Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States, 68710-68713 [E9-30838]
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Federal Register / Vol. 74, No. 248 / Tuesday, December 29, 2009 / Rules and Regulations
catches in the particular category for
biological sampling and monitoring of
the status of the stock; the catches of the
particular category quota to date and the
likelihood of closure of that segment of
the fishery if no adjustment is made; the
projected ability of the vessels fishing
under the particular category quota to
harvest the additional amount of BFT
before the end of the fishing year; the
estimated amounts by which quotas for
other gear categories of the fishery might
be exceeded; effects of the adjustment
on BFT rebuilding and overfishing;
effects of the adjustment on
accomplishing the objectives of the
fishery management plan; variations in
seasonal distribution, abundance, or
migration patterns of BFT; effects of
catch rates in one area precluding
vessels in another area from having a
reasonable opportunity to harvest a
portion of the category’s quota; and a
review of dealer reports, daily landing
trends, and the availability of the BFT
on the fishing grounds.
NMFS has considered the set of
criteria cited above and their
applicability to the General category
BFT retention limit for the January 2010
General category fishery. For example,
under the 2-fish limit that applied in
January 2009, January landings were
very close to the base subquota of 25.2
mt, later adjusted in the final 2009
specifications to 33 mt. Under the
proposed 2010 BFT quota
specifications, the adjusted January
2010 January subquota would be 28.6
mt. Based on these considerations,
NMFS has determined that the General
category retention limit should be
adjusted to allow for retention of the
anticipated 2010 General category
quota, and that the same approach used
for January 2009 is warranted.
Therefore, NMFS increases the General
category retention limit from the default
limit to two large medium or giant BFT,
measuring 73 inches CFL or greater, per
vessel per day/trip, effective January 1,
2010, through January 31, 2010.
Regardless of the duration of a fishing
trip, the daily retention limit applies
upon landing. For example, whether a
vessel fishing under the General
category limit takes a two-day trip or
makes two trips in one day, the daily
limit of two fish may not be exceeded
upon landing. This General category
retention limit is effective in all areas,
except for the Gulf of Mexico, and
applies to those vessels permitted in the
General category as well as to those
HMS Charter/Headboat permitted
vessels fishing commercially for BFT.
This adjustment is intended to
provide a reasonable opportunity to
harvest the U.S. quota of BFT without
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exceeding it, while maintaining an
equitable distribution of fishing
opportunities, to help achieve optimum
yield in the General category BFT
fishery, to collect a broad range of data
for stock monitoring purposes, and to be
consistent with the objectives of the
Consolidated HMS FMP.
Monitoring and Reporting
NMFS selected the daily retention
limit for January 2010 after examining
an array of data as it pertains to the
determination criteria. These data
included, but were not limited to,
current and previous catch and effort
rates, quota availability, previous public
comments on inseason management
measures, stock status, etc. NMFS will
continue to monitor the BFT fishery
closely through the mandatory dealer
landing reports, which NMFS requires
to be submitted within 24 hours of a
dealer receiving BFT. Depending on the
level of fishing effort and catch rates of
BFT, NMFS may determine that
additional retention limit adjustments
are necessary to ensure available quota
is not exceeded or to enhance scientific
data collection from, and fishing
opportunities in, all geographic areas.
Closures or subsequent adjustments to
the daily retention limits, if any, will be
published in the Federal Register. In
addition, fishermen may call the
Atlantic Tunas Information Line at (888)
872–8862 or (978) 281–9260, or access
the internet at https://
www.hmspermits.gov, for updates on
quota monitoring and retention limit
adjustments.
Classification
The Assistant Administrator for
NMFS (AA), finds that it is
impracticable and contrary to the public
interest to provide prior notice of, and
an opportunity for public comment on,
this action for the following reasons:
The regulations implementing the
Consolidated HMS FMP provide for
inseason retention limit adjustments to
respond to the unpredictable nature of
BFT availability on the fishing grounds,
the migratory nature of this species, and
the regional variations in the BFT
fishery. Affording prior notice and
opportunity for public comment to
implement these retention limits is
impracticable as it would preclude
NMFS from acting promptly to allow
harvest of BFT that are available on the
fishing grounds. Analysis of available
data shows that the General category
BFT retention limits may be increased
with minimal risks of exceeding the
ICCAT-allocated quota.
Delays in increasing these retention
limits would adversely affect those
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General and Charter/Headboat category
vessels that would otherwise have an
opportunity to harvest more than the
default retention limit of one BFT per
day and may exacerbate the problem of
low catch rates and quota rollovers.
