
include information to support the appeal. Hardship arguments will not 
be considered. The appeal shall set forth the basis for the applicant's 
belief that the RA's decision was made in error. The appeal may be 
presented, at the request of the applicant, at a hearing before an 
officer appointed by the RA. The final rule clarifies that a hearing 
will only be held if the applicant presents credible documentation with 
the hearing request to show that the RA made an error in determining 
the ownership of a tilefish limited access permit, the accuracy of 
amount of landings, or the correct assignment of landings to the permit 
holder. The hearing officer will make a recommendation to the RA. The 
RA's decision on the appeal is the final decision of the Department of 
Commerce.
    The final regulations implementing the original FMP were effective 
on November 1, 2001. Effective that date, the owners of vessels issued 
a tilefish limited access permit were required to report their landings 
of tilefish for each fishing trip, via the NMFS IVR call-in system. 
Under Amendment 1, NMFS IVR landings data are used to determine 
landings for years 2002 through 2005, and NMFS dealer data are used for 
2001 (excluding landings reported from May 15, 2003, through May 31, 
2004, as a result of the Hadaja v. Evans lawsuit). As indicated above, 
the data on historical landings are based on more than one source. The 
Council examined the different sources of data available for each year 
and, compared the completeness and accuracy of each source of data. The 
implementation of the original FMP, in November 2001, required owners 
of permitted tilefish vessels to submit their landings into the IVR 
system. Although dealer data have historically been used to calculate 
total landings for the purposes of setting an initial quota allocation, 
the Council decided to use IVR data beginning with 2002 landings to 
determine the initial tilefish IFQ Allocations. The rationale for this 
decision is that: (1) Landings reported via the IVR system were being 
used to monitor the tilefish quota during the 2002-2005 time period; 
(2) there were a significant number of documented fishing trips in the 
IVR that were not reported in the dealer data system, particularly for 
Full-time Tier 1 vessels that sold predominantly to a single dealer 
(especially in 2004 and 2005); and (3) the Council did not consider 
that fishermen would have any incentive to over-report landings via the 
IVR system because over-reporting of landings would have caused the 
fishery to close early and adversely affected those who over-reported.
    Under Amendment 1, during the first year of the IFQ program only, 
the RA will reserve 15 percent of the TAL prior to initial distribution 
of IFQ allocations, to be used to allow vessels to fish under a letter 
of authorization (LOA), pending disposition of the applicants' appeals. 
Any portion of the 15-percent reserve remaining after the appeals 
process has been completed will be proportionately distributed back to 
the initial IFQ recipients as soon as possible that year. If resolution 
of appeals requires more than a 15-percent reserve, due either to the 
number of appeals filed, or the time needed to bring them to 
disposition, the allocations of all initial allocation holders will be 
reduced proportionately, as soon as possible that year, to accommodate 
a reserve in excess of the 15 percent. If any subsequent reduction is 
applied to an IFQ Allocation permit holder that has already fished his/
her annual allocation, this further reduction will be treated as an 
overage in the subsequent fishing year (see Other Measures, item E). An 
individual whose IFQ Allocation permit application is denied will be 
eligible to apply for an LOA from the RA to continue to fish for 
tilefish, pending the resolution of his/her appeal. An LOA will only be 
issued to an individual that was issued a valid tilefish limited access 
permit for the 2008 permit year. This LOA will allow a vessel to 
continue to fish for tilefish. NMFS has clarified in this final rule 
that it has preliminarily determined that the number of individuals 
expected to fish under an LOA, pending an appeal, will not land a 
percentage of the adjusted TAL that would unreasonably diminish the 
allocations issued to IFQ Allocation permit holders. However, if 
individuals fishing under an LOA are projected to land a portion of the 
adjusted TAL that NMFS determines will unreasonably diminish the 
allocations issued to IFQ Allocation permit holders, the RA, under 
authority proposed in Sec.  648.291(d)(3), will impose a trip limit to 
reduce the landings of individuals fishing under an LOA.

[[Page 42583]]

