[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Rules and Regulations]
[Pages 81505-81507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32691]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 101116568-0608-01]
RIN 0648-BA42


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

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

ACTION: Interim final rule, request for comments.

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SUMMARY: NMFS issues this interim final rule to amend the cost recovery 
regulations implementing the Tilefish Fishery Management Plan (FMP) to 
require the first year cost-recovery fee percentage to be calculated 
based on the best estimate of the actual costs associated with the 
management, data collection and analysis, and enforcement of the 
individual fishing quota (IFQ) allocation program (not to exceed 3 
percent), rather than to be set at the statutory maximum 3 percent of 
the ex-vessel value of tilefish landings.

DATES: This rule is effective December 28, 2010. Written comments must 
be received no later than 5 p.m. eastern standard time, on January 27, 
2011.

ADDRESSES: This document and other supporting material are available 
online at http://www.regulations.gov or http://www.nero.nmfs.gov. You 
may submit comments, identified by RIN number 0648-BA42, by any of the 
following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking portal http://www.regulations.gov.
    <bullet> Fax: (978) 281-9135, Attn: Christopher Biegel.
    <bullet> Mail: Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 
01930. Mark the outside of the envelope: ``Comments on Tilefish Cost-
Recovery Regulatory Amendment.''
    Instructions: All comments received are part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted via Microsoft Word, Microsoft Excel, 
WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Christopher Biegel, Fishery Management 
Specialist, phone (978) 281-9112.

SUPPLEMENTARY INFORMATION: 

Background

    Limited access privilege programs (LAPPs) are a management tool 
authorized under section 303A of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) that allow a 
permit holder exclusive harvest of a portion of the total allowable 
catch of a fishery, but does not confer any right or title to any fish 
before the fish is harvested by the holder. An IFQ is a form of LAPP 
where the harvest permit is issued to an individual. Cost-recovery for 
LAPPs is mandated by section 304(d)(2) of the Magnuson-Stevens Act, 
which states that ``the Secretary * * * shall collect a fee to recover 
the actual costs directly related to the management, data collection, 
and enforcement of any limited access privilege program.''
    The tilefish fishery is managed by the Mid-Atlantic Fishery 
Management Council (Council) through the Tilefish FMP. The final rule 
implementing Amendment 1 to the FMP (74 FR 42580, August 24, 2009) 
established an IFQ program which included the required cost-recovery 
provisions.
    Fees are collected to recover the costs associated with management, 
data

[[Page 81506]]

collection and analysis, and enforcement of IFQ programs. Amendment 1 
provides that NMFS shall determine a cost-recovery fee percentage for 
the tilefish fishery (not to exceed the statutory maximum of 3 percent) 
by calculating all the expenditures that are directly related to the 
management, data collection and analysis, and enforcement of the 
tilefish IFQ program for each fee period (calendar year) and then 
dividing that total by the total ex-vessel value of all tilefish 
landings from dealer reports for the same time period. The resulting 
percentage is used to calculate the individual tilefish IFQ fees for 
each fee period. This fee calculation has not been changed from the 
method detailed in the final rule implementing Amendment 1. Tilefish 
IFQ allocation permit holders are responsible for paying the fee, which 
is based on the value of landings of tilefish authorized under his/her 
tilefish IFQ allocation permit.
    When cost-recovery fees have been assessed, IFQ allocation permit 
holders have 45 days from the date of the bill to submit payment to 
NMFS. Cost-recovery payments are made electronically via the Federal 
Web portal, http://www.pay.gov. Electronic payment options include 
payment via a credit card, or via direct automated clearing house (ACH) 
withdrawal from a designated checking account.
    This interim final rule changes the language of the tilefish cost 
recovery regulations at 50 CFR 648.291(h)(1) pertaining to the first 
year cost-recovery billing period fee. NMFS initially set the fee at a 
statutory maximum of 3 percent of the total ex-vessel value of all 
landings under each permanent IFQ allocation permit, including landings 
of allocation that is leased for the first year, with any over charges 
to be credited against cost-recovery fees assessed in subsequent years. 
NMFS implemented this provision because NMFS expected that the 
information necessary to calculate the actual recoverable costs would 
not be available prior to sending out recovery fee statements for the 
first fee period. Using recently available information on the amount of 
actual costs incurred and the value of landings to date during the 
first year of the IFQ program, NMFS has estimated that using a fee of 3 
percent could over charge tilefish allocation holders as much as 10 
times their actual fee liability. This would constitute an unnecessary 
and excessive fee to the affected industry and, as such, would be 
contrary to the public interest. The new regulations require the first 
year fee percentage to be calculated based on the best estimate of the 
actual costs associated with the management, data collection and 
analysis, and enforcement of the IFQ allocation program (not to exceed 
3 percent).