Limited opportunities to harvest the
respective quotas may have negative
social and economic impacts for U.S.
fishermen that depend upon catching
the available quota within the time
periods designated in the Consolidated
HMS FMP. Adjustment of the retention
limit needs to be effective January 1,
2010, to minimize any unnecessary
disruption in fishing patterns and for
the impacted sectors to benefit from the
adjustments so as to not preclude
fishing opportunities for fishermen who
have access to the fishery only during
this time period.
Therefore, the AA finds good cause
under 5 U.S.C. 553(b)(B) to waive prior
notice and the opportunity for public
comment. For all of the above reasons,
and because this action relieves a
restriction (i.e., the default General
category retention limit is one fish per
vessel/trip whereas this action increases
that limit and allows retention of
additional fish), there is also good cause
under 5 U.S.C. 553(d) to waive the 30day delay in effectiveness.
This action is being taken under 50
CFR 635.23(a)(4) and (b)(3) and is
exempt from review under Executive
Order 12866.
Authority: 16 U.S.C. 971 et seq. and 1801
et seq.
Dated: December 18, 2009.
Alan Risenhoover,
Director, Office of Sustainable Fisheries,
National Marine Fisheries Service.
[FR Doc. E9–30843 Filed 12–28–09; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 0909011267–91427–02]
RIN 0648–AY19
Magnuson-Stevens Fishery
Conservation and Management Act
Provisions; Fisheries of the
Northeastern United States
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
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Federal Register / Vol. 74, No. 248 / Tuesday, December 29, 2009 / Rules and Regulations
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SUMMARY: NMFS is modifying the
fishing vessel permit regulations to
include specific terms and conditions
for Federal fishing vessel permits
obtained through the purchase of fishing
vessels using Federal grant awards. The
terms and conditions authorize the
NMFS Administrator, Northeast Region
(Regional Administrator), to suspend,
cancel, fail to renew, modify, or
otherwise rescind any Federal fishing
vessel permit, or the rights thereto, if the
terms and conditions of any Federal
grant award used to obtain said permit,
or an associated memorandum of
understanding or agreement, are
violated by the grant recipient.
DATES: This final rule is effective on
January 28, 2010.
ADDRESSES: Copies of the Regulatory
Impact Review (RIR) are available upon
request from Patricia A. Kurkul,
Regional Administrator, NMFS,
Northeast Regional Office, 55 Great
Republic Drive, Gloucester, MA 01930.
FOR FURTHER INFORMATION CONTACT:
Michael Pentony, Senior Fishery Policy
Analyst, phone (978) 281–9283.
SUPPLEMENTARY INFORMATION:
Background
This final rule implements changes to
the Northeast (NE) fisheries regulations
at 50 CFR part 648 to authorize the
Regional Administrator to suspend,
cancel, fail to renew, modify, or
otherwise rescind any Federal fishing
vessel permit, including the rights
thereto, held by a person, corporation,
non-profit organization, or government
entity if the terms and conditions of any
Federal grant award used to obtain said
permit, or an associated memorandum
of understanding or agreement, are
violated by the grant recipient. The
intent of this action is to establish an
effective regulatory mechanism through
which NOAA will be able to enforce the
terms and conditions of any Federal
grant award used to obtain Federal
fishing vessel permits in the NE Region.
As several fisheries in the NE Region
begin to transition to catch-share
management strategies, various fishing
organizations, conservations groups,
and states are exploring alternatives to
the traditional vessel-permit ownership
model. An alternative model known as
‘‘permit banking’’ is developing in the
Northeast, whereby an organization
obtains a suite of permits in a particular
fishery, with the option to lease out the
fishing rights associated with those
permits.
Permit banks hold promise for
addressing two important issues related
to the development and implementation
of effective catch-share management
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programs: First, permit banks could be
used to ease the transition to catch-share
management by expanding the pool of
catch shares available for use; and,
second, permit banks could be used to
demonstrate that small fishing
operations and small communities can
be successful participants in catch-share
management programs. Depending on
the structure of the permit bank, and the
criteria used for participation, permit
banks could be very effective at
protecting the fishing interests of small
communities and small-scale fishing
operations by mitigating some of the
consolidation of fishing rights that often
follows implementation of catch-share
programs.
Interest in developing permit banking
programs is expanding in the NE and,
because of NOAA’s policy position
promoting catch-share management, the
NMFS NE Regional Office has proposed
a pilot program designed to guide the
development and expansion of permit
banks in order to facilitate the
implementation of effective catch-share
programs. In the spending plan for a
recent Congressional authorization for
New England fisheries assistance,
NOAA proposed to award a $1–million
grant to develop this pilot permit
banking program in Maine. Since then,
NMFS has been working in partnership
with Maine’s Department of Marine
Resources on a program that would
allow the State to use the grant award
to purchase fishing vessels with
associated permits. The fishing rights
associated with the permits would then
serve as the basis for a permit bank to
be operated by the State, in partnership
with NMFS, to facilitate the transition to
catch-share management by leasing
additional fishing opportunities to
qualified vessel owners in small ports.