IFQ Program Administration

A. IFQ Allocation Permit Renewal and Allocation of the Tilefish IFQ TAL
    In order to ensure the processing of an IFQ Allocation permit by 
the start of each fishing year on November 1, applicants are required 
to submit their application to NMFS by September 15. Applications 
received after September 15 may not be approved and issued in time for 
the beginning of the fishing year, in which case a vessel may not fish 
for tilefish pursuant to that permit until it is processed by NMFS and 
sent to the IFQ Allocation permit holder. All IFQ Allocation permits 
will be issued on an annual basis by the last day of the fishing year 
for which the permit is required. Failure to renew an IFQ Allocation 
permit by this date will be deemed as the voluntary relinquishing of 
the permit, with no possibility for reissue and renewal in a subsequent 
year. The allocation listed on the IFQ Allocation permit will be 
updated to reflect the results of applicable allocation transfers (if 
allocation transfers are approved) and any redistribution of allocation 
resulting from permanent revocation of applicable permits under 15 CFR 
part 904. Allocation of tilefish quota is calculated by multiplying an 
IFQ allocation percentage by the annual adjusted TAL. The updated IFQ 
Allocation permits will indicate any change in the annual commercial 
quota for tilefish, and any debits required as a result of prior 
fishing year overages (see Other Measures, item E). IFQ participants 
will be able to monitor the status of their allocations by contacting 
NMFS or by monitoring the NMFS Web page. IFQ Allocation permit holders 
will be responsible for keeping an accurate record of their landed IFQ 
allocation for the purposes of future leases and transfers, and to 
submit a percentage of their annual ex-vessel landings value to pay a 
cost-recovery fee at the conclusion of the calendar year.
B. Vessel Permit Renewal
    A vessel owner, other than the owner of a private recreational 
vessel, must renew his/her tilefish vessel permit annually to possess 
either an incidental catch of tilefish, or to fish under a tilefish IFQ 
allocation authorized by an IFQ Allocation permit (see item A above) or 
a Charter/Party vessel permit in order to possess amounts of tilefish 
equal to the possession limit for anglers on board.
C. IFQ Transfers (Temporary and Permanent)
    Under Amendment 1, IFQ allocations are fully transferable among 
persons or entities that are permanent U.S. citizens or permanent 
resident aliens, or corporations eligible to own a U.S. Coast Guard 
documented vessel, as long as they meet the requirements of the 
Magnuson-Stevens Act. Tilefish IFQ Allocation permit holders are 
allowed to transfer IFQ on a temporary and permanent basis by 
submitting an IFQ Transfer Form to NMFS. This form must contain at 
least the following data elements: The type of transfer; signature of 
both parties involved in the transfer; the cost associated with the 
transfer; the amount of quota to be transferred; and a list of all 
Federal vessel permit numbers for all vessels authorized to land 
tilefish pursuant to the transferred IFQ allocation. These required 
contents of the transfer form were revised slightly from the proposed 
rule to ensure that NMFS receives the vessel permit numbers for all 
vessels that are authorized to land tilefish pursuant to the 
transferred allocation. This will ensure that landings are properly 
attributed to the appropriate IFQ Allocation permit holder. A temporary 
IFQ transfer (lease) allows an IFQ Allocation permit holder to sell a 
temporary right to land tilefish in a specified amount to any other 
individual for the remainder of the fishing year in which the lease 
occurs. A permanent IFQ transfer allows an IFQ Allocation permit holder 
to permanently sell his/her entire tilefish IFQ allocation, or a 
portion thereof. An IFQ Allocation permit holder who wishes to lease 
his/her IFQ to another individual is responsible for ensuring that he/
she has sufficient remaining allocation for that fishing year to lease. 
Any attempt to lease out quota in excess of an IFQ Allocation permit 
holder's existing quota will be denied by NMFS. Once all, or a portion 
of, an IFQ allocation is leased, the lessee will not be able to 
subsequently sub-lease that IFQ allocation.
D. IFQ Cost-Recovery
    Under section 304(d)(2)(A) of the Magnuson-Stevens Act, the 
Secretary of Commerce (Secretary) is authorized to collect a fee, not 
to exceed 3 percent of the ex-vessel value of fish harvested, to 
recover the costs directly related to the management, data collection 
and analysis, and enforcement of IFQ programs such as the one approved 
in Amendment 1. The procedures for the collection of cost-recovery fees 
are established in this final rule. Under the Magnuson-Stevens Act, the 
cost-recovery fee for any IFQ that was temporarily transferred to 
another IFQ Allocation permit holder is the responsibility of the owner 
of the permanent IFQ allocation, not the lessee. Therefore, under 
Amendment 1, a tilefish IFQ Allocation permit holder with a permanent 
allocation will incur a cost-recovery fee that would be paid from the 
value of tilefish landings, authorized under his/her tilefish IFQ 
Allocation permit, including allocation that is landed under a 
temporary transfer of allocation. The RA will determine the recoverable 
costs associated with the management, data collection and analysis, and 
enforcement of the IFQ allocation program. The cost-recovery billing 
period is defined as the full calendar year, beginning with the start 
of the first calendar year following the effective date of the final 
regulations implementing Amendment 1.
    Prior to the first year of the IFQ program, NMFS will not have 
information needed to determine the recoverable costs. Therefore, 
during the initial cost-recovery billing period, the recoverable costs 
are set at 3 percent. In a given cost-recovery billing period, the 
recoverable costs may not exceed 3 percent of the ex-vessel value of 
the fishery. NMFS has clarified the following description of the 
calculation of the cost-recovery fee so that it better represents the 
intent of the Council, as described in Amendment 1. The recoverable 
costs will be divided by the annual ex-vessel value of the fishery to 
derive the percentage that is recoverable. IFQ Allocation permit 
holders will be assessed a fee based on the recoverable cost percentage 
multiplied by their total allocated tilefish ex-vessel value. If the 
recoverable costs for the first cost-recovery billing period are 
determined to be less than 3 percent, NMFS will issue each IFQ 
Allocation permit holder a fee-overage credit, equal to the amount paid 
in excess of their portion of the recoverable cost, towards their 
subsequent year's fee. Three percent of the total ex-vessel value of 
all tilefish IFQ landings during the cost-recovery billing period, as 
reported to NMFS from Federally permitted dealers, is the maximum 
annual cost that could be recoverable in the fishery. Payment of the 
cost-recovery fee is a condition of an IFQ Allocation permit. NMFS will 
mail a cost-recovery bill to each IFQ Allocation permit holder for the 
IFQ cost-recovery fee incurred by that IFQ Allocation permit holder for 
the previous cost-recovery billing period.

