E7-15135. Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Fisheries; Regulatory Amendment to Reconcile State and Federal Commercial Fishing Vessel Permit Programs

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS is implementing regulations to modify the permitting and vessel replacement provisions for Federal limited access permit programs of the Northeastern United States, excluding American lobster. This action is intended to prevent fishing effort beyond what is accounted for in the fishery management plans (FMPs) for each fishery and to reinforce efforts undertaken by state fishery management agencies at targeting regulations specifically for vessels that participate wholly in state water fisheries. These measures are necessary to meet the conservation and management requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

DATES:

Effective September 4, 2007, except for 648.4(a)(1)(i)(E) and 648.14(a)(179), which will be effective January 1, 2008.

ADDRESSES:

Copies of this regulatory amendment, its Regulatory Impact Review (RIR), the Final Regulatory Flexibility Analysis (FRFA), and the Environmental Assessment (EA) are available from Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, 1 Blackburn Drive, Gloucester, MA 01930. A copy of the RIR/FRFA and the small entity compliance guide is also accessible via the Internet at http://www.nero.noaa.gov/​.

FOR FURTHER INFORMATION CONTACT:

Brian Hooker, Fishery Policy Analyst, phone: [phone], fax: [phone].

SUPPLEMENTARY INFORMATION:

Background

State and Federal FMPs governing fisheries for the same species may differ in reporting requirements, participation restrictions, and overall strategies to control fishing mortality. These programs may be successful in achieving their objectives only when a vessel fishes in one program, either state or Federal, for an entire permit year, because the management measures are typically based on analyses of fishing effort, and where that effort is expected to take place. Federal regulations are rarely the exclusive authority governing federally permitted commercial fishing vessels. Vessels that have both Federal and state permits are bound by the more restrictive of the regulations in effect. In contrast, vessels without a valid Federal permit can be permitted by a state to fish exclusively in state territorial waters, and such vessels do not have to comply with Federal fishing regulations.

Current regulations require that a federally permitted fishing vessel must abide by Federal fishing regulations, regardless of whether the vessel is fishing in state or Federal waters. However, vessels that delay getting their Federal permit may be authorized to participate exclusively in state water fisheries under state rules and regulations. Although splitting fishing effort between state and Federal waters may have repercussions across all federally managed fisheries, the impact of vessels splitting fishing effort between state and Federal programs is thought to be greatest in Federal fisheries utilizing a fishing effort control program referred to as a days-at-sea (DAS) program, which is common in Federal fisheries management in New England. This type of program limits the amount of days that a federally permitted commercial fishing vessel can fish each year. Under current Federal regulations, a DAS vessel could increase its overall effort by fishing in state waters outside of the DAS program prior to renewal of its Federal DAS permit. Although it is estimated that less than 10 percent of federally permitted vessels currently exploit this inadvertent exception to Federal regulations, there is concern that this practice could expand, especially should further reductions in DAS be necessary. Thus, the purpose of this action is to remove an unintended consequence of having a Federal permit renewal system that effectively allows for a temporary relinquishment, or suspension, of a Federal limited access permit. It was never the intention of the regulations to allow a vessel to participate wholly in a state fishing program, in which it would not otherwise be allowed to participate under the conditions of the Federal limited access permit program for which it was eligible, while the vessel's Federal limited access permits were suspended.

This action applies only to Federal limited access and moratorium commercial fishing vessel permit holders. The terms “limited access” and “moratorium” in regards to Federal permit programs are synonymous. A limited access permit is a permit that an individual has applied for and received based on qualification criteria set forth in the FMP. By applying for and receiving a limited access permit, a vessel owner has agreed to abide by a fishing program that, in turn, grants exclusive fishing privileges. Under current regulations, a Federal limited access permit must be renewed on an annual basis. If the permit is not issued within 1 year of the last day of the permit year for which it was valid, the permit is cancelled and rendered ineligible for renewal. Open access permits, which are not affected by this action, can be applied for with minimum qualification criteria, and received on an annual basis without any deadlines.

Public comment regarding this action was solicited in the proposed rule (72 FR 17085, April 6, 2007). The comment period closed on May 7, 2007.