The State of Maine is very interested in
developing such a partnership and
establishing a permit bank. If the pilot
program proves successful, NOAA may
consider expanding the program
throughout other parts of the NE Region.
Absent this regulatory change, NOAA
would not be able to retain sufficient
control and oversight of the resulting
permit banking program to ensure its
success. Under current grant
management rules and fishing vessel
permit regulations, once a grant award
is made to an organization, and the
award is used to obtain fishing vessel
permits, NOAA risks losing control over
the implementation and operation of the
resulting permit bank. Even if the grant
includes special award conditions
specifying the criteria to be used in
operation of the permit bank, NOAA
would have limited mechanisms to
enforce those criteria once an
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68711
organization obtains the permits. In
order to protect NOAA’s and the
public’s interests in the successful
development, implementation, and
operation of such a program, this
regulatory change is necessary to
provide NOAA with an appropriate
oversight mechanism.
This action amends the NMFS NE
Region regulations regarding fishing
vessel permits to include specific terms
and conditions that will apply to
Federal fishing vessel permits obtained
through the purchase of fishing vessels
using Federal grant awards. The terms
and conditions authorize the Regional
Administrator to suspend, cancel, fail to
renew, modify, or otherwise rescind any
Federal fishing vessel permit, including
the rights thereto, held by a person,
corporation, non-profit organization, or
government entity if the terms and
conditions of any Federal grant award
used to obtain said permit, or an
associated memorandum of
understanding or agreement, are
violated by the grant recipient.
In addition, this final rule responds to
three issues raised in the comments
received on the proposed rule for this
action. First, NMFS’s intent is for this
action to apply only to Federal grants
issued by NOAA for the express
purpose of purchasing fishing vessels,
obtaining fishing vessel permits, and/or
establishing or expanding a permit
bank, and this action would not apply
to permits obtained through grants of a
more general nature or those awarded
by other Federal agencies. Second, the
new regulation implemented by this
final rule is intended to provide an
oversight mechanism for vessel permitrelated grants that supplements but does
not replace, supersede, or contravene
existing enforcement provisions and
procedures established under
Department of Commerce regulations at
15 CFR parts 14 and 24. Third, it is
NMFS’s intent that any such controls
applied to a permit bank as authorized
by this action would be imposed either
at the time of an application for a permit
lease transaction or at the time of permit
renewal, and it is not NMFS’s intent for
such permit sanctions to affect the
intended recipients of the permit lease
transactions.
Comments and Responses
Nine individual comment letters were
received on the proposed rule.
Comment 1: One commenter objected
to the suggestion that a potential pilot
permit bank with the State of Maine
may be limited to qualified vessels in
small ports, and took issue with
statements in the preamble to the
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proposed rule regarding potential
benefits of permit banks.
Response: NMFS understands that
some stakeholders may object to some of
the terms and conditions that may be
placed on Federal grant awards used to
obtain fishing vessel permits for the
purpose of establishing one or more
permit banks. However, nothing in this
action imposes or constrains any future
actions with respect to the specific
terms and conditions that may be
imposed on a state, or other party,
regarding a Federal grant award that
may be used to establish a permit bank.
This action is wholly constrained to
establishing an effective oversight
mechanism such that NOAA, should it
at some future time provide a Federal
grant award to a state, or other party, for
the purpose of obtaining one or more
fishing vessels and the associated
Federal permits, as a means to retain
some level of oversight and control over
how the fishing rights associated with
the permits are used, beyond the
duration of the Federal grant award.
Regarding the perceived implications of
permit banks for the affected public,
NMFS considers permit banks as one
potential tool to ease the transition to
catch-share management programs and
as a potential way to preserve fishing
opportunities for small fishing
operations and/or small fishing
communities so that they can
participate effectively in catch-share
management programs. However, NMFS
acknowledges that permit banks are not
proven to achieve these goals in all
cases. This is why the preamble to the
proposed rule referred to a potential
permit bank with the State of Maine as
a pilot program. NMFS intends to utilize
this opportunity, should a grant be
awarded to the State of Maine for this
purpose, to study the implications of
establishing such a permit bank and
would utilize the results of the pilot
program to inform decisions on
potential future expansion of the permit
bank concept.
Comment 2: A commenter opposed
the authority proposed in the rule
because it would deny the permit bank
the opportunity to be heard on the
issues by an Administrative Law Judge,
and because the fishermen who leased
the fishing rights associated with the
permits in question may suffer
economic hardship if the permits are
rescinded.