[[Page 42584]]

IFQ Allocation permit holders are required to submit payment within 45 
days of the date of the NMFS cost-recovery bill. A tilefish IFQ 
Allocation permit will not be renewed by NMFS (i.e., not be issued), 
for the subsequent fishing year, until payment for the prior cost-
recovery billing period fee is received in full. The bill for a cost-
recovery fee may also be made available electronically, by NMFS, via 
the Internet. As described above, all IFQ Allocation permit holders are 
responsible for submitting fees for all landings associated with their 
permanent allocation during the calendar year (not fishing year) for 
later submission to NMFS, to be compliant with section 304(d)(2)(B) of 
the Magnuson-Stevens Act. Unless otherwise specified below, if an IFQ 
Allocation permit holder does not pay his/her cost-recovery fee, or 
pays less than the full amount due, within 45 days of the date on the 
bill, his/her IFQ Allocation permit will not be renewed for the 
subsequent fishing year, and no transfers (permanent or temporary) will 
be approved by NMFS involving this IFQ.
    Disputes regarding fees will be resolved through an administrative 
appeal procedure. If, upon preliminary review of the accuracy and 
completeness of a fee payment, the RA determines the IFQ Allocation 
permit holder has not paid the amount due in full, NMFS will notify the 
IFQ Allocation permit holder by letter. NMFS will explain the 
discrepancy and the IFQ Allocation permit holder will have 30 days from 
the date of the letter to either pay the amount that NMFS has 
determined should be paid, or provide evidence that the amount paid was 
correct. The IFQ Allocation permit will not be renewed until the 
payment discrepancy is resolved. If the IFQ Allocation permit holder 
submits evidence in support of his/her payment, NMFS will evaluate it 
and, if there is any remaining disagreement as to the appropriate IFQ 
fee, prepare a Final Administrative Determination (FAD). A FAD will be 
the final decision of the Department of Commerce. If the FAD determines 
that the IFQ Allocation permit holder owes fees, no tilefish IFQ 
Allocation permit(s) held by the IFQ Allocation permit holder will be 
renewed until the required payment is received by NMFS. If NMFS does 
not receive such payment within the 30- day time period prescribed in 
the FAD, NMFS will refer the matter to the appropriate authorities 
within the U.S. Treasury for purposes of collection. If NMFS does not 
receive such payment prior to the end of the next cost-recovery billing 
period, the IFQ Allocation permit will be considered voluntarily 
relinquished, and not renewable. Cost-recovery payments will be 
required to be made electronically via the Federal Web portal, https://www.pay.gov, or other Internet sites as designated by the RA. 
Instructions for electronic payment will be made available on both the 
payment Web site and the paper bill. Electronic payment options will 
include payment via a credit card (the RA would specify in the cost-
recovery bill acceptable credit cards) or direct ACH (automated 
clearing house) withdrawal from a designated checking account. Payment 
by check could be authorized by the RA if the RA determines that 
electronic payment is not possible. NMFS will create an annual IFQ 
report and provide it to the owner of the IFQ Allocation permit. The 
report will include annual information regarding the amount and value 
of IFQ tilefish landed during the prior calendar year, the associated 
cost-recovery fees, and the status of those fees. This report will also 
detail the costs incurred by NMFS, including the calculation of the 
recoverable costs for the management, enforcement, and data collection 
and analysis, incurred by NMFS during the fishing year.
E. IFQ Allocation Acquisition Cap
    Amendment 1 limits the accumulation of IFQ allocation to 49 percent 
of the TAL allocated to the IFQ program (after adjustments for 
incidental catch, research set-aside, and/or overages have been made). 
This allows for an IFQ allocation accumulation that is 12-percent 
greater than the largest yearly landing by an individual tilefish 
vessel during the 1988 through 1998 period. This allocation cap also 
allows the two vessel owners that are anticipated to receive the 
largest initial allocation to consolidate. Thus, Amendment 1 prohibits 
any entity from owning, or holding an interest in, more than 49 percent 
of the tilefish IFQ TAL at any time. Having an interest in an IFQ 
allocation (permanent or temporary) is defined so as to include 
allocation held in the following ways: (1) In an IFQ allocation permit 
holder's name; (2) as a shareholder, officer, or partner of a company; 
(3) by an immediate family member; or (4) as an owner or a part owner 
of a company. Temporary and permanent IFQ transfers shall be monitored 
by NMFS to ensure that a transferee does not exceed this allocation 
acquisition limit at any point during a fishing year. A declaration of 
interest in IFQ allocation(s), listed by IFQ Allocation permit number, 
is required annually, at the time IFQ Allocation permits are renewed.
F. Periodic Review of the IFQ Program
    The Magnuson-Stevens Reauthorization Act established national 
guidelines for the implementation of a LAPP. The Magnuson-Stevens Act 
now includes provisions for the regular monitoring and review by the 
Council and the Secretary of the operations of the program, including 
determining progress in meeting the goals of the program. The Magnuson-
Stevens Act further requires a formal and detailed review within 5 
years of the implementation of the program and thereafter to coincide 
with scheduled Council review of the relevant fishery management plan 
(but no less frequently than once every 7 years). Amendment 1 
institutes a provision for regular review and evaluation of the 
performance of the IFQ program. The measures for review may include, 
but are not limited to: Capacity reduction; safety at sea issues; 
transferability rules; ownership concentration caps; permit and 
reporting requirements; and fee and cost-recovery issues. Other items 
may be added to address problems and/or concerns with the IFQ program 
that are unforeseeable at this time. The formal review shall be 
conducted by the Council.