Management Measures

This action remedies the situation described in the preceding paragraphs by making it a condition, upon issuance of a limited access permit, that the permit holder agrees that the vessel may not fish for or land, in or from Federal or state waters, any species of fish authorized by the permit, unless and until the permit has been issued or renewed in any subsequent permit year, or the permit either has been voluntarily relinquished or otherwise forfeited, revoked, or transferred from the vessel. This condition of the limited access permit is in effect for the entire duration of the permit's renewal eligibility period. For example, if an issued permit expired on April 30, 2006, a vessel owner would have until April 30, 2007, to be reissued the permit. Thus, the vessel owner would be subject to the permit condition through April 30, 2007. By participating in a Federal limited access fishing program, a vessel owner is agreeing to participate wholly in that program and be subject to all of its accompanying regulations until such time that the vessel owner is no longer eligible to renew his/her vessel's limited access permit. This measure impacts the Federal limited access commercial fishing vessel permits issued by the NMFS Northeast Regional Office that are listed in Table 1. Any future limited access permits implemented by the NMFS, Northeast Regional Office, unless otherwise explicitly exempted, are subject to this rule. The second measure included in this action limits the number of vessel replacements allowed during a permit year. This measure is also applicable to all future and current limited access vessels, which are listed in Table 1. These measures are discussed separately below.

Table 1.—List of Northeast Region Limited Access Permit Categories Affected by Final Rule

Fishery	Limited access permit categories
Atlantic Sea Scallop	2, 3, 4, 5, 6, 7, 8, 9.
NE Multispecies	A, C, D, E, F, HA.
Monkfish	A, B, C, D, F, G, H.
Maine Ocean Quahog	7.
Summer Flounder	1.
Scup	1.
Black Sea Bass	1.
Atlantic Herring	A, B, C.
Squid, Mackerel, Butterfish	1, 5.
Golden Tilefish	A, B, C.
Atlantic Deep-Sea Red Crab	B, C.

Limited Access Permit Fishing Prohibition After Expiration and Prior To Renewal

Under this action, a commercial fishing vessel that was issued, or is in possession of, a valid Federal limited access fishing permit at the end of the permit year immediately preceding the current permit year, is prohibited from landing any fish managed under 50 CFR part 648 for which the vessel would be authorized under the conditions of the limited access permit(s), unless at least one of the following conditions is met:

• The vessel owner has renewed the Federal limited access permit(s) for the current permit year;
• The vessel owner has voluntarily permanently relinquished the vessel's Federal limited access permit(s); or
• The vessel has been replaced by another vessel and the permit eligibility has moved to the new vessel or was placed into Confirmation of Permit History (CPH).

In other words, a vessel owner who is eligible to renew his/her vessel's Federal limited access permit is prohibited from fishing for and/or possessing any fish for which the vessel would be authorized under the respective limited access permit, from any waters, unless the limited access permit(s) has been renewed or removed from the vessel. All vessel reporting requirements for the limited access permits the vessel is eligible to renew remain in effect unless the limited access permit(s) have been relinquished or transferred to another vessel or CPH. This includes completed fishing vessel trip reports (VTRs) for the entire period that the vessel was issued or eligible to be issued a limited access permit. Since these restrictions are a condition of the issuance of a limited access permit, this rule does not apply to an individual until after an individual has applied for or been issued a limited access permit on or after the effective date of this final rule.

The vessel owner must take an action, as outlined below, regarding the limited access permit for which he/she is eligible at the time the first permit application is submitted for a subsequent permit year. Actions that could be taken are the renewal, relinquishment, or transfer of the limited access permit(s). All limited access permits for which a vessel is eligible must be renewed at the same time. In addition, a vessel that is eligible for a Federal limited access permit may be issued a Federal open access fishing permit only at the same time, or after, the limited access permits have been either renewed, relinquished, or transferred for the given permit year. For example, if a vessel owner eligible for a limited access NE multispecies permit would like to be issued the limited access NE multispecies permit, an open access skate permit, and an open access spiny dogfish permit during a given year he/she must apply for all three permits at the same time, or renew the limited access NE multispecies permit prior to adding the open access skate and dogfish permits. The open access skate and dogfish permits could be applied for together or separately after the limited access NE multispecies permit was renewed. Failure to renew a limited access permit by the end of the permit year will result in the loss of eligibility to renew the permit in subsequent permit years.

Thus, this action commits a limited access vessel to a specific fishery program (state or Federal) prior to engaging in any fishing activities. This measure eliminates an inadvertent exception to Federal regulations that is currently exploited by a minority of vessel owners and/or operators and potentially prevents more vessel owners and/or operators from taking advantage of this situation in the future.