Response: Existing Department of
Commerce regulations at 15 CFR parts
14 and 24 establish the overarching
procedures and requirements for
Federal grants to institutions of higher
education, hospitals, other non-profits,
commercial organization, and state and
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local governments, and also stipulate
procedures to enforce the terms and
conditions of such grants. Regulations at
15 CFR 14.62(a) and 15 CFR 24.43(a)
provide as ‘‘remedies for
noncompliance,’’ that the awarding
agency may take actions that include
temporarily withholding cash payments,
suspending or terminating the current
award, withholding future awards, or
taking ‘‘other remedies that may be
legally available.’’ By this rule, NMFS is
establishing an additional remedy to be
available for the enforcement of a
Federal grant intended to be used for a
permit bank. Regarding the comment
that the rule would ‘‘deny the permit
bank the opportunity to be heard on the
issues,’’ existing regulations at 15 CFR
14.62(b) and 24.43(b) provide such an
opportunity for a hearing or appeal, as
follows ‘‘In taking an enforcement
action, the awarding agency will
provide the grantee or subgrantee an
opportunity for such hearing, appeal, or
other administrative proceeding to
which the grantee or subgrantee is
entitled . . .’’ Nothing in this rule
preempts or replaces these existing
regulations. Also, as clarified above,
NMFS does not intend for any
enforcement action taken pursuant to
this rule to adversely affect fishermen
who leased the fishing rights associated
with the subject permits. NMFS intends
that any such enforcement action would
be taken either at the time of an
application for a permit lease
transaction, at the time of permit
renewal, or prior to the start of a fishing
year.
Comment 3: A number of commenters
indicated general support for the intent
of the proposed rule and for permit
banks in general, but raised several
relevant questions regarding how this
rule would be implemented. The
commenters questioned: (1) The
definition of what qualified as a Federal
grant for the purposes of this rule; (2)
who is responsible for determining
when a violation of a grant agreement
has occurred and what specific
enforcement action the violation would
merit; and (3) whether there would be
a formal appeals or arbitration process
established for cases when the parties
disagree as to whether a violation has
occurred.
Response: In response to the first
question raised by the commenters,
NMFS clarifies in this final rule that the
intent is for this action to apply only to
Federal grants issued by NOAA for the
express purpose of purchasing fishing
vessels, obtaining fishing vessel permits,
and/or establishing or expanding a
permit bank, and this action would not
apply to permits obtained through
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grants of a more general nature or those
awarded by other Federal agencies.
Regarding who is responsible for
determining whether a violation of a
grant agreement has occurred,
Department of Commerce regulations at
15 CFR 14.61, 14.62, 24.43, and 24.44
establish that the Grants Officer may
terminate grant awards, or take
appropriate enforcement actions. Upon
closeout of the grant award, if the
operation of a permit bank program
continues under the terms of a
memorandum of understanding or
agreement between NMFS and the grant
recipient, this authority shall transition
to the Regional Administrator for the
remaining effective period of the subject
memorandum of understanding or
agreement. Regarding the determination
of the specific enforcement action
would be taken if a violation is
determined to have occurred, NMFS
intends that this would depend on the
scope and severity of the violation in
question. NMFS intends first to attempt
to resolve any concerns with the
operation of a NOAA-funded permit
bank informally between the program
contact representatives for the
respective parties. Failing this, concerns
may be raised to the level of the
respective signatories of the
memorandum of understanding or
agreement for resolution. If resolution
cannot be achieved at this level, the
Grants Officer or Regional
Administrator will reserve the right to
take appropriate enforcement action, as
authorized by 15 CFR 14.62 and 24.43,
and this action. Regarding the potential
for an appeals or arbitration process in
the event the parties disagree as to
whether a violation has occurred, the
Department of Commerce regulations at
15 CFR 14.62(b) and 14.43(b) provide
for the grantee to have an opportunity
for a hearing, appeal, or other
administrative proceeding. Nothing in
this action is intended to replace,
supersede, or contravene existing
Department of Commerce regulations on
administration of Federal grants.
Comment 4: A comment letter on
behalf of the State of Maine indicated
general support for the proposed rule,
but also raised a concern about the
potential terms of the proposed grant to
the State of Maine to establish a permit
bank.
Response: The details of any terms
and conditions applicable to a proposed
grant to the State of Maine will be
developed and finalized in a separate
and future action, and are not relevant
to this rule.
Comment 5: A comment letter on
behalf of the New England Fishery
Management Council requested that the
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Federal Register / Vol. 74, No. 248 / Tuesday, December 29, 2009 / Rules and Regulations
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final rule make clear that all vessel
permits obtained using Federal grant
awards be used in a manner consistent
with all fishery management plan
provisions governing those permits, and
that the permits should not be subject to
additional constraints without Council
consideration.
Response: NMFS intends for any
fishing operations conducted by a vessel
using access rights (e.g., DAS, ACE)
associated with a Federal permit
obtained using a Federal grant award to
be consistent with applicable fishery
management plan provisions and to
fully comply with all applicable fishing
regulations. However, NMFS reserves
the right to establish more restrictive
criteria for the operations of any permit
banks established using Federal grant
awards.