Recreational Measures

A. Charter/Party Vessel Permit Requirements
    Amendment 1 requires that any owner of a party or charter vessel 
carrying fishermen for hire that fishes for tilefish within the U.S. 
EEZ obtain a valid Federal tilefish open access Charter/Party permit 
from NMFS. A private recreational vessel, other than a party or charter 
vessel (vessel for hire) fishing in the EEZ, is exempt from this 
permitting requirement; however, it cannot land more than the 
recreational tilefish landing limit (see Item B below), multiplied by 
the number of persons on board, per trip. A charter/party vessel could 
have both a Federal Charter/Party permit and a commercial permit to 
catch and sell tilefish under an IFQ Allocation permit. However, such a 
vessel could not fish under the IFQ Allocation permit if it is carrying 
passengers for a fee. Amendment 1 requires that Federal Charter/Party 
permitted vessels report tilefish landings on NMFS-issued Fishing 
Vessel Trip Report (VTR) forms. The collection of this information will 
provide valuable data to determine the

[[Page 42585]]

number of vessels and level of activity in the recreational tilefish 
fishery.
B. Recreational Bag Limits
    Amendment 1 institutes a recreational landing limit of eight 
tilefish per person per trip. NMFS VTR data between 1996 and 2005 
indicate that recreational tilefish landings by charter/party vessels 
have ranged from 81 to 994 tilefish per year. Mean angler catches 
onboard charter/party vessels have ranged from approximately one fish 
per angler, in most years, to eight fish per angler. Therefore, the 
recreational bag limit of eight tilefish per person per trip is at the 
upper range of the mean effort seen in the last 10 years.

EFH Measures

A. EFH Designations
    Amendment 1 modifies the current EFH designations based on the 
incorporation of new information and a re-examination of information 
that was used to develop the original EFH descriptions in the FMP. The 
new designations rely on temperature and sediment type as a stronger 
indicator of EFH for tilefish, with depth as a secondary correlate. The 
depth that corresponds to the revised temperature profile is between 
100 and 300 m. Specific locations and maps for the new proposed EFH 
designation can be found in Amendment 1.
B. HAPC
    Amendment 1 designates HAPC for juvenile and adult tilefish as clay 
outcrop/pueblo village habitats within Norfolk, Veatch, Lydonia, and 
Oceanographer Canyons at the depth range specified for tilefish EFH 
(100-300 m). Amendment 1 contains locations and maps that depict these 
areas.
C. Gear Restricted Areas (GRAs)
    The Magnuson-Stevens Act requires that Councils evaluate potential 
adverse effects of fishing activities on EFH and include in FMPs 
management measures necessary to minimize adverse effects to the extent 
practicable. Specifically for tilefish, clay outcroppings (pueblo 
habitats) have been determined to be highly vulnerable to permanent 
disturbance by bottom-tending mobile gear such as the bottom otter 
trawl, as described in Amendment 1. Therefore, several GRAs are 
approved to minimize impacts on juvenile and adult tilefish EFH from 
bottom trawling activity. These closed areas do not follow the depth 
contours exactly, but are designed as polygonal areas that approximate 
the areas and depths described, while allowing for straight boundaries 
for enforcement purposes. In addition, because these areas are closed 
polygons, any areas within those GRAs that are deeper than the maximum 
depth that defines tilefish EFH are also closed to bottom trawling 
activity, even though they are not defined as EFH. Amendment 1 
prohibits bottom trawling, within and adjacent to the four Canyons 
identified as HAPC, at depths associated with the revised EFH 
designation. These GRAs were considered because of the potential for 
current or future bottom otter trawling activity to impact clay 
outcroppings within these canyon areas. Three Canyons--Norfolk, Veatch, 
and Lydonia--are known to have tilefish ``pueblo burrows'' that are 
formed in exposed clay outcroppings. In addition, clay outcroppings are 
known to exist in Oceanographer Canyon. The GRA closures are bounded by 
the coordinates listed below.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                N. Lat.                                        W. Long.
                  Canyon                   -----------------------------------------------------------------------------------------------
                                                Degrees           Min           Seconds         Degrees           Min           Seconds
------------------------------------------------------------------------------------------------------------------------------------------
Oceanographer.............................            40.0            29.0            50.0            68.0            10.0            30.0
                                                      40.0            29.0            30.0            68.0             8.0            34.8
                                                      40.0            25.0            51.6            68.0             6.0            36.0
                                                      40.0            22.0            22.8            68.0             6.0            50.4
                                                      40.0            19.0            40.8            68.0             4.0            48.0
                                                      40.0            19.0             5.0            68.0             2.0            19.0
                                                      40.0            16.0            41.0            68.0             1.0            16.0
                                                      40.0            14.0            28.0            68.0            11.0            28.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lydonia...................................            40.0            31.0            55.2            67.0            43.0             1.2
                                                      40.0            28.0            52.0            67.0            38.0            43.0
                                                      40.0            21.0            39.6            67.0            37.0             4.8
                                                      40.0            21.0             4.0            67.0            43.0             1.0
                                                      40.0            26.0            32.0            67.0            40.0            57.0
                                                      40.0            28.0            31.0            67.0            43.0             0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Veatch....................................            40.0             0.0            40.0            69.0            37.0             8.0
                                                      40.0             0.0            41.0            69.0            35.0            25.0
                                                      39.0            54.0            43.0            69.0            33.0            54.0
                                                      39.0            54.0            43.0            69.0            40.0            52.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Norfolk...................................            37.0             5.0            50.0            74.0            45.0            34.0
                                                      37.0             6.0            58.0            74.0            40.0            48.0
                                                      37.0             4.0            31.0            74.0            37.0            46.0
                                                      37.0             4.0             1.0            74.0            33.0            50.0
                                                      36.0            58.0            37.0            74.0            36.0            58.0
                                                      37.0             4.0            26.0            74.0            41.0             2.0
--------------------------------------------------------------------------------------------------------------------------------------------------------