One-Time Vessel Replacement Per Permit Year

This action allows only one transfer of limited access permits per permit year, unless the vessel being replaced has been rendered inoperable and not repairable, due to unforeseen circumstances. The intent of this measure is to deter vessel owners from moving limited access permits off their primary vessel prior to the start of a permit year and then moving them back onto their primary vessel after the primary vessel has fished part of the permit year in a state waters fishery program. Under this scenario, a vessel owner is prohibited from transferring the permits back onto the secondary vessel prior to the start of the following permit year. The previous vessel replacement measures were implemented in order to give flexibility to vessel owners to purchase and replace a vessel in a timely manner. The action maintains this flexibility while ensuring that the vessel replacement program is not utilized to avoid Federal regulations for a period of time.

Comments and Responses

NMFS did not receive any public comment on the proposed rule during the comment period.

Changes From the Proposed Rule

The regulatory text from the proposed rule has been modified to clarify that the vessel reporting requirements, specifically fishing vessel trip reports, for vessels eligible to renew a limited access permit remain in effect unless the limited access permit(s) have been relinquished, transferred to another vessel, or placed into CPH. This requirement was explicitly stated in the preamble of the proposed rule and repeated again in the preamble of this final rule. This clarification revises the regulatory text in paragraph § 648.7(b)(1)(i).

Classification

This action is taken under the authority of the Magnuson-Stevens Act and regulations at 50 CFR part 648. The Regional Administrator determined that management measures contained in this final rule are necessary for the conservation and management of fisheries of the Northeastern United States and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866. A description of the reasons why this action is being taken by the Agency and the objectives of this final rule are contained in the preambles of the proposed and final rules. This action does not duplicate, overlap, or conflict with any other Federal rules.

Final Regulatory Flexibility Analysis

NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), prepared this entire FRFA in support of the management measures contained in this permitting action. The FRFA incorporates the economic impacts summarized in the IRFA and the corresponding RIR that were prepared for this action. A summary of the IRFA was published in the Classification section of the proposed rule and is not repeated here. Copies of the IRFA, FRFA and RIR prepared for this action are available from the Northeast Regional Office (see ADDRESSES). A description of why this action was taken, the objectives of, and the legal basis for this rule, are contained in the preamble to the proposed rule and this final rule and are not repeated here.

Summary of Issues Raised by the Public Comments in Response to the IRFA

No public comments on the proposed rule were received.

Description and Estimate of Number of Small Entities To Which This Rule Will Apply

Approximately 3,700 vessels could be affected by this action. In all, these participants generate close to $1 billion annually from the sale of fish and shellfish. The Small Business Administration (SBA) size standard for small commercial fishing entities is $4.0 million in gross receipts and would apply to all limited access permit holders affected by this action.

Data compiled by NMFS from the 2004 fishing year (FY) indicate that 64 vessels delayed their permit renewal and landed fish during the time their Federal permit was invalid. In the same year, eight vessels were replaced that reported landings later in the same fishing year. Thus, this final rule will potentially impact 72 vessels out of over 3,700 federally permitted limited access vessels in the NE Region. An average of 94 percent of vessel owners here renewed their permits by May 1, the start of the permit year for the majority of the fisheries affected, over the last few years. With this level of compliance, only about 370 entities, including the aforementioned vessels that reported landings during this time period, will likely be affected by the permit renewal portion of this action.

In addition to vessels delaying their permit renewal, some vessels are replaced by another fishing vessel during the permit year. Under this circumstance, the former vessel, which now no longer has Federal permits associated with it, may then continue to fish outside of Federal regulations in state waters. Across all limited access fisheries, approximately eight vessels landed fish as a result of replacing a vessel and then continuing to fish with the old vessel in 2004.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

This final rule will not alter the current reporting and recordkeeping requirements for commercial fishing vessels in the Northeast Region. The permit regulations promulgated under this rule modifies the timing and reduces the frequency of permit renewal and vessel replacement applications, respectively.

Description of Minimization of Economic Impacts on Small Entities

As mentioned previously, all entities to which this final rule applies are considered small entities by SBA size standards. Data show that only a small number of vessels currently exploit the inadvertent exception to Federal regulations that this action rectifies. In developing this rule, NMFS closely examined previous vessel permit renewal and vessel replacement practices to identify a way to achieve the goals of this final rule without disrupting the practices of the majority of Federal commercial fishing vessel permit holders. The other alternative analyzed to achieve the goals of this rule would have introduced a deadline for permit renewal applications and a new “Reserve Permit” if that deadline was missed. Thus, this rule minimizes economic impacts on small entities to the greatest extent practicable.

Small Entity Compliance Guide

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the action a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide was prepared. Copies of the guide will be sent to all holders of commercial Federal limited access permits. The guide will also be available on the internet at http://www.nero.noaa.gov. Copies of the guide can also be obtained from the Regional Administrator (see ADDRESSES).