Comment 6: A commenter opposed
the use of Federal funds to establish
permit banks.
Response: While NMFS acknowledges
that some stakeholders may have
concerns regarding the use of Federal
funds to establish permit banks, this
action does not, in itself, create or
authorize the use of Federal funds in
this manner. This action is wholly
constrained to establishing an effective
enforcement mechanism such that
NOAA, should it at some future time
provide a Federal grant award to a state,
or other party, for the purpose of
obtaining one or more fishing vessels,
and the associated Federal permits,
retains some level of oversight and
control over how the fishing rights
associated with the permits are used,
beyond the duration of the Federal grant
award.
Classification
Pursuant to section 305(d) of the
Magnuson-Stevens Act, the NMFS
Assistant Administrator determined that
this final rule is consistent with the
Fishery Management Plans (FMPs) of
the NE Region, other provisions of the
Magnuson-Stevens Act, and other
applicable law, and is necessary to
discharge the general responsibility to
carry out said FMPs.
This final 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 during
the proposed rule stage that this action
would not have a significant economic
impact on a substantial number of small
entities. The factual basis for the
certification was published in the
proposed rule and is not repeated here.
No comments were received regarding
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this certification. As a result, a
regulatory flexibility analysis was not
required and none was prepared.
List of Subjects in 50 CFR part 648
Fisheries, Fishing, Reporting and
recordkeeping requirements.
Dated: December 22, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator For
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, 50 CFR part 648 is amended
as follows:
■
PART 648—FISHERIES OF THE
NORTHEASTERN UNITED STATES
1. The authority citation for part 648
continues to read as follows:
■
Authority: 16 U.S.C. 1801 et seq.
2. In § 648.4, add paragraph (n) to read
as follows:
■
§ 648.4
Vessel permits.
*
*
*
*
*
(n) Federal grant awards. The
Regional Administrator may suspend,
cancel, fail to renew, modify, or
otherwise rescind any Federal fishing
vessel permit, issued pursuant to this
section, including the rights thereto,
held by a person, corporation, nonprofit organization, or government
entity if the terms and conditions of any
Federal grant award used to obtain said
permit, or an associated memorandum
of understanding or agreement, are
violated by the grant recipient.
[FR Doc. E9–30838 Filed 12–28–09; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 0910091344–9056–02]
RIN 0648–XT52
Fisheries of the Exclusive Economic
Zone Off Alaska; Inseason Adjustment
to the 2010 Gulf of Alaska Pollock and
Pacific Cod Total Allowable Catch
Amounts
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; inseason
adjustment; request for comments.
SUMMARY: NMFS is adjusting the 2010
total allowable catch (TAC) amounts for
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68713
the Gulf of Alaska (GOA) pollock and
Pacific cod fisheries. This action is
necessary because NMFS has
determined these TACs are incorrectly
specified, and will ensure the GOA
pollock and Pacific cod TACs are the
appropriate amounts based on the best
available scientific information for
pollock and Pacific cod in the GOA.
This action is consistent with the goals
and objectives of the Fishery
Management Plan for Groundfish of the
Gulf of Alaska (FMP).
DATES: Effective 1200 hrs, Alaska local
time (A.l.t.), December 29, 2009, until
the effective date of the final 2010 and
2011 harvest specifications for GOA
groundfish, unless otherwise modified
or superseded through publication of a
notification in the Federal Register.
Comments must be received at the
following address no later than 4:30
p.m., A.l.t., January 13, 2010.
ADDRESSES: Send comments to Sue
Salveson, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region, NMFS, Attn:
Ellen Sebastian. You may submit
comments, identified by RIN 0648–
XT52, by any one of the following
methods:
• Electronic Submissions: Submit all
electronic public comments via the
Federal eRulemaking Portal https://
www.regulations.gov.
• Mail: P.O. Box 21668, Juneau, AK
99802.
• Fax: (907) 586–7557.
• Hand delivery to the Federal
Building: 709 West 9th Street, Room
420A, Juneau, AK.
All comments received are a part of
the public record. No comments will be
posted to https://www.regulations.gov for
public viewing until after the comment
period has closed. Comments will
generally be posted 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.