Other Measures

A. Frameworkable Measures
    Amendment 1 requires additional management measures to be 
identified in the FMP that could be implemented or adjusted at any time 
during the year through the framework adjustment process. The 
recreational management measures that are added to the list are: (1) 
Recreational bag limit; (2) fish size limit; (3) seasons; and (4) gear 
restrictions or prohibitions. The additional measures that would 
facilitate the periodic review of the IFQ program are: (1) Capacity 
reduction; (2) safety at sea issues; (3) transferability rules; (4) 
ownership concentration caps;

[[Page 42586]]

(5) permit and reporting requirements; and (6) fee and cost-recovery 
issues. Adding these measures to the list of measures that could be 
addressed via the framework adjustment process will provide flexibility 
to managers to address potential changes in the fishery in a timely 
manner.
B. Submission of Catch Reports
    The description of this measure is slightly revised from the 
proposed rule to clarify the intent of the reporting changes. The 
current FMP requires that the owner or operator of any vessel issued a 
limited access permit for tilefish submit a tilefish catch report, via 
the IVR system, within 24 hr after returning to port and offloading. 
Amendment 1 eases this requirement to require that tilefish catch 
reports be submitted via the IVR within 48 hr after offloading. This 
allows for tilefish fishermen to report catch via the IVR after the 
fish have been weighed by the dealer to allow for a more accurate 
report of landings via IVR. This alternative is expected to allow 
fishermen to provide better data. Amendment 1 also requires that the 
VTR serial number be inputted into the IVR system in order for this to 
be used as a trip identifier to match all reported IVR landings to 
dealer reports. In addition, the dealer number is required to be 
inputted into the IVR system, which will allow for better matching of 
IVR data to dealer (weighout) data on a trip-by-trip basis. These 
reporting changes will ensure that amounts of tilefish landed, and ex-
vessel prices, are properly recorded for quota monitoring purposes and 
the calculation of IFQ fees, respectively, and will ensure an accurate 
association of tilefish landings with IFQ Allocations.
C. No Discard Provision
    Amendment 1 prohibits any commercial vessel from discarding 
tilefish. The description of this measure in this final rule is revised 
to exclude vessels from this prohibition if they are fishing pursuant 
to the incidental catch limit, or under an LOA trip limit, if one is 
instituted by the RA. This is intended to prohibit the practice of 
highgrading, whereby low-value tilefish are discarded so that higher-
value tilefish may be retained. Current NMFS data show that commercial 
discard of tilefish is almost non-existent. Therefore, this is an 
opportune time to prohibit commercial discards.
D. Monitoring of Tilefish Commercial Landings
    The management unit for this FMP is defined as all golden tilefish 
under U.S. jurisdiction in the Atlantic Ocean north of the Virginia/
North Carolina border. Tilefish south of the Virginia/North Carolina 
border are currently managed as part of the FMP for the Snapper-Grouper 
Fishery managed by the South Atlantic Fishery Management Council. 
Currently, the FMP does not restrict fishermen that hold both a Federal 
Northeast tilefish permit and a Southeast Federal snapper/grouper 
permit, to fish for tilefish both inside and outside of the TMU, as 
defined in Sec.  648.2, on the same trip. If tilefish landings are not 
properly reported to indicate where each species is caught, the 
recovery of the stock could be adversely affected. To avoid these 
reporting problems, Amendment 1 requires vessels that catch tilefish 
from the TMU to land tilefish within the TMU only, and prohibits 
combination trips in which vessels fish both inside and outside the TMU 
for golden tilefish on the same trip. Furthermore, Amendment 1 
prohibits dealers from purchasing or otherwise receiving for commercial 
purposes tilefish caught in the EEZ from outside of the TMU, as 
described in Sec.  648.2, unless otherwise permitted under 50 CFR part 
622. These new requirements ensure that all tilefish landings are 
reported in the appropriate management unit.
E. Overages
    Under Amendment 1, an IFQ allocation that is exceeded will be 
reduced by the amount of the overage in the subsequent fishing year. If 
an IFQ allocation overage is not deducted from the appropriate 
allocation before the IFQ Allocation permit is issued for the 
subsequent fishing year, a revised IFQ Allocation permit reflecting the 
deduction of the overage shall be issued by NMFS. If the allocation 
cannot be reduced in the subsequent fishing year because the full 
allocation had already been landed or transferred, the IFQ Allocation 
permit would indicate a reduced allocation for the amount of the 
overage in the next fishing year. If quota is temporarily transferred 
and the lessee exceeds a permit holder's temporary IFQ allocation, the 
overage would be deducted from the allocation of the permanent IFQ 
Allocation permit holder who leased the IFQ allocation.