Classification

    The Administrator, North East Region, NMFS, determined that the FMP 
cost-recovery regulatory amendment is necessary for the conservation 
and management of the tilefish fishery and that it is consistent with 
the Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for 
Fisheries, NOAA, finds good cause to waive prior notice and opportunity 
for additional public comment for this action because any delay of this 
action would be unnecessary, impracticable, and contrary to the public 
interest. This amendment includes revisions that make only minor, non-
substantive changes in order to avoid imposing unnecessarily high fees 
on tilefish IFQ holders. The regulatory provisions that this rule 
modify had set the cost-recovery fee for the first year at 3 percent of 
landed value of tilefish which is the maximum allowed by the Magnuson-
Stevens Act. NMFS established this fee because NMFS expected that the 
information necessary to calculate the actual fee for the first year 
would be unavailable as the cost-recovery fee bills must be mailed near 
the end of the fee period. However, the information necessary to 
calculate the actual cost-recovery fee has recently become available, 
so NMFS has been able make the calculation before the end of the fee 
period. The actual fees calculated were significantly less than the 3 
percent of landed value of tilefish. Also, although fee payment 
overages are credited against cost-recovery fees assessed in subsequent 
years, there is a concern that some fishermen may leave the fishery and 
not be able to recover their fee payment overage as there is no 
mechanism in the regulations that allows for such a repayment. 
Soliciting prior public comment on, and delaying the effective date of 
this rule, could prevent NMFS from billing IFQ holders for the actual 
cost-recovery fees and impose an unnecessary burden on the industry.
    Moreover, pursuant to 5 U.S.C. 553(d), the Assistant Administrator 
finds good cause to waive the 30-day delay in effective date for the 
reasons given above.
    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: December 21, 2010.
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.  648.291, paragraph (h)(1) is revised to read as follows:


Sec.  648.291  Individual fishing quota.

* * * * *
    (h) * * *
    (1) NMFS determination of the total annual recoverable costs of the 
tilefish IFQ program. The Regional Administrator shall determine the 
costs associated with the management, data collection and analysis, and 
enforcement of the IFQ allocation program. The recoverable costs will 
be divided by the amount of the total ex-vessel value of all tilefish 
IFQ landings during the cost-recovery billing period to derive a 
percentage. IFQ allocation permit holders will be assessed a fee based 
on this percentage times the total ex-vessel value of all landings 
under their permanent IFQ allocation permit, including landings of 
allocation that is leased. This fee shall not exceed 3 percent of the 
total value of tilefish landings of the IFQ Allocation permit holder. 
If NMFS determines that the costs associated with the management, data 
collection and analysis, and enforcement of the IFQ allocation program 
exceed 3 percent of the total value of tilefish landings, only 3 
percent are recoverable.
    (i) Valuation of IFQ Allocation. The 3-percent limitation on cost-
recovery fees shall be based on the ex-vessel value of landed 
allocation. The ex-vessel value for each pound of tilefish landed by an 
IFQ allocation holder shall be determined from Northeast Federal dealer 
reports submitted to NMFS, which contain the price per pound at the 
time of dealer purchase.

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    (ii) [Reserved]
* * * * *
[FR Doc. 2010-32691 Filed 12-27-10; 8:45 am]
BILLING CODE 3510-22-P