NMFS will accept anonymous
comments (enter N/A in the required
fields, if you wish to remain
anonymous). You may submit
attachments to electronic comments in
Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT:
Obren Davis, 907–586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
GOA exclusive economic zone
according to the FMP prepared by the
North Pacific Fishery Management
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]]>Agencies
[Federal Register Volume 74, Number 248 (Tuesday, December 29, 2009)]
[Rules and Regulations]
[Pages 68710-68713]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-30838]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 0909011267-91427-02]
RIN 0648-AY19
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
[[Page 68711]]
SUMMARY: NMFS is modifying the fishing vessel permit regulations to
include specific terms and conditions for Federal fishing vessel
permits obtained through the purchase of fishing vessels using Federal
grant awards. The terms and conditions authorize the NMFS
Administrator, Northeast Region (Regional Administrator), to suspend,
cancel, fail to renew, modify, or otherwise rescind any Federal fishing
vessel permit, or the rights thereto, if the terms and conditions of
any Federal grant award used to obtain said permit, or an associated
memorandum of understanding or agreement, are violated by the grant
recipient.
DATES: This final rule is effective on January 28, 2010.
ADDRESSES: Copies of the Regulatory Impact Review (RIR) are available
upon request from Patricia A. Kurkul, Regional Administrator, NMFS,
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA
01930.
FOR FURTHER INFORMATION CONTACT: Michael Pentony, Senior Fishery Policy
Analyst, phone (978) 281-9283.
SUPPLEMENTARY INFORMATION:
Background
This final rule implements changes to the Northeast (NE) fisheries
regulations at 50 CFR part 648 to authorize the Regional Administrator
to suspend, cancel, fail to renew, modify, or otherwise rescind any
Federal fishing vessel permit, including the rights thereto, held by a
person, corporation, non-profit organization, or government entity if
the terms and conditions of any Federal grant award used to obtain said
permit, or an associated memorandum of understanding or agreement, are
violated by the grant recipient. The intent of this action is to
establish an effective regulatory mechanism through which NOAA will be
able to enforce the terms and conditions of any Federal grant award
used to obtain Federal fishing vessel permits in the NE Region.
As several fisheries in the NE Region begin to transition to catch-
share management strategies, various fishing organizations,
conservations groups, and states are exploring alternatives to the
traditional vessel-permit ownership model. An alternative model known
as ``permit banking'' is developing in the Northeast, whereby an
organization obtains a suite of permits in a particular fishery, with
the option to lease out the fishing rights associated with those
permits.
Permit banks hold promise for addressing two important issues
related to the development and implementation of effective catch-share
management programs: First, permit banks could be used to ease the
transition to catch-share management by expanding the pool of catch
shares available for use; and, second, permit banks could be used to
demonstrate that small fishing operations and small communities can be
successful participants in catch-share management programs. Depending
on the structure of the permit bank, and the criteria used for
participation, permit banks could be very effective at protecting the
fishing interests of small communities and small-scale fishing
operations by mitigating some of the consolidation of fishing rights
that often follows implementation of catch-share programs.
Interest in developing permit banking programs is expanding in the
NE and, because of NOAA's policy position promoting catch-share
management, the NMFS NE Regional Office has proposed a pilot program
designed to guide the development and expansion of permit banks in
order to facilitate the implementation of effective catch-share
programs. In the spending plan for a recent Congressional authorization
for New England fisheries assistance, NOAA proposed to award a $1-
million grant to develop this pilot permit banking program in Maine.
Since then, NMFS has been working in partnership with Maine's
Department of Marine Resources on a program that would allow the State
to use the grant award to purchase fishing vessels with associated
permits. The fishing rights associated with the permits would then
serve as the basis for a permit bank to be operated by the State, in
partnership with NMFS, to facilitate the transition to catch-share
management by leasing additional fishing opportunities to qualified
vessel owners in small ports. The State of Maine is very interested in
developing such a partnership and establishing a permit bank. If the
pilot program proves successful, NOAA may consider expanding the
program throughout other parts of the NE Region.
Absent this regulatory change, NOAA would not be able to retain
sufficient control and oversight of the resulting permit banking
program to ensure its success. Under current grant management rules and
fishing vessel permit regulations, once a grant award is made to an
organization, and the award is used to obtain fishing vessel permits,
NOAA risks losing control over the implementation and operation of the
resulting permit bank. Even if the grant includes special award
conditions specifying the criteria to be used in operation of the
permit bank, NOAA would have limited mechanisms to enforce those
criteria once an organization obtains the permits. In order to protect
NOAA's and the public's interests in the successful development,
implementation, and operation of such a program, this regulatory change
is necessary to provide NOAA with an appropriate oversight mechanism.
This action amends the NMFS NE Region regulations regarding fishing
vessel permits to include specific terms and conditions that will apply
to Federal fishing vessel permits obtained through the purchase of
fishing vessels using Federal grant awards. The terms and conditions
authorize the Regional Administrator to suspend, cancel, fail to renew,
modify, or otherwise rescind any Federal fishing vessel permit,
including the rights thereto, held by a person, corporation, non-profit
organization, or government entity if the terms and conditions of any
Federal grant award used to obtain said permit, or an associated
memorandum of understanding or agreement, are violated by the grant
recipient.