Comments and Reponses

    A total of 16 relevant comment letters were received from limited 
access tilefish vessel owners, an attorney representing industry, non-
government environmental organizations, captain and crew, and other 
interested members of the public on Amendment 1 and the proposed rule. 
One comment letter was received that is not legible or relevant. A 
comment letter that was received from a non-government environmental 
organization was only partly relevant to the approved measures 
contained within Amendment 1; only the relevant comments will be 
addressed below.

General Comments

    Comment 1: Three comments supported Amendment 1, based on the 
qualification time period chosen by the Council. One of these 
commenters stated that this time period was fair and equitable for all 
participants and that individuals that are in opposition to the 
qualification time period, and who have fished since 2005, are 
primarily motivated to obtain IFQ allocation for financial gain. This 
commenter stated that the preferred alternative rewards individuals 
that fish for tilefish for 100 percent of their income.
    Response: The adoption of any LAPP has the potential to benefit 
certain fishermen, while disadvantaging others. The Council analyzed 
the positive and negative consequences of its decisions, and in 
Amendment 1 it chose to allocate the initial tilefish IFQ in a manner 
that emphasizes recent participation in the tilefish fishery as opposed 
to historical participation. The Council has the latitude to weigh 
these allocation decisions, so long as they are justified with 
sufficient analysis. NMFS had determined that the Council properly 
analyzed and justified the allocation alternatives in Amendment 1.
    Comment 2: Eight commenters opposed Amendment 1, due to the 
Council's decision to base the qualification period on landings from 
2001 to 2005. Some of these commenters stated that the tilefish stock 
was in a rebuilding plan during this time period, and that it was not 
appropriate to fish for tilefish during this time. These industry 
members stated that they voluntarily ceased tilefish fishing during 
this time frame, in part, to lessen fishing pressure on the overfished 
tilefish stock. These commenters were highly critical of the Council's 
decision to ``reward'' those who fished during this time period. 
Instead they believe that the initial IFQ allocation should be 
distributed to those with historic participation in the fishery. One of 
the commenters specifically noted that the Barnegat Light, NJ, tilefish 
fleet reduced fishing effort between 2000 and 2005, while the Montauk, 
NY, tilefish fleet did not, and that the Montauk Port, NY, fleet stands 
to receive a monopoly of tilefish permits under Amendment 1. Another 
commenter stated that vessels in Montauk, NY, stand to receive 80

[[Page 42587]]