Reporting and Recordkeeping Requirements

This action does not contain an additional collection-of-information requirement subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). NMFS Northeast Region commercial fishing vessel permit applications and vessel replacement applications are part of the collection of information under OMB Control Number 0648-0202. The current expiration date for OMB Control Number 0648-0202 is November 30, 2009.

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

Dated: July 25, 2007.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

For the reasons stated 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 § 648.2, a definition for “Permit year” is added, in alphabetical order, to read as follows:

§ 648.2

Definitions.

* * * * *

Permit year means:

(1) For the Atlantic sea scallop and Atlantic deep-sea red crab fisheries, from March 1 through the last day of February of the following year;

(2) For all other fisheries in this part, from May 1 through April 30 of the following year.

* * * * *

3. In § 648.4, paragraphs (a)(1)(i)(B), (a)(1)(i)(E), (a)(1)(i)(K), and (b) are revised to read as follows:

§ 648.4

Vessel permits.

* * * * *

(a) * * *

(1) * * *

(i) * * *

(B) Application/renewal restrictions. All limited access or moratorium permits established under this section must be issued on an annual basis by the last day of the permit year for which the permit is required, unless a confirmation of permit history (CPH) has been issued as specified in paragraph (a)(1)(i)(J) of this section. If a vessel is issued more than one limited access or moratorium permit under this section, these permits will be regarded as a permit suite. Permit renewal or relinquishment must be made at the time the first permit application is submitted for a new permit year. Application for limited access or moratorium permits must be received no later than 30 days before the last day of the permit year of the earliest expiration date for any permit in the suite of such permits issued to the vessel. Failure to renew a limited access or moratorium permit in any permit year bars the renewal of the permit in subsequent years. Open access permits may not be issued to a vessel eligible to renew a limited access or moratorium permit until such time that the vessel's limited access or moratorium permit(s) are renewed or voluntarily relinquished pursuant to paragraph (a)(1)(i)(K) of this section, or otherwise transferred from the vessel.

* * * * *

(E) Replacement vessels. With the exception of vessels that have obtained a limited access Handgear A permit described in § 648.82(b)(6), an owner of a vessel that has been issued any limited access or moratorium permit under this section is limited to one vessel replacement per permit year, using the earliest permit year start date of the limited access or moratorium permits for which the vessel is eligible, unless the vessel has been rendered inoperable and non-repairable. To be eligible for a limited access or moratorium permit under this section, the replacement vessel must meet the following criteria and any other applicable criteria under paragraph (a)(1)(i)(F) of this section:

* * * * *

(K) Abandonment or voluntary relinquishment of a limited access or moratorium permit. If a vessel's limited access or moratorium permit for a particular fishery is voluntarily relinquished to the Regional Administrator or abandoned through failure to renew or otherwise, no limited access or moratorium permit for that fishery may be reissued or renewed based on that vessel's limited access or moratorium permit history or to any other vessel relying on that vessel's limited access or moratorium permit history.

* * * * *

(b) Permit conditions. (1)(i) Any person who applies for and is issued or renews a fishing permit under this section agrees, as a condition of the permit, that the vessel and the vessel's fishing activity, catch, and pertinent gear (without regard to whether such fishing occurs in the EEZ or landward of the EEZ; and without regard to where such fish or gear are possessed, taken, or landed); are subject to all requirements of this part, unless exempted from such requirements under this part. All such fishing activities, catch, and gear will remain subject to all applicable state requirements. Except as otherwise provided in this part, if a requirement of this part and a management measure required by a state or local law differ, any vessel owner permitted to fish in the EEZ for any species managed under this part, except tilefish, must comply with the more restrictive requirement. Except as otherwise provided in this part, if a requirement of this part and a management measure required by a state or local law differ, any vessel owner permitted to fish in the tilefish management unit for tilefish managed under this part must comply with the more restrictive requirement. Owners and operators of vessels fishing under the terms of a summer flounder moratorium, scup moratorium, or black sea bass moratorium; or a spiny dogfish or bluefish commercial vessel permit, must also agree not to land summer flounder, scup, black sea bass, spiny dogfish, or bluefish, respectively, in any state after NMFS has published a notification in the Federal Register stating that the commercial quota for that state or period has been harvested and that no commercial quota is available for the respective species. A state not receiving an allocation of summer flounder, scup, black sea bass, or bluefish, either directly or through a coast-wide allocation, is deemed to have no commercial quota available. Owners and operators of vessels fishing under the terms of the tilefish limited access permit must agree not to land tilefish after NMFS has published a notification in the Federal Register stating that the quota for the tilefish limited access category under which a vessel is fishing has been harvested. Owners or operators fishing for surfclams and ocean quahogs within waters under the jurisdiction of any state that requires cage tags are not subject to any conflicting Federal minimum size or tagging requirements. If a surfclam and ocean quahog requirement of this part differs from a surfclam and ocean quahog management measure required by a state that does not require cage tagging, any vessel owners or operators permitted to fish in the EEZ for surfclams and ocean quahogs must comply with the more restrictive requirement while fishing in state waters. However, surrender of a surfclam and ocean quahog vessel permit by the owner by certified mail addressed to the Regional Administrator allows an individual to comply with the less restrictive state minimum size requirement, as long as fishing is conducted exclusively within state waters.