In addition, this final rule responds to three issues raised in the
comments received on the proposed rule for this action. First, NMFS's
intent is for this action to apply only to Federal grants issued by
NOAA for the express purpose of purchasing fishing vessels, obtaining
fishing vessel permits, and/or establishing or expanding a permit bank,
and this action would not apply to permits obtained through grants of a
more general nature or those awarded by other Federal agencies. Second,
the new regulation implemented by this final rule is intended to
provide an oversight mechanism for vessel permit-related grants that
supplements but does not replace, supersede, or contravene existing
enforcement provisions and procedures established under Department of
Commerce regulations at 15 CFR parts 14 and 24. Third, it is NMFS's
intent that any such controls applied to a permit bank as authorized by
this action would be imposed either at the time of an application for a
permit lease transaction or at the time of permit renewal, and it is
not NMFS's intent for such permit sanctions to affect the intended
recipients of the permit lease transactions.
Comments and Responses
Nine individual comment letters were received on the proposed rule.
Comment 1: One commenter objected to the suggestion that a
potential pilot permit bank with the State of Maine may be limited to
qualified vessels in small ports, and took issue with statements in the
preamble to the
[[Page 68712]]
proposed rule regarding potential benefits of permit banks.
Response: NMFS understands that some stakeholders may object to
some of the terms and conditions that may be placed on Federal grant
awards used to obtain fishing vessel permits for the purpose of
establishing one or more permit banks. However, nothing in this action
imposes or constrains any future actions with respect to the specific
terms and conditions that may be imposed on a state, or other party,
regarding a Federal grant award that may be used to establish a permit
bank. This action is wholly constrained to establishing an effective
oversight mechanism such that NOAA, should it at some future time
provide a Federal grant award to a state, or other party, for the
purpose of obtaining one or more fishing vessels and the associated
Federal permits, as a means to retain some level of oversight and
control over how the fishing rights associated with the permits are
used, beyond the duration of the Federal grant award. Regarding the
perceived implications of permit banks for the affected public, NMFS
considers permit banks as one potential tool to ease the transition to
catch-share management programs and as a potential way to preserve
fishing opportunities for small fishing operations and/or small fishing
communities so that they can participate effectively in catch-share
management programs. However, NMFS acknowledges that permit banks are
not proven to achieve these goals in all cases. This is why the
preamble to the proposed rule referred to a potential permit bank with
the State of Maine as a pilot program. NMFS intends to utilize this
opportunity, should a grant be awarded to the State of Maine for this
purpose, to study the implications of establishing such a permit bank
and would utilize the results of the pilot program to inform decisions
on potential future expansion of the permit bank concept.
Comment 2: A commenter opposed the authority proposed in the rule
because it would deny the permit bank the opportunity to be heard on
the issues by an Administrative Law Judge, and because the fishermen
who leased the fishing rights associated with the permits in question
may suffer economic hardship if the permits are rescinded.
Response: Existing Department of Commerce regulations at 15 CFR
parts 14 and 24 establish the overarching procedures and requirements
for Federal grants to institutions of higher education, hospitals,
other non-profits, commercial organization, and state and local
governments, and also stipulate procedures to enforce the terms and
conditions of such grants. Regulations at 15 CFR 14.62(a) and 15 CFR
24.43(a) provide as ``remedies for noncompliance,'' that the awarding
agency may take actions that include temporarily withholding cash
payments, suspending or terminating the current award, withholding
future awards, or taking ``other remedies that may be legally
available.'' By this rule, NMFS is establishing an additional remedy to
be available for the enforcement of a Federal grant intended to be used
for a permit bank. Regarding the comment that the rule would ``deny the
permit bank the opportunity to be heard on the issues,'' existing
regulations at 15 CFR 14.62(b) and 24.43(b) provide such an opportunity
for a hearing or appeal, as follows ``In taking an enforcement action,
the awarding agency will provide the grantee or subgrantee an
opportunity for such hearing, appeal, or other administrative
proceeding to which the grantee or subgrantee is entitled . . .''
Nothing in this rule preempts or replaces these existing regulations.
Also, as clarified above, NMFS does not intend for any enforcement
action taken pursuant to this rule to adversely affect fishermen who
leased the fishing rights associated with the subject permits. NMFS
intends that any such enforcement action would be taken either at the
time of an application for a permit lease transaction, at the time of
permit renewal, or prior to the start of a fishing year.
Comment 3: A number of commenters indicated general support for the
intent of the proposed rule and for permit banks in general, but raised
several relevant questions regarding how this rule would be
implemented. The commenters questioned: (1) The definition of what
qualified as a Federal grant for the purposes of this rule; (2) who is
responsible for determining when a violation of a grant agreement has
occurred and what specific enforcement action the violation would
merit; and (3) whether there would be a formal appeals or arbitration
process established for cases when the parties disagree as to whether a
violation has occurred.