percent of the IFQ allocation under Amendment 1, and that the 
allocation should have been divided up more equitably. Finally, one 
commenter noted that, in using the 2001-2005 time period to qualify IFQ 
allocations, Amendment 1 would allocate significantly more quota to the 
Part-time vessels than to a specific vessel in the Full-time tier 2 
category.
    Response: The adoption of any LAPP has the potential to benefit 
certain fishermen, while disadvantaging others. This effect is 
recognized in the National Standard 4 guidance in Sec.  
600.325(c)(3)(i)(B). The Council analyzed the positive and negative 
consequences of its decisions and chose to allocate the initial 
tilefish IFQ in a manner that emphasizes more recent participation in 
the tilefish fishery as opposed to more historical participation. As 
noted in section 303A(c)(5) of the Magnuson-Stevens Act, factors such 
as current and historic participation need only be ``considered.'' 
There is no requirement that a Council has to provide for historical 
participants. The Council has considered both current and historical 
participants in the tilefish fishery in determining the allocation 
scheme. The Council has the latitude to weigh these allocation 
decisions, so long as they are justified with sufficient analysis. In 
response to the commenter who asserted that the Montauk, NY, tilefish 
fleet would gain a monopoly of not only the Full-time, but the Part-
time permits, NMFS will qualify individuals for IFQ allocations based 
on the approved measures contained in this final rule. At this time, 
NMFS has not made a determination as to the specific individuals that 
will qualify for an IFQ Allocation permit; however, according to the 
analysis contained in Amendment 1, and NMFS's permit records, the 
majority of the Part-time limited access permits that may qualify for 
an IFQ Allocation permit are held by vessels that are ported in 
Barnegat Light, NJ. NMFS approved Amendment 1 because the Council's 
analysis was consistent with the Magnuson-Stevens Act, and other 
applicable law, and the action promotes a sustainable tilefish fishery.
    Comment 3: Four individuals commented that a Council member 
involved in the development of Amendment 1 made biased decisions based 
on personal gain or agenda.
    Response: There is no evidence to support bias of a Council member 
in the development of Amendment 1. The Amendment was adopted by a 
majority of all Council members present. The Council's decisions were 
based on numerous meetings, open to the public, and on information, 
comments, and input provided by the public.
    Comment 4: One commenter stated that the IFQ allocation will be 
distributed in a manner that would give a few individuals the power to 
completely control the market for tilefish.
    Response: Amendment 1 sets an individual allocation accumulation 
limit at 49 percent of the TAL (adjusted). In setting this limit, the 
Council considered the potential market power impact that an individual 
entity could have when accumulating tilefish IFQ allocation, and 
considered the historical fishing practices in the fishery. Due to the 
large number of substitutes for tilefish that are available in the 
marketplace, the Council does not expect that any level of IFQ 
ownership in the tilefish fishery would allow a single harvester to 
control the market price for tilefish.
    Comment 5: One comment stated that the Council should have 
allocated the IFQ to the captain and crew of tilefish vessels that 
landed tilefish during the qualification period, or the Council should 
not have adopted an IFQ program in Amendment 1.
    Response: The Council did not consider allocating the initial 
tilefish IFQ to captains and/or crewmembers in the tilefish fishery. 
The landings history of a vessel is owned by the owner of record of the 
vessel. For example, the landings and permit history of a vessel is 
presumed to transfer with the vessel whenever it is sold by the owner. 
Therefore, the captain and crewmembers of a vessel could not qualify 
for an IFQ allocation unless the Council chose qualification criteria 
that were not associated with vessel landings. The Council could have 
chosen to allocate the IFQ in any manner that was consistent with the 
Magnuson-Stevens Act. The Council did consider alternatives that would 
have limited the universe of entities that could receive IFQ allocation 
through transfer and lease to include established captains and crew. 
These alternatives were not selected due to the difficulty in 
determining what constitutes an established fisherman. Due to the 
complexities involved in determining what constitutes an established 
fishermen, the Council determined that the administrative burden to 
NMFS would be prohibitively high, as there is currently no similar 
program that verifies identities and work histories.
    Comment 6: One comment, in opposition to Amendment 1, asserted that 
``ITQs [IFQs] are forever.'' Another comment from a non-government 
environmental organization contended that the IFQ program would 
privatize valuable public resources in perpetuity.
    Response: As stated in Amendment 1, IFQ privileges would be 
assigned for the duration of the IFQ program. The IFQ program would 
remain in effect until it is modified or terminated. The program may be 
modified after going through an administrative review of the operation 
of the program. As indicated in the approved measures, the Magnuson-
Stevens Act requires a formal program review 5 years after the 
implementation of the program and thereafter to coincide with scheduled 
Council review of the relevant FMP. The IFQ allocations are not granted 
in perpetuity. According to the Magnuson-Stevens Act, a limited access 
privilege is a permit issued for a period of not more than 10 years. 
The permit can be renewed before the end of that period, unless it has 
been revoked, limited, or modified as provided by the Magnuson-Stevens 
Act (section 303A(c)(7)(f)). Further, the Council has the discretion to 
revise or replace the IFQ program if it determines that a different 
management strategy better suits the objectives and the provisions of 
the Magnuson-Stevens Act.
    Comment 7: One commenter asked to have his support removed for the 
approved measure that will distribute the Part-time limited access 
permit category quota equally. He asked that his support be shifted to 
the alternative within Amendment 1 that would have allocated the Part-
time permit category quota based on the average landings by Part-time 
limited access vessels during the qualification period. The commenter 
stated that he did not properly anticipate the financial impact on his 
business that would result from the adopted measure, and that he will 
suffer a disproportionate drop in income.
    Response: The Council's decisions were based on numerous meetings, 
open to the public and on information, comments, and input provided by 
the public. Voting on a prospective management program is not a 
referendum. NMFS approved Amendment 1 because it is consistent with the 
Magnuson-Stevens Act and promotes a sustainable tilefish fishery.
    Comment 8: A commenter stated that, due to the present state of the 
economy, Amendment 1 is not appropriate at this time, as it will result 
in a loss of income for individuals that do not qualify for an initial 
IFQ Allocation permit.
    Response: As stated in the response to Comment 1, the adoption of 
any LAPP has the potential to benefit certain fishermen, while 
disadvantaging others. The Council analyzed the positive and negative 
consequences of its decisions and chose to allocate the initial 
tilefish

[[Page 42588]]

IFQ in a manner that emphasizes more recent participation in the 
tilefish fishery as opposed to more historical participation. The 
Council has the latitude to weigh these allocation decisions, so long 
as it conducts the proper analyses and justifies them.
    Comment 9: Two commenters asked, if the Council wanted to use the 
most recent timeframe for determining landings that qualify an 
individual for an IFQ allocation, why did they not use 2006 through 
2009 landings.
    Response: The process of developing a fishery management plan is 
long and dynamic. As the program is being developed, adapted, and 
implemented, new data are becoming available. There is no obligation on 
the part of the Council to continually update the information to be 
used in the development of a program. Otherwise, the program could 
never be finalized. It is only when new information indicates drastic 
changes in the fishery that it needs to be incorporated into the 
program. The Council identified no such changes represented by the 2006 
through 2009 landings data.
    Comment 10: An attorney representing an industry group (attorney) 
contended that the qualification time period chosen in Amendment 1 will 
disadvantage vessels that are ported in Barnegat Light, NJ, relative to 
vessels that are ported in Montauk, NY. The attorney, and a non-
governmental environmental organization, requested that NMFS disapprove 
the portions of Amendment 1 that implement the IFQ program as they are 
inconsistent with the Magnuson-Stevens Act in that the IFQ program is 
neither fair nor equitable, as required under National Standard 4 
(section 301(a)(4)), section 303(b)(6), and section 303A(c)(5) of the 
Magunson-Stevens Act.
    Response: National Standard 4 and sections 303(b)(6) and 303A(c)(5) 
of the Magnuson-Stevens Act require that the purpose for, reasoning of, 
and consideration of management measures be fair and equitably applied 
to all fishermen, not that the outcome, result, or affects of the 
management measures be fair and equitable to all such fishermen. As 
noted in section 303A(c)(5) of the Magnuson-Stevens Act, factors such 
as current and historic participation need only be ``considered.'' 
There is no requirement that a Council has to provide for historical 
participants. The Council has considered both current and historical 
participants in the tilefish fishery in determining the allocation 
scheme. The adoption of any limited access privilege program has the 
potential to benefit certain fishermen, while disadvantaging others. 
The Council analyzed the positive and negative consequences of its 
decisions, and in Amendment 1 it chose to allocate the initial tilefish 
IFQ in a manner that emphasizes more recent participation in the 
tilefish fishery as opposed to more historic participation. The 
National Standard 4 guidelines at Sec.  600.325(c)(3)(i)(B) state that:

    An allocation of fishing privileges may impose a hardship on one 
group if it is outweighed by the total benefits received by another 
group or groups. An allocation need not preserve the status quo in 
the fishery to qualify as fair and equitable, if a restructuring of 
fishing privileges would maximize overall benefits. The Council 
should make an initial estimate of the relative benefits and 
hardships imposed by the allocation, and compare its consequences 
with those of alternative allocation schemes, including the status 
quo.

    Therefore, the Councils are given wide latitude to determine what 
is equitable within a particular fishery and to create the appropriate 
management measures to accomplish the goals of a FMP.
    Comment 11: The attorney commented that the Council did not provide 
adequate rationale for its decision to disregard the language contained 
in the original Tilefish FMP that stated that any future tilefish 
amendments would only include a formal qualification based on 1984 to 
1998 landings data.
    Response: Fishery Management Councils make recommendations to the 
Secretary, which are advisory only. The actions of a particular Council 
do not constitute prior practice from which it cannot deviate without 
sufficient rationale. It is solely within the prescription of the 
Secretary to approve, disapprove, or partially approve the 
recommendation of a Council.
    Comment 12: The attorney, and a non-governmental environmental 
organization, commented that the IFQ program results in excessive 
geographic consolidation, as prohibited by section 303A(c)(5)(B)(ii) of 
the Magnuson-Stevens Act, and results in affects to fishing communities 
that are inconsistent with National Standard 8 (section 301(a)(8)) of 
the Magnuson-Stevens Act.
    Response: NMFS determined that the approved measures in Amendment 1 
are consistent with National Standard 8 of the Magnuson-Stevens Act, 
and that Amendment 1 does not result in excessive geographic 
consolidation. Excessive geographic consolidation need only be 
considered in looking at the basic cultural and social framework in the 
fishery. The approved measures in Amendment 1 distribute IFQ allocation 
proportionately among those qualifying individuals who have 
historically or who currently participate in the tilefish fishery, 
regardless of the location of their principle port of landing or home 
state. The IFQ qualification criteria do not differentiate among U.S. 
citizens, nationals, resident aliens, or corporations based on their 
State of residence, or incorporation, and they do not rely on a statute 
or regulation that discriminates against residents of another State. 
The Amendment 1 document fully analyzes the effects of the IFQ program 
on fishing communities, port structure, employment, income, and other 
socio-economic variables. Amendment 1 considered whether the management 
measures would create an excessive geographic consolidation in the 
fishery. The analysis within section 6.5.1 of Amendment 1 concluded 
that the total value of all tilefish landings in Barnegat Light, NJ, 
during 2000-2005, represented only 2.1 percent of all species landed, 
and that the majority of the commercial tilefish quota was landed in 
Montauk, NY. In addition, during this time period, 11 percent of the 
total commercial tilefish landing value was associated with landings in 
Barnegat Light, NJ. The adopted measure will allocate the Part-time 
category equally among all vessels that meet the qualification 
criteria, and the majority of the vessels within the Part-time category 
are currently ported in Barnegat Light, NJ. The Council analyzed the 
positive and negative consequences of its decisions, and in Amendment 1 
it chose to allocate the initial tilefish IFQ in a manner that 
emphasizes recent participation in the tilefish fishery, as opposed to 
historic participation. The attorney commented that, under Amendment 1, 
``66 percent of the fishery would end up in Montauk, NY.'' This comment 
is consistent with the current port/landings structure of the tilefish 
fleet. Currently, all of the vessels permitted in the Full-time tier 1 
category are ported in Montauk, NY. This category has received 66 
percent of the tilefish commercial adjusted TAL annually since the 
inception of the original Tilefish FMP in FY 2001. In addition, under 
Amendment 1, the current Part-time category will initially be allocated 
19 percent of the adjusted TAL. Although the commenter is correct that 
the vessels that have not fished recently and/or did not fish during 
the 2001-2005 time period in the Part-time category will not qualify 
for an IFQ allocation under this final rule, the

[[Page 42589]]

majority of the active permits would qualify for an equal share of 19 
percent of the adjusted TAL. As stated in the Amendment 1 document, 
disenfranchisement of the inactive vessels is an unquantifiable impact, 
as it is difficult to quantify the impact of removing a tilefish 
limited access permit from an individual who does not fish for 
tilefish. Therefore, for these reasons and the rationale contained in 
the Amendment 1 document, NMFS has determined that Amendment 1 would 
not result in excessive geographic consolidation of the tilefish 
fishery. The Council's analysis within Amendment 1 is compliant with 
National Standard 8, and section 303A(c)(5)(B)(ii) of the Magnuson-
Stevens Act, as it considered the importance of fishery resources to 
fishing communities. In addition, whil