(ii) Any person who applies for or has been issued a limited access or moratorium permit on or after September 4, 2007 agrees, as a condition of the permit, that the vessel may not fish for, catch, possess, or land, in or from Federal or state waters, any species of fish authorized by the permit, unless and until the permit has been issued or renewed in any subsequent permit year, or the permit either has been voluntarily relinquished pursuant to paragraph (a)(1)(i)(K) of this section or otherwise forfeited, revoked, or transferred from the vessel.

(2) A vessel that is issued or renewed a limited access or moratorium permit on or after September 4, 2007 for any fishery governed under this section is prohibited from fishing for, catching, possessing, and/or landing any fish for which the vessel would be authorized under the respective limited access or moratorium permit in or from state and/or Federal waters in any subsequent permit year, unless and until the limited access or moratorium permit has been issued or renewed pursuant to paragraph (a)(1)(i)(B) of this section and the valid permit is on board the vessel. This prohibition does not apply to a vessel for which the limited access or moratorium permit has been voluntarily relinquished pursuant to paragraph (a)(1)(i)(K) of this section or otherwise forfeited, revoked, or transferred from the vessel.

* * * * *

4. In § 648.7, paragraph (b)(1)(i) is revised to read as follows:

§ 648.7

Recordkeeping and reporting requirements.

(b) * * *

(1) * * *

(i) The owner or operator of any vessel issued a valid permit or eligible to renew a limited access permit under this part must maintain on board the vessel, and submit, an accurate fishing log report for each fishing trip, regardless of species fished for or taken, on forms supplied by or approved by the Regional Administrator. As stated in paragraph (f)(2)(i) of this section, if no fishing trip is made during a month, a report stating so must be submitted for each month. If authorized in writing by the Regional Administrator, a vessel owner or operator may submit reports electronically, for example by using a VMS or other media. With the exception of those vessel owners or operators fishing under a surfclam or ocean quahog permit, at least the following information and any other information required by the Regional Administrator must be provided: Vessel name; USCG documentation number (or state registration number, if undocumented); permit number; date/time sailed; date/time landed; trip type; number of crew; number of anglers (if a charter or party boat); gear fished; quantity and size of gear; mesh/ring size; chart area fished; average depth; latitude/longitude (or loran station and bearings); total hauls per area fished; average tow time duration; hail weight, in pounds (or count of individual fish, if a party or charter vessel), by species, of all species, or parts of species, such as monkfish livers, landed or discarded; and, in the case of skate discards, “small” (i.e., less than 23 inches (58.42 cm), total length) or “large” (i.e., 23 inches (58.42 cm) or greater, total length) skates; dealer permit number; dealer name; date sold, port and state landed; and vessel operator's name, signature, and operator's permit number (if applicable).

* * * * *

5. In § 648.14, paragraph (a)(31)(ii) is revised, and paragraphs (a)(178) and (a)(179) are added to read as follows:

§ 648.14

Prohibitions.

(a) * * *

(31) * * *

(ii) The NE multispecies were harvested by a vessel not issued a NE multispecies permit, nor eligible to renew or be reissued a limited access NE multispecies permit as specified in § 648.4 (b)(2), that fishes for NE multispecies exclusively in state waters;

* * * * *

(178) If eligible for re-issuance or renewal of a limited access or moratorium permit:

(i) Fish for, take, catch, harvest or land any species of fish regulated by this part for which the vessel is eligible to possess under a limited access or moratorium permit until the vessel has been reissued the applicable limited access or moratorium permit by NMFS.

(ii) [Reserved]

(179) Attempt to replace a limited access or moratorium fishing vessel, as specified at § 648.4(a)(1)(i)(E), more than one time during a permit year, unless the vessel has been rendered inoperable and non-repairable.

* * * * *