Response: In response to the first question raised by the
commenters, NMFS clarifies in this final rule that the intent is for
this action to apply only to Federal grants issued by NOAA for the
express purpose of purchasing fishing vessels, obtaining fishing vessel
permits, and/or establishing or expanding a permit bank, and this
action would not apply to permits obtained through grants of a more
general nature or those awarded by other Federal agencies. Regarding
who is responsible for determining whether a violation of a grant
agreement has occurred, Department of Commerce regulations at 15 CFR
14.61, 14.62, 24.43, and 24.44 establish that the Grants Officer may
terminate grant awards, or take appropriate enforcement actions. Upon
closeout of the grant award, if the operation of a permit bank program
continues under the terms of a memorandum of understanding or agreement
between NMFS and the grant recipient, this authority shall transition
to the Regional Administrator for the remaining effective period of the
subject memorandum of understanding or agreement. Regarding the
determination of the specific enforcement action would be taken if a
violation is determined to have occurred, NMFS intends that this would
depend on the scope and severity of the violation in question. NMFS
intends first to attempt to resolve any concerns with the operation of
a NOAA-funded permit bank informally between the program contact
representatives for the respective parties. Failing this, concerns may
be raised to the level of the respective signatories of the memorandum
of understanding or agreement for resolution. If resolution cannot be
achieved at this level, the Grants Officer or Regional Administrator
will reserve the right to take appropriate enforcement action, as
authorized by 15 CFR 14.62 and 24.43, and this action. Regarding the
potential for an appeals or arbitration process in the event the
parties disagree as to whether a violation has occurred, the Department
of Commerce regulations at 15 CFR 14.62(b) and 14.43(b) provide for the
grantee to have an opportunity for a hearing, appeal, or other
administrative proceeding. Nothing in this action is intended to
replace, supersede, or contravene existing Department of Commerce
regulations on administration of Federal grants.
Comment 4: A comment letter on behalf of the State of Maine
indicated general support for the proposed rule, but also raised a
concern about the potential terms of the proposed grant to the State of
Maine to establish a permit bank.
Response: The details of any terms and conditions applicable to a
proposed grant to the State of Maine will be developed and finalized in
a separate and future action, and are not relevant to this rule.
Comment 5: A comment letter on behalf of the New England Fishery
Management Council requested that the
[[Page 68713]]
final rule make clear that all vessel permits obtained using Federal
grant awards be used in a manner consistent with all fishery management
plan provisions governing those permits, and that the permits should
not be subject to additional constraints without Council consideration.
Response: NMFS intends for any fishing operations conducted by a
vessel using access rights (e.g., DAS, ACE) associated with a Federal
permit obtained using a Federal grant award to be consistent with
applicable fishery management plan provisions and to fully comply with
all applicable fishing regulations. However, NMFS reserves the right to
establish more restrictive criteria for the operations of any permit
banks established using Federal grant awards.
Comment 6: A commenter opposed the use of Federal funds to
establish permit banks.
Response: While NMFS acknowledges that some stakeholders may have
concerns regarding the use of Federal funds to establish permit banks,
this action does not, in itself, create or authorize the use of Federal
funds in this manner. This action is wholly constrained to establishing
an effective enforcement mechanism such that NOAA, should it at some
future time provide a Federal grant award to a state, or other party,
for the purpose of obtaining one or more fishing vessels, and the
associated Federal permits, retains some level of oversight and control
over how the fishing rights associated with the permits are used,
beyond the duration of the Federal grant award.
Classification
Pursuant to section 305(d) of the Magnuson-Stevens Act, the NMFS
Assistant Administrator determined that this final rule is consistent
with the Fishery Management Plans (FMPs) of the NE Region, other
provisions of the Magnuson-Stevens Act, and other applicable law, and
is necessary to discharge the general responsibility to carry out said
FMPs.
This final 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 during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. No comments were received
regarding this certification. As a result, a regulatory flexibility
analysis was not required and none was prepared.
List of Subjects in 50 CFR part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: December 22, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 648 is amended as
follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.4, add paragraph (n) to read as follows:
Sec. 648.4 Vessel permits.
* * * * *
(n) Federal grant awards. The Regional Administrator may suspend,
cancel, fail to renew, modify, or otherwise rescind any Federal fishing
vessel permit, issued pursuant to this section, including the rights
thereto, held by a person, corporation, non-profit organization, or
government entity if the terms and conditions of any Federal grant
award used to obtain said permit, or an associated memorandum of
understanding or agreement, are violated by the grant recipient.
[FR Doc. E9-30838 Filed 12-28-09; 8:45 am]
BILLING CODE 3510-22-S
